Who's Afraid of Common Good Constitutionalism

Mark Graber

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

(thanks to Sandy Levinson and Jack Balkin for their advice)

American progressives at the turn of the twentieth century believed that courts should not interfere when legislatures adopted policies that reasonable persons might think pursued the common good.  John Dewey, Louis Brandeis and others maintained that persons did not have individual rights to interfere with the common good.  Individual rights had to be justified as means for pursuing the common good.  American progressives before World War Two thought legislatures and agencies bore the primary responsibility for identifying the measures that best pursued the common good.  Both were better positioned than courts for reasons of expertise and accountability to act in ways that promoted the health, safety, welfare, and morality of the entire community.  Many early twentieth century progressives supported legislation restricting speech and segregating races as means that advanced the common good.  The few progressives who supported judicial intervention, Brandeis on speech and T.R. Powell on race come to mind, did so on grounds that as long as Supreme Court majorities were bent on protecting individual rights, the justices might as well protect the “right” rights.

Common Good Constitutionalism echoes conventional early twentieth century progressive constitutional wisdom right down to the disdain for Lochner v. New York (1905), the case in which the Supreme Court over the dissents of Justices John Marshall Harlan and Oliver Wendell Holmes, Jr., held unconstitutional state laws restricting the working hours of bakers.  Professor Adrian Vermeule agrees with the 1920 progressive consensus that courts should not interfere when legislatures adopt policies that reasonable people think pursue the public good.  He maintains that individual rights must yield to the common good.  Following Edward Corwin, who condemned as vigorously judicial decisions striking down laws in the name of freedom of contract as judicial decisions striking down laws in the name of freedom of speech, Professor Vermeule not only fails to endorse any instance in which courts in the past found legislation unconstitutional, including Brown v. Board of Education (1954), but the text of Common Good Constitutionalism fails to point to any government action past, present, or future, that warranted judicial review.

Professor Vermeule diverges from such progressives as John Dewey in three ways. Common Good Constitutionalism regards Harlan as the hero in Lochner.  Dewey and his crowd celebrated the Holmes dissent.  Common Good Constitutionalism defends what Professor Vermeule describes as the basic contours of American jurisprudence until the New Deal.  The proponents of sociological jurisprudence thought they were breaking from the recent jurisprudential past, which they understood as celebrating property rights at the expense of the common good. Common Good Constitutionalism purports to integrate constitutional theory into a broader jurisprudential framework in which right answers exist to fundamental moral questions.  Professor Vermeule believes in natural law.  Dewey did not.  Dewey’s more pragmatic approach denied that truth existed outside of human perception.

Professor Vermeule champions the Harlan dissent in Lochner, but offers no account of the broader Harlan opus.  The Harlan Professor Vermeule celebrates was a proponent of judicial deference to the superior authority of legislatures in matters relating to the public good.  That Harlan wrote the majority opinion in Mugler v. Kansas (1887) and was the lone dissenter in United States v. E.C. Knight Co. (1895). The Mugler opinion defends state police power to ban drinking against an individual property rights claim.  The E.C. Knight dissent champions a broad federal commerce power to promote the public good.  The Harlan Professor Vermeule ignores was the most activist justice on the turn of the twentieth century Supreme Court. That Harlan objected in Plessy v. Ferguson (1896) to a state law mandating segregation on street cars and insisted in Adair v. United States (1908) that a state law banning yellow dog contracts violated the freedom of contract. He maintained in Hurtado v. California (1884)  that state power to pursue the common good is limited by the individual rights enumerated in the first eight amendments to the Constitution of the United States, similarly maintained in Hawaii v. Mankichi (1903) that federal power to pursue the common good when governing the territories is limited by the individual rights enumerated in the first eight amendments to the Constitution of the United States, and voted with the majority in Boyd v. United States (1886) in favor of a Fourth and Fifth Amendment individual right not to produce documents relevant to a criminal investigation, Common Good Constitutionalism discusses none of these cases.   Professor Vermeule does not consider United States v. Wong Kim Ark (1898), when Harlan wrote a racist dissent upholding federal power to deny citizenship to persons born in the United States.  

Professor Vermeule's selective treatment Harlan suggests that the gap between him and early twentieth century progressives is less than meets the eye, at least with respect to case outcomes.  Common Good Constitutionalism vigorously maintains that Harlan in Lochner offered better grounds for judicial deference than Holmes.  Professor Vermeule is uninterested in those cases, including Plessy, where most progressives scorned Harlan’s activism.  Most progressives at the turn of the century had little constitutional difficulty with segregation, which they saw as government regulation for the public good.  Had Harlan issued his opinions in Lochner, Mugler, and E.C. Knight, but not in Plessy, Adair, Hurtado, and Mankichi, he might have been as much a hero to Dewey as Holmes.  Brandeis was a hero to many early twentieth century progressives and his opinions outside of free speech far more resembled Harlan’s than Holmes’s in their detailed emphasis on the facts that led the legislature to believe the policy under constitutional attack advanced the public good.

