Balkinization: Liberalism, Republicanism, and Common Good Constitutionalism

Liberalism, Republicanism, and Common Good Constitutionalism

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

Despite its title, Adrian Vermeuele's Common Good Constitutionalism is more about general legal theory than it is about constitutional theory. Vermeule has surprisingly little to say about constitutional structure or about the various clauses of the U.S. Constitution. His discussion of federalism, for example, is primarily about subsidiarity, but as Vermeule himself points out, the two are not the same thing. Delegating decisions to California or Texas is not the same thing as handing them off to the smallest governmental unit competent to manage them.

Throughout the book Vermeule notes his intellectual debt to Ronald Dworkin. And like Dworkin, Vermeule wants to offer a constructive interpretation of the American constitutional system, describing it in its best light through a careful balance of fit with existing materials and justification according to the best political and moral theory. But, also like Dworkin, Vermeule is far more interested in justification than in fit, which makes some sense since a great deal of existing doctrinal structure has features he does not particularly like. Vermeule does not approve of the American emphasis on strong rights, he has little good to say about our system of scrutiny rules, and, as noted above, he has little to say—at least in this book—on questions of constitutional structure, checks and balances, separation of powers and federalism. His views about judicial review are broadly Thayerian and, perhaps not surprisingly given his primary field of expertise, he is at his most interesting when he discusses administrative law, not constitutional law.Vermeule argues that the deep structure of the American constitutional tradition is the classical legal tradition, which, he explains, was abandoned only recently. But his use of history is schematic and, in some cases, opportunistic. Here too, Vermeule cares more about justification than fit with the historical record. He engages in some handwaving when explaining when the classical legal tradition recedes, focusing on different points in time at different points in the book.

All of this is excusable if Vermeule is merely engaged in a reform project. And in fact, that is the best constructive interpretation of this book in the Dworkinian sense. That is especially so when we read this book in conjunction with Vermeule's other writings, where he is unabashedly post-liberal, integralist, and opposed to features of the sexual revolution.

In this book, however, Vermeule presents a selective (and soft-pedalled) version of his thought that seeks to appeal even to people who would fiercely disagree with his rejection of liberalism. Again, there is nothing wrong with trying to persuade people on some things even if you disagree with them about others. Even so, he should not claim that he is accurately describing the American constitutional tradition, or even the tradition up to the early 20th century, because he really is not.

A far more accurate account of the American constitutional tradition is that it is both liberal and republican, and that there is a creative tension between these two strands.

Many features of Vermeule's argument are far better explained by the fact that the American political tradition is republican. Take for example, his emphasis on the common good. Republican theory holds that both the law and the state (which is a res publica, or public thing) exist to further the common good, and that state officials should interpret and enforce the law to promote the common good. The idea that rights should be interpreted consistent with the police power (i.e., the power to promote the health, safety, and welfare of the commonwealth) is also a standard republican idea. Our current system of scrutiny rules is premised on republican ideas: each level of scrutiny asks for a demonstration that a law reasonably promotes some public-regarding value, with different degrees of deference based on the question at issue. Even the relatively toothless rational basis test asks for some showing that legislation promotes public-regarding values.

Perhaps, then, we should read Vermeule as just arguing for a revival of civic republicanism. That would not be at all strange. His co-author, Cass Sunstein, and his colleague Frank Michelman both promoted a republican revival in the 1980s, albeit for progressive ends. My own work has been increasingly influenced by the republican political tradition; for example, my theory of constitutional rot is republican.

So if Vermeule is just arguing for a revival of republicanism, I'm broadly supportive. It is what we need in this dark period in American democracy, when notions of the common good—and the very belief in the possibility of a common good—have increasingly been lost.

But as one reads the book it becomes clear that Vermeule is arguing for something quite different, and that he leaves out important elements of the republican tradition. We can see this in his general posture of deference to government officials, and especially executive officials.

