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."