The dispute between Vermeule and early twentieth century progressives over American constitutional history seems similarly insubstantial.  Vermeule and Dewey agree that Lochner was a constitutional abomination.  Common Good Constitutionalism treats Lochner as an unfortunate exception to the classical constitutional tradition that structured American constitutionalism until the New Deal.  Most progressives thought Lochner consistent with central strands of post-Civil War constitutionalism.  Many, following Charles Beard, thought the Constitution of the United States an instrument for protecting individual rights to the detriment of the common good.  Were Professor Vermeule writing a legal history, I might have some bones to pick.

The thrust of the argument in Common Good Constitutionalism, however, is normative rather than historical.  Professor Vermeule maintains classical constitutionalism is a better constitutionalism than new-fangled originalism or trendy contemporary progressivism.  He claims his constitutionalism is more faithful to the framers than either originalism or contemporary progressivism, but the normative argument does not depend on that point. The argument may require the uncontroversial claim that Americans historically regarded the public good as the test of legislation.  There is an important strain of common good constitutionalism in the United States, even if that strain was not always exclusive or dominant. Howard Gillman’s study of police powers jurisprudence before the New Deal provides powerful and sufficient support for that thesis.  Professor Vermeule needs no more.  Even if the relationship between rights and the common good is more complex than suggested by either Professor Vermeule or early twentieth century progressives, the status of common good constitutionalism does not depend on the precise nature of American jurisprudence in 1820, 1880, or 1905.

The import of Vermeule's commitment to a natural law that progressives scorned is as unclear, at least from a contemporary progressive perspective. Vermeule insists on grounding constitutionalism in natural law.  He prefers Harlan to Holmes because the former believed in a common good, that Vermeule claims reflects basic principles of classical constitutionalism.  Early twentieth century pragmatists rejected natural law or what Holmes derisively referred to as “a brooding omnipresence in the sky.”  Contemporary pragmatists are more nuanced.  Following Richard Rorty, they think human beings have nothing interesting to say about truth or natural law per se.  That Vermeule and Harlan believed in a natural law that Holmes rejected, Rortians think, has a far greater impact on how they phrase the conclusions they reach than how they reach those conclusions or the substance of the conclusions they reach.  For pragmatists, what matters are the conclusions, not the metaphysics. 

Consider possible differences on same-sex marriage between Professor Vermuele, the classical natural lawyer, and Graber, the contemporary pragmatist.  Vermeule insists that the classical tradition teaches that the point of marriage is procreation.  Many past restrictions on the right to marry that were independent of procreation, he thinks, were unfortunate historical accidents that have been rightfully abandoned.  I think the same history suggests that preserving the (white) race and male supremacy were at least as central to marriage as procreation.  If we look for the best justification of who we agree ought to be married, we will wind up with something closer to Justice Anthony Kennedy’s understanding of marriage in Obergefell v. Hodges (2015) than that advanced by Justice Samuel Alito’s dissent in that case.  Both of us are exploring what history teaches is central to marriage.  Both of us are asking how that history might be put in its best possible light.  At no point, at least from my perspective, do our metaphysical, ontological, or epistemological differences enter into the argument.  The same strikes me as true with respect to Professor Linda McClain's commentary on Vermeule just published in Balkinization.  The differences are over how each understands the common good rather than over the ontological status of natural law. 

An early twentieth century progressive would think none of the differences between Adrian Vermeule and John Dewey matter much.  Progressives who celebrated the Harlan dissent, thought the American constitutional tradition before the New Deal emphasized the common good, and respected natural law would not change their opinions on the best resolution of the most important cases before the Supreme Court of the United States.  One could easily reach all Professor Vermeule’s conclusions while celebrating the Holmes dissent, thinking Lochner typical of post-Civil War jurisprudence and rejecting natural law.  Consider the Black dissent in Griswold v. Connecticut (1965), a blistering attack on privacy rights from a judge who worshipped Holmes, hated early twenty-century jurisprudence, and had nothing good to say about natural law. Common Good Constitutionalism is more a language for debating constitutional problems than a formula for solving them.

