Balkinization: Adrian Vermeule's's rejection of "modern" constitutional theory

Adrian Vermeule's's rejection of "modern" constitutional theory

Sandy Levinson

For the Balkinization symposium on Adrian Vermeule, Common Good Constitutionalism (Polity Press 2022).

Perhaps because I myself quite often blurb books, I am interested in the endorsements that books receive prior to publication. Presumably, publishers want them to elicit the interest of those people, like myself, who even if interested in the general topic, nevertheless are forced to choose among the vast array of books that are available concerning, say, “American constitutional theory.” So I was especially interested in the blurbs accompanying the galleys of Adrian Vermeule’s Common Good Constitutionalism. His Harvard colleague Jack Goldsmith (like Vermeule, a friend of mine), describes it as “the most important book of American constitutional theory in many decades,” challenging conservatives and progressives alike and, therefore “destined to infuriate and to reorient.” Patrick Deneen, who teaches political theory at Notre Dame (and whose book Why Liberalism Failed I wrote about on Balkinization at the time of its publication, https://balkin.blogspot.com/search?updated-max=2018-06-12T15:23:00-04:00), commends Vermeule for writing “the most important and original book on constitutional theory for this generation.” He agrees that it “sound[s] the death knell of the seemingly unassailable camps of conservative ‘originalism’ and progressive ‘living constitutionalism.’” In their place, we are offered something “new [sic[ and better—a common good constitutionalism grounded in the classical tradition.” The third endorsement comes from Sohrab Ahmari, a conservative controversialist who agrees on the importance of “exposing the poverty of today’s prevailing legal theories” and the necessity of forging a different path.

I agree that this is truly an important book deserving wide readership and intense discussion. All books are necessarily written within a particular cultural or political moment. This was certainly true, for example, of previous “most important books of their generation” like Alexander Bickel’s The Least Dangerous Branch or John Hart Ely’s Democracy and Distrust, both written during Warren Court and its aftermath in what many called the Brennan Court. Whatever the critiques offered by both of those authors, there was a genuine confidence that the Supreme Court, if only properly chastened by the particular approaches favored by Bickel and Ely, could play vital roles in protecting and preserving what both viewed as a vibrant democracy. Bickel trusted the Court to discern our deepest “fundamental values,” such as a commitment to racial justice that required the invalidation of segregation in Brown v. Board of Education; Ely was less taken by the Court's ability to discern substantive values, but he did strongly believe that the duty to monitor the basic procedures of the republic and to engage in “representation reinforcement” to protect marginalized groups who could not in fact participate adequately in America’s system of interest-group politics (even if, as we have recently been reminded, he vociferously opposed Roe v. Wade at the time).

Vermeule, however, writes in a cultural moment where there is far less trust in, or even respect for, the federal judiciary, coupled with ever-increasing doubt that existing approaches to “constitutional interpretation” are adequate to the responding to what John Marshall called in McCulloch v. Maryland “the various crisis of human affairs,” to which the Constitution must necessarily “adapt” itself. What might be called “contempt of Court” is rife, especially on the left, but that is also increasingly closely accompanied, certainly in my own case, by increasing discontent with the whole enterprise of “thinking like a constitutional lawyer.” Does anyone expect those who disagree with us regarding any truly important “legal issue” to be persuaded by what Antonin Scalia dismissively termed the “argle bargle” of standard-form legal argument? Do “we” ourselves often change our minds when reading legal opinions authored by, say, Samuel Alito or Clarence Thomas? The events of the past month, including, most notably, the Dobbs case reversing Roe, has exposed the hollowness of the hope that what used to be called “reasoned elaboration” would, as somewhat pathetically asserted in the famous plurality opinion in Casey in by Justices O’Connor, Kennedy, and Souter, bring the national debate to an end because the Supreme Court, had, after all, issued its ukase. What constitutes the "rule of law" is itself increasingly mysterious.

We are definitely in a season of continuing discontent that is roiling the legal academy itself as well as the general public. Both the right and the left, at least in terms of legal theory, appear increasingly fractious internally as well as with each other. Vermeule is a caustic critic of both. He is a biting critic of what he identifies as the two predominant approaches on offer these days, the “originalism” associated with most contemporary conservatives, including the current majority of the Supreme Court, or the embrace of a “living constitutionalism” associated with those on the left. Our own Jack Balkin tries to split the difference by elaborating what he calls “living originalism,” but Vermeule, although respectful, clearly does not believe that Balkin has squared the circle. And, although he doesn’t develop the point, he would surely be properly hostile to an embrace of “precedent” that avoids any discussion of the propriety of the original decision and the extent to which it serves us well today.