The republican tradition certainly hopes that citizens and officials alike will possess civic virtue and be devoted to the common good. At the same time, it does not assume that government officials will in fact have civic virtue and be adequately devoted to the public good. Republican theory focuses instead on the fact that republics are difficult to maintain and easily corrupted; that government officials—and especially executive officials—are likely to engage in self-aggrandizement, self-dealing and a desire to maintain power; that representative government can easily slide into oligarchy; and that public officials will undermine the public good in the process. Anyone who has lived through recent American history can understand the contemporary relevance of these ideas.

Vermeule, by contrast, is comparatively complacent about these questions. Along with Eric Posner, he coined the phrase "tyrannophobia" to describe an excessive concern with government overreaching, self-aggrandizement and illegitimate attempts by rulers to entrench themselves in power.

But what Vermeule regards as a pathology of thought is actually a central idea in the republican tradition—and the liberal tradition as well. It is precisely because of a deep concern that public officials will become corrupt, misbehave, or try to entrench themselves in power that the republican tradition has focused on questions of separation of powers, checks and balances, rule of law limitations, and rights.

Moreover, this is not a new innovation of the twentieth century that emerged with the decline of what Vermeule calls the classical legal tradition. These concerns about civic virtue and corruption and the need to design constitutional systems to check power are present at the Founding and throughout American constitutional history. They are central to the American constitutional tradition and cannot be easily excised. Vermeule's interpretation of the American constitutional tradition is a bit like offering an interpretive construction of the game of baseball but without balls, strikes, bases, runs, and hits.

And that is just Vermeule's treatment of republicanism. He is, if anything, even more dismissive of the liberal tradition, and it is pretty hard to say that you are explicating the deep nature of the American constitutional tradition while throwing the liberal tradition under the bus. To describe this issue in detail would take another essay in itself, but I will content myself with one example: Vermeuele's attempt to explain constitutional change, which he wants to distinguish from progressive ideas of a living Constitution.

Vermeule looks to St. John Henry Newman's account of evolution in Catholic doctrine for an account of how constitutional law responds to change. In essence he calls for the application of timeless principles to new circumstances. That doesn't sound all that inconsistent with progressive constitutionalism—it describes Brandeis's account of living constitutionalism, for example. But Vermeuele wants to distinguish his views from living constitutionalism. So he contrasts his approach with the progressive "mythology," which, he explains, celebrates "endless liberation through the continual overcoming of the reactionary past."

But this formula, put in a less polemical form, is the liberal political tradition in American constitutionalism. The liberal tradition from Locke onward has focused on securing people's equal liberty. It often views existing social arrangements as only imperfectly securing equal liberty, and in some cases, as deeply oppressive and inconsistent with equal liberty. In these contexts, therefore, liberalism pushes for social change, or what Vermeule calls "liberation" from a "reactionary past."

Liberalism always sits uneasily with forms of hierarchy that it regards as unjustified according to its lights, and this is true both of libertarianism and left-liberalism. And that is why liberalism, at heart, is a philosophy of reform and change. To be sure, right-liberals and left-liberals have different targets for the repair of society, and at different points in history liberals may not see features of their own society as requiring reform. Even so, they agree on this central insight—that the goal is equal liberty, and to ensure equal liberty, one must reform society. Milton Friedman wanted to change society just as much as John Rawls did.

This inherent drive in liberalism explains why liberalism and republicanism are in creative tension, and why the American constitutional tradition is better described as liberal republican rather than as just republican. Traditionally, republicanism has been more accepting of social hierarchy, for example, the rule of households by men. That is why egalitarian reform projects in the American constitutional tradition have often been liberal. As Linda Kerber has explained, "When Elizabeth Cady Stanton and her colleagues wanted to demand a place in the republican polity, republican discourse helped them little. To sustain the proposition that all are created free, equal, and independent, they needed Locke, not Machiavelli."

Vermeule downplays the liberal tradition in American constitutionalism because, quite frankly, he is not a liberal, and doesn't think that hierarchy is all that bad. He doesn't see the point of the endless liberal project to remake society in the name of equal liberty, whether on the right (libertarianism) or on the left (liberal egalitarianism). But because he disdains the liberal project, which is a central feature of the American constitutional tradition, he can't claim that his classical legal tradition is "our law."

Posted 9:30 AM by JB [link]