Common Good Constitutionalism and Constitutional Design: Continuity and Evolution in Vermeule’s Thought

Guest Blogger

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

I have not been shy about my enthusiasm for the revival of the classical tradition in public law thought. It will come as no surprise, then, that I regard Professor Vermeule’s Common Good Constitutionalism (Polity 2022) as one of the most important works of legal theory of the last several decades. 

I say this by way of justification for the approach I am going to take with my contribution, which is to not focus on the book as a standalone work. I will avoid doing this as I think it would be profoundly boring for the readers of the blog if I were to merely register agreement with the book’s premises and the application of the classical tradition to core questions of public law. 

Instead, I think it would be more interesting to try and set this work within Vermeule’s broader public law corpus. I want to offer a brief constructive interpretation of Vermeule’s thought on constitutional design by putting his previous work on these issues in conversation with his recent embrace of the classical legal tradition so prominently on display in Common Good Constitutionalism. What emerges, I suggest, is a picture of both evolution and, perhaps more interestingly, striking continuity.

Vermeule on Constitutional Design Pre-Common Good Constitutionalism

A central strand running through Vermeule’s work has been critique for a certain mode of thinking about constitutional design, one he dubbed ‘precautionary constitutionalism’. Namely, the view that the main or primary purpose of constitutionalism is to prevent, or minimize to a large degree, the risk public power will be abused, and that the priorities of constitutional designers and regulators should flow accordingly. 

One objection advanced by Vermeule was that this way of thinking could cause severe tunnel vision about a whole range of other risks, that are closely linked to the extent a state is hamstrung in its ability to project public power. For example, focusing on curbing the risks of state abuses of power can lead to comparative neglect of preventing abuses of private power that can come from being hurt or subordinated by market forces or employment exploitation, and the vagaries of ill-health, poverty, and pollution. Vermeule suggested proponents of precautionary constitutionalism had a blind spot for how legal power can be seriously abused by individuals and corporations using common law or constitutional rights to things like property and contract – often enforceable via Courts - to impede the human flourishing of others. 

A related objection, advanced in the Constitution of Risk, Publius Paradox, and Law’s Abnegation is that seriously hamstringing the state’s power to respond robustly to social and economic issues of great concern to the polity, based on a fear it will otherwise act in an abusive fashion, threatens sparking impatience and contempt for constitutional institutions perceived as a chokepoint to effective political action, risking demand for extraconstitutional Caesarism. 

Much of Vermeule’s work also emphasised the inevitably high degree of choice permeating decisions about interpretive method. From early on, Vermeule consistently argued that there is nothing legal interpretation just is that self-evidently flowed from the enterprise of trying to faithfully interpret posited law. Rather, choices must be made and defended at both a highly theoretical level - about the aims or ends of interpretation – and subsequently at a more retail level about the kind of doctrine rules and tools that best conduce to securing these ends. Courts, said Vermeule, must “choose interpretive doctrines on largely empirical grounds, under conditions of severe empirical uncertainty, often without the luxury of postponing their decisions.” 

In terms of his positive treatment of constitutional design questions, Vermeule advocated for an optimizing approach, one that approached designing rules and allocating authority following fulsome and rounded assessment of the risks and harms both avoided, and exacerbated by, different constitutional rules. For Vermeule, such an analysis generally yielded the rule of thumb that constitutionalism should be treated like a “loosely-fitting garment, giving government ample powers adaptable to the vicissitudes of future crises” and stream of unpredictable events facing contemporary polity’s. More specifically, in works like Law and the Limits of Reason, The Executive Unbound and Law’s Abnegation he defended a combination of a robust executive-led administrative state that would drive policymaking, a legislature with considerable authority over constitutional interpretation, and a modest judiciary geared to policing the outer bounds of executive and legislative authority. 

Vermeule defended this configuration in polity’s like the United States (amongst others) on the basis that without an evolution to executive-centred government, a state’s capacity to regulate socio-economic life, and respond flexibly to policy issues for the general welfare and public interest, would be seriously dented. The impressive expansion of the administrative state and its discretionary authority represented, in Vermeule’s eyes, a reasonable and non-myopic set of political/legal judgments about how to best ensure constitutional institutions remained aptly structured to pursue the general welfare. 