Although Vermeule is often seen as a conservative, I suspect that at least as many conservatives as liberals will be discomforted by the book. Consider, for example, a recent summary offered by Rosalind Dixon and David Landau of what conservatives have described as the “constitution in exile” that is, presumably, being restored by the new majority on the. Supreme Court. According to Dixon and Landau,

the focus has been restoring three aspects of the pre-1937 constitutional position in the US: first, a much smaller federal government, with limited responsibility for social welfare provision, and greater power for the states; second, greater responsibility on the part of Congress, compared to federal agencies, and third, stronger protections for property and contract rights.

It is safe to say that Vermeule exhibits no real regard for any of these three aspects. Nor, importantly, does he have the slightest patience for the currently preferred approach to constitutional interpretation identified with conservatism in general and the current Supreme Court majority in particular, “originalism.” Common Good Constitutionalism, contains, among other things, a critique of originalism that should, if taken seriously (which it should be) bring an end to that entire dreary project. There is, therefore, remarkably little in this book that gives aid and comfort to those identified as contemporary American “conservatives.”

I begin with the favored “approach,” i.e., originalism. It is not simply that originalists (especially those on the Supreme Court) prove recurrently incompetent (or outright dishonest) in their use of historical materials; rather, it is even more significant that the project rests on an ultimately mindless positivism that assumes that our duty as legalists is simply to carry out orders given us by discrete individuals or an inchoate public alive in 1791 or 1868 whose “public meaning” is supposed to bind us today. As Vermeule puts it (p. 116), originalists ultimately betray a “horror of judgment.” That is, they pretend only to obey the orders issued by past persons or groups with authority to command. (Actually, the so-called originalists on the Court are none too clear about the actual dates that circumscribe alleged "public meaning.") The job of a judge is not to assess the cogency of those orders, especially in the changed circumstances of the 21st century, but simply to enforce them, regardless of consequences. “Living constitutionalist,” to be sure, recognize the importance of changed circumstances, but, Vermeule argues, they are unable to provide a firm foundation for the values that they in fact endorse as important parts of any acceptable legal project. Generally speaking, they emphasize the importance of responding to the existing preferences of the contemporary American public, a concept that is anathema to Vermeule for reasons entirely different from those of purported originalists.

I am put in mind of Si Prakash’s recent book, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers (2020), that was equally critical of contemporary conservatives and liberals. Both, Prakash argued, ignored the original Constitution’s creation of a quite constrained presidency. Conservative originalists simply distort the history when they like the particular overreach; liberals happily ignore it but can not, however, really explain why they supported certain “ever-expanding powers” while opposing others. The difference between the two, though, is that, unlike Prakash, himself an originalist, Vermeule derides the entire project and wants to replace it with what he would term a return to the “classical tradition” rooted firmly in “natural law.” This means, among other things, that he is quite willing to accept much executive action, particularly during times of emergencies, that is presumably motivated by an attempt to defend the "common good." There are few, if any "rules" in Vermeule's legal universe; what dominates is the overarching "standard" of trying to achieve the "common good." And actually fulfilling that standard should be informed by reference back to the eternal standards of "natural law."

Thus the first two chapter of the book are a delineation of that tradition, which emphasized, as the overall title suggests, the ultimate aim of the state as achieving the “common good” of its citizens. We are all conceived as in effect enrolled in a singular common project of seeking the common good, which, by happy coincidence, will also achieve our own personal good; that is characterized precisely by a willingness to seek what is morally required of us and then to do it. Recall, for example, that Socrates disputed that the life of an all-powerful tyrant could possibly be better or even genuinely "happier" than someone committed to the path of justice and decency. It is that path that Vermeule exhorts us to follow and, more to the point, believes that the state itself can require of us. Like Deneen, Vermeule vigorously denounces all forms of liberalism, including, obviously, libertarianism, that valorize individual desires and that view the task of a political system as the aggregation of “preferences” held by the discrete individuals within a social order. Down that road lies moral decay and, ultimately, social disorder.

Vermeule is, of course, not first person to criticize important aspects of our contemporary “liberal tradition.” He does not mention, for example, Michael Sandel’s now four-decade body of work that criticizes the asocial and individualistic premises of much liberal theory (including that of John Rawls) in favor of accepting our ineluctable identity as “embedded” members of communities that have their own legitimate claims on our loyalty. And John Dewey and other Progressives certainly gave priority to achieving the common good. But the all-important difference between Sandel or Dewey and Vermeule is that the former are ultimately “moderns” who appears to recognize the reality of moral pluralism, even if they rejects the liberal fantasy that there are ultimately “procedural” solutions to the conflicts generated by pluralism. Like Vermeule, Sandel is critical of prioritizing the “right” over the “good.” Unlike Vermeule, though, Sandel does not provide any notable pathway to identifying the “good” that should take priority over individual rights or hard-wired procedures.

