Evaluating Vermeule's Challenge to Constitutional Theory and Originalism

Stephen Griffin

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

What I offer here is a series of comments on Vermeule’s highly provocative book Common Good Constitutionalism rather than anything approaching a regular review.  My comments are necessarily limited to the topics with which I am most familiar – “necessarily” because I think all would agree that this relatively short book is extraordinarily wide-ranging and shows (almost) throughout the measured grip of a formidable intelligence.  Grappling with Vermeule’s arguments will be rewarding for (almost) everyone.

 Let’s begin with Vermeule’s account of the common good, the key idea he wants to use to reorder constitutional theory.  Setting aside for a moment the resonant label, how he locates the concept in the realm of political theory may sound more than a little familiar to those who followed constitutional theory in the 1980s.  Vermeule describes a concept that is inherently anti-utilitarian, anti-aggregative, and concerned first and foremost with the res publica.  It is opposed to tyranny and faction (understood as rule for private benefit) and tries to avoid the domination of weak government by petty tyrants.  On the positive side, “the ultimate genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis.”

Surely this recalls republicanism, that collection of political principles derived from classical antiquity and updated in the European political tradition which so occupied 1980s legal liberals looking for a usable past and an alternative way to describe a form of constitutional government that was not uniformly hostile to the exercise of state power.  But here we may begin to doubt whether Vermeule has accurately located the debate to which he obviously means to contribute.  For he defines the opponents to republican “common good constitutionalism” somewhat curiously as originalists and progressives – that is, he looks for opponents in constitutional theory narrowly construed rather than staying with political theory.  To me, this is counterintuitive.

As Vermeule says, one way to understand a theory is by defining who is opposed to it and why.  All very well, but suppose we stay with political theory in looking for the contemporary opponents of his version of republicanism.  My reservation about his argument is that his real opponents are elsewhere and more difficult to defeat than he thinks.  On the right, his opponents are not “originalists,” but libertarians who are systematically skeptical about deploying public power in service of a supposed “common good.”  At points Vermeule appears to recognize this, but does not analyze libertarianism in any detail.  To do this he would have to confront why libertarians are skeptical about state power, given especially the horrific political history of the twentieth century.  I think this would also lead him to a more productive engagement with why the focus of constitutional theory moved away from the common good approach he favors with its emphasis on harmonizing positive law with the ius gentium and the ius naturale.

On the left, we could usefully stay with the term “progressives,” but not understood as living constitutionalists which is, again, a position in constitutional theory rather than political theory as such.  If Vermeule wants to confront progressives in a meaningful way he should acknowledge that they are driven by their conviction in light of American history that the eternal legal order posited by Vermeule has structural problems that have reproduced severe inequalities based on race, gender and other factors that have detracted from human rights, human welfare, and human flourishing.  It is telling (although I don’t say completely wrong) that Vermeule takes Obergefell and the issue of same-sex marriage as the hallmark of contemporary progressivism rather than racial inequality, surely the issue that started progressives down the path of recognizing arbitrary inequality wherever they turn.  To this concern Vermeule has nothing to say, although arguably the civil rights movement (which, like other significant social movements of the twentieth century, does not make an appearance) appealed in multiple ways to the ius gentium and ius naturale.  The equal protection clause and familiar theories of minority rights like Carolene Products as well as feminist legal theory are absent from his account of progressivism.  And his brief, dismissive comments on issues like abortion and same-sex marriage will not impress anyone in the progressive camp – which is why I said above that although grappling with his book is rewarding for me, it will not reward everyone.

Vermeule’s arguable misidentification of his opponents is likely related to another problem with the structure of his argument which is he has no explanation of why the common good as he understands it dropped out of American law in the twentieth century.  This should make us wary.  He speaks of a de facto acceptance of legal positivism as if it came from nowhere.  But the growth of legal positivism in response to the vast economic and social challenges America faced in the late nineteenth century has been well documented by historians, going back at least to the work of Edward Purcell and Dorothy Ross.  Although I lack the time to develop this point, Vermeule’s use of highly criticized cases like Curtiss-Wright and his super-broad reading of McCulloch to back assertions that the Constitution embodies the common good approach will raise eyebrows in many quarters.