For Vermeule, judges should play a modest reviewing role over legislation and agency action, because of their relative institutional unsuitability for competently subjecting the work of the political branches to searching reasonableness review, or second-guessing the trade-offs between values like legality, technocratic competence, and democratic accountability that these actors make when issuing ordinances. Much of Vermeule’s prescriptions for the judicial role were rooted in skepticism about how far their institutional capacities could be stretched when reviewing political branch action. In respect of authority to interpret statutes for instance, Vermeule advocated for judicial deference to agency interpretation of statutes and regulations where they are ambiguous, based on institutional arguments about the “specialized competence and relative accountability” of executive-supervised agencies relative to courts. When taking a first cut at interpretation, he urged judges to opt for doctrines, rules, presumptions and canons that reduced the risk of legal uncertainty and litigation, which for Vermeule cashed out in a tentative defence of a formalist presumptive rule-bound textualism, and rejection of more capacious purposive approaches. 

When it came to constitutional interpretation, Vermeule’s preference was that judges adopt a disposition of Thayerian deference to Congress. In other words, that they should reserve to themselves a relatively modest, but still important, role in policing the outer bounds of congressional interpretive authority by curbing clearly mistaken or bad faith interpretations of the Constitution. Here, Vermeule argued that legislators’ advantages in “numbers, professional diversity, intra-institutional specialization, and sheer information” make them better suited for having the primary say over the interpretation of vague, open-ended, and deeply morally laden text than a small group of professionally homogenous, epistemically constrained, and unelected lawyers. Statutes encoding interpretive choices about the Constitution should, for these reasons, receive judicial deference whenever the Constitution is vague, general, aspirational, or ambiguous, which Vermeule accepted was frequently. 

Embracing the Classical Tradition: Continuity and Evolution

Vermeule’s rich constitutional critiques and insights were accompanied by a measure of ambiguity about his own ultimate normative commitments. To be sure, Vermeule’s antipathy to classical liberalism and libertarianism were plain to see for a long time, given his frequent references to the importance of governmental pursuit of “welfare” and the “public interest”, and the importance of the provision of goods conducive to these ends such poverty relief, healthcare, labour rights, environmentalism, social security, and consumer protection. It was these same ends Vermeule considered structurally ill-served by a constitutional system with a weak executive, modest administrative state, powerful Courts, and policy-driving legislature. But aside from a clear commitment to positive constitutionalism and a high-level communitarian concern for the general welfare, the precise normative yardstick Vermeule measured his constitutional insights against remained somewhat under-determinate. That is, until his embrace of the classical legal tradition. 

Aristotle observed in his Politics that he who would “duly inquire about the best form of state ought first to determine which is the most eligible life; while this remains uncertain the best form of the state must also be uncertain”. In Common Good Constitutional Vermeule offered his most emphatic account yet of the “most eligible” form of political life by embracing an Aristotelian-Thomist understanding of the purpose of law and political authority. For Vermeule, the ultimate genuinely common good of political life is the happiness and flourishing of the community, the well-ordered life in the polis. It is the structural political, economic, and social conditions which allow communities to secure the genuine human flourishing of its members. It is not the sum of subjective individual goods, nor a utilitarian view of the general welfare, but the indivisible good of a community enjoying goods of peace, good order, and justice that belongs jointly to all and severally to each and are not diminished in being shared (pp. 7-15). 

Vermeule now regards all posited law as part of a wider juridical ordering of the polity to the common good.  In the classical legal tradition law is understood, as St Thomas Aquinas famously framed it, as an ordinance of reason promulgated by political authorities for the common good.  To count as law in this focal sense, a posited law of a public authority must rationally conduce to the good of the community for which the lawmaker has a duty and privilege of care. The natural law offers a skeleton law to communities which determines what posited arrangements are just and right, but to enjoy concrete existence it requires the sinew, flesh, and muscle provided by positive law enacted through human creativity and discretion. This is what Aquinas dubs “determination”, a process whereby a political community specifies how to respect the open-ended and broad precepts of natural law and to promote human flourishing prudently in light of concrete circumstances and needs (pp. 9-11). 

