Reasons to Doubt Whether “the Best Way Forward Is To Look Backward”: Commentary on Adrian Vermeule, Common Good Constitutionalism

Guest Blogger

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

Linda C. McClain

In Common Good Constitutionalism, Professor Adrian Vermeule asserts that breaking with the last few generations of constitutional interpretation by looking “backward for inspiration” to “classical law” is the “best way forward” to “restore the integrity of our law and of our legal traditions.” Vermeule bluntly contends that “our public law” oscillates fruitlessly between two interpretive “camps,” originalism and progressivism. He would replace this “exhausted opposition” with a third approach, “common good constitutionalism.” That approach would recover and adapt “the world of the classical tradition” as “the matrix within which American judges read our Constitution, our statutes, and our administrative law.” This classical legal tradition, Vermuele contends, predated “the founding area” and remained “central” to the American legal world until the mid-20^th century. Vermeule describes this tradition variously, for example: (1) the “ius commune”—“the classical European synthesis of Roman law, canon law, and local civil law;” (2) the “ordinary cosmology” of “divine law, natural law, and civil or ‘municipal’ law;” (3) a blend of natural law and natural rights; and (4) a mix of civil law, natural law, and the law of nations. But whatever the description of the classical tradition to which Vermeule would look backward, there are good reasons to resist this disruptive move.

For disruption is, indeed, what Vermeule seeks. Using Ronald Dworkin’s famous image of legal interpretation as writing a long “chain novel,” Vermeule calls for “ripping up substantial segments” of that novel—sometimes reinterpreting certain “chapters” in “drastic terms.” Vermeule does not spell out the full scope of the disruption, but the examples that he does give concerning constitutional liberty and equality are troubling, as is his rhetoric. Further, Vermeule says little about how a revived and adapted classical tradition would address problems of gender and racial inequality recognized by current Supreme Court jurisprudence as incompatible with the Fourteenth Amendment. Again, what we do learn is troubling.

In this post, I will begin with a few points on which I agree with Vermeule: the necessity for a “moral reading” of the U.S. Constitution and for a positive constitutionalism, rather than an originalist reading and a view of the Constitution as simply a charter of negative liberties. I will then raise several concerns about Vermeule’s disruptive project, illustrating with (1) the historical role of appeals to natural law and divine law in justifying sex and race inequality, including in family law, the institution of marriage, and in civil society; (2) Vermeule’s caricatured depiction of what he calls “progressive constitutionalism,” and his emphatic rejection of autonomy as a basis for Due Process liberty; and (3) the seeming absence of the role of deliberation by the people and of appreciation of reasonable moral pluralism in his conception of common good constitutionalism.

First, a few points of agreement: I agree with Vermeule that originalism is an “illusion” because it fails to recognize that constitutional interpretation requires principles of political morality. Here Vermeule credits Ronald Dworkin’s call for “moral readings of the Constitution”—even though he “emphatically” rejects Dworkin’s liberal moral commitments and liberal account of rights. Further, I also agree with Vermeule’s characterization of “living originalists” as being moral readers. Here Vermeule echoes (although without citing) James Fleming’s earlier argument, in Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, that once originalists—including proponents of “living originalism” such as Jack Balkin—recognize that the Constitution includes broad and abstract moral terms (such as “liberty” and “equality”) whose meaning embodies broad, abstract principles of political morality, and not just “concrete historical practices,” they have left originalism behind.

I also agree with Vermeule’s project of “common good constitutionalism” to the extent that it recognizes the need for a positive constitutionalism and appeals to the positive aims for establishing a government set out in the Preamble. As Sot Barber, Stephen Macedo, and Jim Fleming argue, “positive constitutionalism is neither new nor inconsistent with American traditions” and properly moves from thinking not only about “negative liberties” but also about positive ends. It views government as dedicated chiefly for public purposes. In Ordered Liberty, ] Jim Fleming and I embraced this view, arguing—against the then-recent Supreme Court—that the Constitution is “a charter of positive benefits: as instrument for pursuing good things like the ends proclaimed in the Preamble, for which We the People ordained and established the Constitution.”