As already suggested, Vermeule does identify the pathway, Although he refers throughout to the eternal truths captured in the “natural law,” it is hard not to believe that Vermeule, a relatively recent convert to Roman Catholicism, is really suggesting returning to a world that is, by and large, ruled by the injunctions of the Catholic Church regarding how (all) human beings should live. The teachings are suitably complex. From one perspective, he is an ardent supporter of what might be termed the welfare-state. In line with the rich tradition of Catholic social justice, he has little patience with notions of a “limited state” that must be indifferent to the straitened circumstances of those living within it. (Thus his disdain for libertarianism.) Indeed, Vermeule will also lose many conservative readers in his unabashed endorsement of the “administrative state,” which he correctly realizes is vital to achieving what the Constitution calls the “general welfare” to which our polity is presumably committed. If one returns to the list compiled by Dixon and Landau of what constitutes the alleged “constitution in exile,” it is clear that Vermeule wants none of it. If he is a "conservative," he is one who believes in a very powerful government indeed!

So what will “infuriate” leftish readers of the book, given its de facto endorsement of what one might think of as the post-New Deal American state and the wide berth given Congress to legislate in the public interest (and to create administrative agencies to make many, if not most, of the specific decisions of how best to achieve the public interest during, say, a time of pandemic or environmental challenges)? The answer is relatively simple: The “welfare” that the state should be committed to protecting, the “common good,” includes a definite moral component. Vermeule takes seriously the trilogy of "health, safety, and morals," whereas most contemporary liberals (including myself) are happy to stop with the first two before arguing that the state is obligated to recognize and accept the reality of moral pluralism. Modern liberalism, going back at least to Thomas Hobbes, is built on the recognition of that pluralism. There is no single right way to live one’s life. We are (or at least should be) ultimately be free to choose for ourselves how to live, whatever the opprobrium that might be felt by “traditionalists.”

Rawls sought to achieve an “overlapping consensus” among plural groups, but never for a moment did Rawls genuinely believe that the pluralism could be genuinely overcome. From one perspective, the patron saint of modern liberalism is Isaiah Berlin, always suspicious and ready to proclaim as potentially “totalitarian” anyone who spoke too easily of “the general will” (Rousseau) or, indeed, the “common good” as declared by the Catholic Church. The central aim of liberal education, as argued by Meira Levinson in her book The Demands of Liberal Education, is the creation of autonomous citizens who, taught to "question authority," can decide for themselves, whatever their parents might prefer, how to live their lives. That repels Vermeule. He wants the modern state to concern itself not only with achieving the great ends of “peace, safety, and abundance,” but also to creating a correct set of internal moral dispositions. To quote the title of an important book by Princeton political theorist Robert George, the state can legitimately concern itself with Making Men Moral.

And moral truths exist in the now ancient reality of natural law. Instead of “living constitutionalism,” Vermeule prefers the term “developing constitutionalism,” where “development” refers to a base in fixed, never changing, moral imperatives that might, admittedly, have to be pragmatically interpreted in light of particular real-world considerations. But the point is that there is no “progress” in values; we only build on what has always been there, perhaps in Aristotle, but, even more certainly, he implicitly suggests, in the universal teachings of the Catholic Church. One must, for Vermeule, always distinguish between “legitimate” and “corrupt” development, the latter of which seems always to involve rejecting basic values of the past in terms of new and presumptively (but falsely) better ones. This comes out most clearly in his denunciation of the Supreme Court’s decision in Obergefell. It is not simply that, like many devotees of “judicial restraint,” he would have left the issue of same-sex marriage up to the states. (As a matter of fact, Vermeule has not much more regard for constitutional federalism, i.e., what many call embedded “state’s rights,” than he does for originalism.) Instead, he wants his readers to agree that the move away from “traditional,” procreation-oriented, marriage is itself corrupt. And, it perhaps should go without saying, he views acceptance of abortion as equally corrupt.