Even with this new normative core at the heart of his work, it is interesting to note the high level of continuity present in Common Good Constitutionalism. For example, in some respects, Vermeule’s embrace of the natural law tradition has only subtlety impacted his basic approach to legal interpretation in a large run of scenarios. As noted, Vermeule previously argued for a form of formalist rule bound textualism due to its conduciveness to goods of political morality linked to legal stability and predictability. A flavor of this argument remains in Common Good Constitutionalism. 

The classical tradition entirely accepts that legal interpretation will not involve all-things-considered moral arguments from first principles by all officials. Vermeule accepts that technical interpretive rules and standards which channel and constrain legal interpretation – for example forms of textualism or judicial deference to reasonable agency interpretations of law – are entirely consistent with the classical tradition. Echoing his previous arguments on interpretive choice, Vermeule argues that classical lawyers should regard interpretive rules as determinations justified through appeals to goods of political morality internal to law which conduce to the common good when adhered to by political authorities. On this basis, Vermeule continues to argue a presumptive form of textualism may be justified, for the ordinary run of easy cases, by appeal to goods like stability, predictability, and respect for legitimate authority. 

Another continuity is that Vermeule continues to caution against myopia in constitutional design. Design of constitutional institutions and the allocation of authority between and among them in any given polity will be within a wide scope of reasonable determination (pp.9-11). Such decisions should ideally follow what Vermeule and I refer to in Myths of Common Good Constitutionalism as “painstaking and non-myopic analysis of the tradeoffs between different political risks” that different institutional structures entail, and which form is most apt for securing the constitutive conditions of the common good in a particular polity. Yet another element of continuity is that Vermeule continues to argue that there are forms of constitutional ordering – centered on robust executive government – that are likely to be particularly prudent and conducive to pursuing the common good under contemporary socio-economic conditions in polities like the United States. 

For Vermeule, the core advantage of an executive-led separation of powers, above other ways of allocating authority, is that it can allow the executive to better infuse the technocratic work of the administrative state with an explicit political vision oriented to the common good, aligning its extensive regulatory outputs to goals conducive to this end. In other words, the political executive is the actor best placed (over judges or legislators) to steer the potent capacity of contemporary administrative states - their welter of adjudicative, advisory, rulemaking, and investigative powers - toward valuable ends of peace, justice, and abundance. 

The largest evolution in Vermeule’s constitutional thought is perhaps the significant modification he makes to his approach to constitutional and statutory interpretation in respect of hard cases. While Vermeule remains agnostic to the allocation of interpretive authority between constitutional actors, he is emphatic that whatever stripe of official is engaged in interpretation, must recognize that principles of ius and political morality can never be entirely excluded from interpretation of legal materials. Common Good Constitutionalism demonstrates (pp.75-76) a considerable loss of belief in the possibility of complete formalism in legal interpretation, and greater appreciation of the Thomistic insight that the limits of lawmaker’s foresight may require recourse to ius in unusual cases to ensure posited ordinances remain reasoned and oriented to the common good.  While a form of presumptive textualism may be suitable for a great run of cases, there will inevitably be questions about the proper meaning of lex where it is ambiguous, can be read at multiple levels of generality, or where on a plain meaning would not track the common good and thus misfire as a reasoned ordinance. For Vermeule, in such cases posited law – statutes and constitutional text – ought to be harmonized with background general principles of natural law themselves ipso jure part of the legal system (respect for life, health, the family, solidarity, subsidiarity etc) where at all possible. 

Conclusion

Vermeule’s embrace of the classical legal tradition has not entailed a repudiation of the core thrust of much of his previous public law works. Instead, Common Good Constitutionalism is better read as both providing a retroactive coherence - a compelling narrative arc and unifying thread - to his arguments concerning constitutional design and, from the perspective of a natural lawyer at least, a far more robust normative anchor. 

Conor Casey is an Assistant Professor at the University of Liverpool School of Law & Social Justice. Conor can be reached at conor.casey@liverpool.ac.uk.