Of course, there is no single account of how to interpret those ends or “the common good”—and here Vermeule and I part company. Fleming and I argued for a constitutional liberalism that included, among other things, a “formative project” of cultivating civic virtues and capacities necessary to secure ordered liberty. Both in Common Good Constitutionalism and in other writings, Vermeule is a sharp critic of liberalism and would likely characterize Fleming and my approach as a species of problematic “progressive constitutionalism” (more on that below). Vermeule instead offers a “moral reading” that looks to the classical tradition to flesh out the common good. I now turn to why this is a disruptive, even subversive project.

First, consider again what’s in the “stew” of the classical legal tradition that Vermeule would revive and adapt. Divine law, natural law, and civil law have all starred in justifying status hierarchy in marriage as well as the exclusion of women—married or unmarried—from full participation in civic, political, and economic life. Vermeule quotes Blackstone on the “cosmology” of classical law. Blackstone’s account of the disabilities to which wives were subject under the common law model of “coverture” marriage—during which “the very being or legal existence of the woman is suspended, or . . . incorporated and consolidated into that of the husband”—traveled to the colonies and shaped the law of domestic relations in the states. In 1873, in Bradwell v. Illinois, concurring Justice Bradley famously appealed to “the constitution of the family organization, which is founded in the divine ordinance” as well as to “the nature of things” to rationalize the “domestic sphere” as that “which properly belong to the domain and functions of womanhood” and “unfits” women for “many of the occupations of civil life.”

The gender revolution in the Court’s interpretation of the Equal Protection Clause in the 1970s and 1980s contributed to the dismantling of coverture marriage, a process that began through feminist advocacy and state law reform even in the 19^th century. In cases such as Planned Parenthood v. Casey and Obergefell v. Hodges, the Supreme Court has looked back to Justice Bradley’s concurrence to chart the gulf between those earlier conceptions of the family, marriage, women’s role, and the Constitution itself and present-day understandings. When Vermeule speaks of ripping up recent chapters in the chain novel, he does not tell us of the fate of the transformation of family law and the law of marriage away from status hierarchy. By what criteria will revivers of the classical tradition separate what they carry forward as distinguished from what they leave behind? Presumably, Vermeule does not seek to revive coverture marriage, with a wife’s suspension of identity, loss of property rights, duty to obey and serve her husband, or the husband’s right to physically “chastise” his wife and his immunity from rape. But how will common good constitutionalists decide how to adapt the classical tradition?

How should classical law inform constitutional law and marriage and family? If we are to look to Roman law, for example, surely we cannot take on board Roman society’s status hierarchy of free citizens versus slaves, or some of its practices, like “concubinage.” Family law and religion scholar John Witte, Jr. has detailed the “creative convergence” of classical and early Christian ideas and traditions about marriage and family with “modern liberties” concerning sex, marriage, and family life. It took Enlightenment thinkers such as Mary Wollstonecraft and Frances Hutcheson, Witte concludes, to help push the Western legal tradition to “remove the many layers of patriarchy and coverture” and, eventually, to more fully realize in law itself ideals of sex equality in marriage and in the broader society.

Vermeule does not tell us a similar tale of shedding status hierarchies, although he tells readers that constitutional law should elaborate “subsidiary principles” that include respect for “the hierarchies needed for society to function.” He elaborates that “common good constitutionalism does not suffer from a horror of legitimate hierarchy, because it sees that law can encourage those subject to the law to form desires, habits, and beliefs that better track and promote communal well-being.” Of course, we need to know: what is “legitimate” hierarchy? Vermeule mentions status hierarchies when he critiques—or, in my view—caricatures progressive constitutionalism. He claims that progressive constitutionalism has an “overarching sacramental narrative” of “the relentless expansion of individualistic autonomy.” It insists on liberation from an endless set of hierarchies and constraints. But were none of those hierarchies properly challenged as unduly limiting human freedom? Vermeule does not tell us.

To return to the example of marriage: Vermeule suggests that progressives seek liberation from, among other things, family, but never addresses whether the classical law’s model of marriage included gender-based status hierarchy that constitutional law properly played a role in dismantling with evolving understanding of the status of women under the Constitution and in society.