Professor Vermeule’s core disputes with early twenty-first century progressivism may at bottom be over constitutional metaphysics and the application of fundamental principles, rather than the principles themselves. Vermeule scorns the sexual revolution that progressives celebrate, but Common Good Constitutionalism in principle may provide more support for the academic left than the Catholic right.  Progressive legislators use or could use the language of Common Good Constitutionalism when defending such policies as legal abortion. 

Common Good Constitutionalism in principle may also support judicial activism on behalf of abortion rights.  Much literature demonstrates that judicial review has political foundations.  Both courts and administrative agencies exercise power largely because elected officials want those institutions to exercise power.  The same arguments Professor Vermeule uses to justify administrative rule-making in clean air cases might justify judicial rule-making in abortion cases.

The classical tradition, at least in the United States, vested lawmakers with substantial constitutional responsibilities.  Nineteenth century treatise writers who urged judicial deference pointed out that the same person who might have a constitutional duty to vote against a law as a legislator might have the same duty to sustain the law as a judge.  A legislator contemplating legislation prohibiting bakers from working long hours or legalizing same sex marriage could not rely on the common good constitutionalism principles that Professor Vermeule thinks justified judicial restraint in Lochner v. New York and Obergefell v. Hodges.  An elected official or administrator faced with these decisions must decide whether the freedom of contract and same-sex marriage are superior means of achieving the common good, even if a reasonable person might conclude the opposite.

Elected officials committed to common good constitutionalism might consider keeping abortion legal and accessible.  The classical tradition rarely subjected abortion in practice to criminal sanction, even when abortion was banned on the books.  Sporadic efforts to enforce legal bans on abortion create more misery than save unborn lives, and almost always leave the affluent with abortion rights in practice.  A society might best flourish if women have the abortion services they need to contribute as equals in public life.  Or so the argument goes.  Nothing in Common Good Constitutionalism rules out these claims, other than a few passages indicating Professor Vermeule is pro-life.  The common good claim for abortion rights differs from the arguments in Roe v. Wade (1973) only in that they are appropriately adjudicated by elected officials rather than judges.  The common good transforms abortion from an individual right to be wielded against social welfare to an essential element of the good society imagined by the classical constitutional tradition.  I have yet to meet the pro-choice advocate who thinks that "justice, peace, and abundance," the core goods of common good constitutionalism, are better realized by bans on abortion than by keeping abortion legal.

Common good constitutionalism might be as consistent with judicial activism as the activist administrative state Professor Vermeule champions in this and other works. In Law’s Abnegation: From Law’s Empire to the Administrative State, Professor Vermeule successfully maintained (in my opinion) that the administrative state was grounded in congressional choice.  Agencies made rules because elected officials wanted agencies to have the responsibility for making rules.  A generation of political scientists (now joined by many law professors) are making the same argument with respect to courts.  Judicial power is grounded in congressional choice.  Courts make law because elected officials want courts to make law.  Suppose a legislature passed a ban on abortion with the following proviso; “the judiciary should review this law without any deference to the legislature's understanding of the common good.”  Would does mean when the legislature commands the judges not to defer to legislative policy choices? A court might defer to the legislature's substantive choices or the legislature's institutional choices.  Common Good Constitutional does not provide a basis for determining.  My hypothetical provision is extreme, but the difference between this hypothetical and political practice, those who detail the political foundations of judicial power agree, is one of degree rather than of kind. Elected officials frequently seek to empower courts to make contested decisions, just as the pass the buck to other institutions.  Once courts are analogized to administrative agencies in their creation and purpose, institutional barriers to independent thinking about the common good weaken substantially.

The ease with which progressives in the early twentieth and early twenty-first centuries can appropriate the central theses of Common Good Constitutionalism confirms that Professor Vermeule is offering a framework for rather than a resolution of contemporary constitutional debates.  The early twentieth century mantra that individual rights understood and implemented properly foster the common good provides a language accessible to almost all participants in contemporary debates.  Rather than ask Dworkinian questions about whether same-sex couples have a right to inflict harm on the body politic, contemporary progressives might channel Brandeis and ask whether society is better off when persons are allowed to make certain choices without government interference, such as the choice of marriage partner.  Rather than ritualistically chant that courts exist because fundamental rights should not depend on elections, we might better understand courts as the complex products of a series of electoral decisions.  When Republicans win elections and play constitutional hardball better than Democrats, the result is a different conception of the common good.  What we get is how Dobbs v. Jackson Women’s Health Organization (2022) understands the common good rather than how Roe v. Wade understood the common good.  At the very least, Common Good Constitutionalism provides a language that might enable Americans to talk to each other about cherished constitutional values and practices, rather than attempt to shut down the conversation by invoking fundamental rights without attention to their social consequences.