He even notes, perhaps simply mischievously, that prosecutions for blasphemy were common in the United States until well into the 19th century and even, occasionally, into the 20th. He therefore correctly notes that the modern law of “freedom of expression” is the creation largely of post-World War II political liberals (though now embraced by many conservatives when, for example, defending the rights of wealthy individuals and corporations to corrupt the political process in the name of free speech). It is obvious that he would upend much of that law, especially insofar as it protects, say, pornography and, perhaps, all "immoral" literature or art. But the real point is that all laws would ultimately be assessed on the degree to which they contribute (only) to “the common good” as defined, by and large, by legislatures and not by courts. One expects that this aspect of his argument will lead many contemporary liberals in the ACLU to join unhappy conservatives in the Federalist Society or the Cato Institute to fling the book across their rooms.

This is, ultimately, a relatively slight book, more announcing a program than providing anything that could be called a truly worked-out delineation of all of its potential consequences. It should be obvious that there is much to ponder, both for good and for ill, whatever one’s own politics. I close with two further observations about the difficulties of placing Vermeule within any particular political box at the present time. First, I’ve already noted his basically warm support for most features of what one might identify as the post-New Deal state, including its (professed) concern for the less-well-off and the use of administrative agencies to implement what are often quite vague laws. Vermeule is not an opponent of redistribution of wealth per se, so long as it is done to achieve the common good. Stalwart defenders of "property rights" will find no friend in Vermeule.

By relying on the agencies to identify overarching “principles” drawn from the ius of the classical tradition and of natural law, Vermeule also quite unabashedly endorses much (though not all) of the approach to law identified with Ronald Dworkin. Like Dworkin, he believes that all law can be understood only against a background of unwritten principles. The belief that if it isn’t written down, it isn’t really law is rejected equally by Dworkin and Vermeule. Dworkin was always somewhat vague about where the principles came from; Vermeule connects the dots, as it were, and argues that they lead straight back to classical law beginning in Rome. Balkin has written elsewhere of the phenomenon of "ideological drift." It is therefore fascinating to see Dworkin so warmly embraced, even with some reservations, by someone whose politics in many ways are so different from his.

But a second point occurred to me when finishing the book: Much contemporary conservatism is nationalist. A state should be devoted to the interests of its discrete people; at worse, this can lead to a culture of “wall-buildlng” and absolute indifference to what is happening outside the walls. A recent article in The New Yorker noted that Deneen paid an altogether respectful visit to Budapest to commune with Viktor Orban, the self-described "illiberal" authoritarian currently leading Hungary along a Christian nationalist path. I detect none of this in Vermeule’s text. He is, I suspect, glad to take on the label of "illiberall," as illustrated, perhaps, in a trip he made to Poland to participate on a panel with a defender of that particular form of contemporary illiberalism. But that does not seem to lead to any kind of nationalist parochialism on his part. "Authoritarianism," which Vermeule is willing to embrace, so long as the "authority" is questing for the "common good," is not necessarily synonymous with nationalism.

Who exactly is part of the “commons” whose good should be achieved? Is it only, for example, citizens, or even current residents? Or must one ultimately view all human beings as part of a common enterprise to achieve a “common good”? What is most striking about the modern Catholic Church is that it is a truly “universal” Church in a much deeper sense than was the case, say, in the 15th century or even most of the 20th century. It is no small matter than the current Pope is from Argentina, and it would shock few if his successor turns out to be from Africa. In 1985, when visiting Rome after spending a semester in Jerusalem, I attended a Papal Mass at St. Peter’s Church, and the central event of the Mass, at least to a non-Catholic onlooker, was the investiture of eleven new bishops. They were literally from around the world; it was quite a stunning moment. (And, of course, the Pope doing the investing was himself from Poland, itself a stunning new moment in the history of the Church.) As Istvan Deak wrote many years ago, the Church has often set itself against what he called “crazed nationalism,” precisely by valorizing universal values that took precedence over parochial and often bigoted national concerns. Just as there are varieties of liberalism (including, for that matter, Yael Tamir's Liberal Nationalism, so must we realize that there are varieties of illiberalism).

So I look forward to Vermeule’s future elaborations of his project and the degree to which he will turn out to be as critical of renewed American nationalism as of originalism and “living constitutionalism.” His will be a voice to be reckoned with, not least because it does appear to be clear that the basic frameworks of American constitutional theory are more and more precarious and in need of rebuilding. I am not ready to join him on his particular path. But, as that ur-liberal John Stuart Mill.pointed out 160 years ago, one learns more about one's own commitments, including their strengths and weaknesses, by confronting well-presented arguments that one ultimately rejects, then from reading yet one more book where one nods one's assent throughout.

Posted 9:30 AM by Sandy Levinson [link]