These critical observations should not detract from the value Vermeule provides along with the many acute observations about American legal theory that pepper this work.  Many of these concern originalism, a theory I’ve been researching and thinking about since the 1980s.  A short lecture I’ve recently given on the subject is posted to YouTube here.  I’ve also looked at some of the early responses to Vermeule’s critique of originalism, especially those by Steven Smith and Christopher Green, and my observations below are informed by them, although due to limited time my comments may be overly telegraphic.

Originalist commentators have been quite surprised by Vermeule’s adoption of Dworkin’s objections to originalism, some of them dating back to Robert Bork’s work.  Originalism, they say, has moved on from Bork’s “expected applications” variant.  This is unfair to Vermeule, who makes clear he is drawing on Dworkin’s entire body of work, which extends at least from 1990 to 2006 (although I think Dworkin’s 1981 article “The Forum of Principle” is also important here – I should note I took a seminar from Dworkin the semester he published Law’s Empire).  Dworkin, after all, was well known as something of a moving target and, as Vermeule notes, reformulated his critique in response to developments in originalism.  Notably, he assessed the “semantic turn” advocated by Justice Scalia in responding to Scalia’s Tanner Lectures.  Dworkin’s critique was not confined to Bork’s work.

Vermeule makes good use of Dworkin.  I can hardly say otherwise, for the specific point Vermeule makes (p. 97) concerning how public meaning originalism can lead to readings not anticipated by anyone who actually wrote, debated, and adopted the text is the one I press in the context of the Reconstruction Amendments in my article “Optimistic Originalism.”

At the same time, with reference to Dworkin, arguably Vermeule does not take proper account of Lawrence Solum’s body of work.  Solum tries to pin down what is questionable about Dworkin’s theory of law for originalism, with its distinction, to which Vermeule frequently adverts, between “fit” and “justification.”  It appears that pressed hard, Dworkin’s emphasis on using “justification” to decide hard cases would allow readings that are clearly inconsistent with the original public meaning of the text, something no originalist could agree to.  In such cases it does appear that there is a clear difference between what originalism would not allow and what Dworkin’s theory does.  In the world of political and legal rhetoric, this point plays out as the justifiable suspicion that followers of Dworkin’s approach are all too willing to play fast and loose with the text.

Along the same line, Vermeule does not assess Solum’s appeal to what might be called the “fact of communication,” the reality that the founding generation did purport to understand the proposal before them, whether in terms of the original Constitution or the Bill of Rights.  I took Solum’s early work on “semantic originalism” to be exploring the possibility of non-normative originalism, something Vermeule obviously thinks is impossible.  Maybe he is right, but he needs to say why.  Here we reach what is really at issue between Vermeule and his originalist critics.  His critics believe developments in originalist theory, some pioneered by Solum, have freed them from Dworkin’s normative critique.  Showing that Dworkin’s normative critique still has bite (something I think is true) would require more work than Vermeule is willing to do here.

However, in the spirit of one more “on the other hand,” Vermeule does have reason to think originalists are ignoring problems with their theory in reference to Jack Balkin’s advocacy of a “thin” theory of meaning.  It is disappointing and a hindrance to what Solum calls the “great debate” that originalists have been so unwilling to grapple with the choice Balkin presents between adopting the thin theory and rejecting it in favor of a thicker account of original meaning which necessarily would have to be powered by recourse to contextual evidence (derived, sotto voce, from framer expectations) to bulk up the text’s semantic meaning and so avoid the challenges presented by hard cases.  So far, especially in the context of Reconstruction as I show in "Optimistic Originalism," very few originalists have been willing to grapple with this challenge.

On balance, although Vermeule’s critique of originalism is far from complete, he is also far more on target than originalists are willing to admit.