Vermeule clearly believes that one legitimate family hierarchy would be limiting the definition of marriage to one man and one woman. Enlisting natural law and the writings of the 6^th century Byzantine emperor Justinian, he critiques Obergefell’s extension of the fundamental right to marry to same-sex couples. Vermeule argues that common good constitutionalism would recognize that marriage is “a natural and moral and legal reality simultaneously.” Marriage is “a form . . . constituted by the natural law in general terms as the permanent union of man and woman under the general telos or indwelling aims of unity and procreation (whether or not the particular couple is contingently capable of procreating).” On that view, “for the civil authority to specify in law that marriage can only be the union or a man and a woman fits the telos of the institution and thus determines through the civil law what the natural law prescribes in any event.” Obergefell, thus, “warped the core nature” of marriage by “forcibly removing one of its built-in structural features,” namely, reproduction. Instead, Vermeule praises Justice Alito’s dissent for observing that, “for millennia, marriage was inextricably linked to the one thing that only an opposite-sex couples can do: procreate.” Vermeule also embraces the Obergefell dissenters’ unjustified charges of “bigotry” with respect to the reasoning of Justice Kennedy’s majority opinion about why excluding same-sex couples from civil marriage violated their liberty and equality.

While Vermeule invokes Justinian’s writings on marriage, this teleological argument closely parallels arguments about marriage asserted (unsuccessfully) in constitutional litigation by conservative political theorist Robert George and coauthors Sherif Girgis and Ryan Anderson. I have challenged that argument against civil marriage equality elsewhere as inconsistent with contemporary family law and constitutional law, and will not repeat those argument here. But a question arises: what else will modern interpreters of the U.S. Constitution take on board when they look to natural law, Justinian, and other classical accounts of marriage? Defenses of criminal laws barring interracial marriage frequently appealed to divine law, natural hierarchy, and natural law. Further, as I elaborated in Who’s the Bigot?, the “theology of segregation” and the “theology of integration” offered starkly contrasting appeals to divine law as well as to how “founding” principles should shape constitutional interpretation and civil rights laws. Vermeule’s book is notably silent about problems like religiously-inspired racism and white supremacy.

Finally, Vermeule does not offer a persuasive reason why personal autonomy in making significant decisions is not a more persuasive reading of the “liberty’ protected under the Due Process Clause that his non-liberal classical conception. On his conception, “rights, properly understood, are always ordered to the common good and that common good is itself the highest individual interest.” But there is no unitary understanding of the common good. It is not clear that Vermeule’s trio of “justice, peace, and abundance” maps well onto the practice of constitutional law, or, in any case, exhausts the common good.

Vermeule promises that “common good constitutionalism” will render vulnerable the Court’s jurisprudence on “abortion, sexual liberties, and related matters.” Vermeule wrote these words before Justice Alito’s majority opinion in Dobbs overruled Roe and Casey, using the narrow approach to liberty taken in Washington v. Glucksberg and putting in question the entire “fabric” of constitutional liberty. Dobbs itself portends disruption of constitutional practice, or tearing up chapters of the chain novel. Vermeule presumably supports the ruling in Dobbs, even if he might have adopted a different method of justification, given his critique of originalism. For example, Vermeule calls the Casey joint opinion “notorious.” In dramatic rhetoric, he argues that Casey’s language about the right to “define one’s own concept of existence, of meaning, of the universe and of the mystery of human life” should be “not only rejected but stamped as abominable, beyond the realm of the acceptable forever after.” (Emphasis added). Vermeule’s non-recognition and non-response to the well-developed arguments justifying Casey and other substantive due process cases is emblematic of his abandonment of public reason, reasoned judgment in constitutional interpretation, and pluralism.

In a footnote, Vermeule shares his view that the best reading of due process, equal protection, along with “other constitutional provisions” would “grant unborn children a positive or affirmative right to life that states must respect in their criminal and civil law.” Such a view is not a “mere rejection” of Roe; it affirms this “opposite right,” which “would be binding throughout the nation.”

Finally, and remarkably, given his claim to be developing a common good constitutionalism, Vermeule gives no indication that he understands that the common good is a generic concept that is common to many political and constitutional theories, not a concept that is peculiar to what he calls the classical tradition. For example, conceptions of civic republicanism, civic liberalism, and deliberative democracy are all theories of common good constitutionalism. Sot Barber has given the literature’s most thorough argument for a common good constitutionalism and positive constitutionalism. Furthermore, unlike other theories of common good constitutionalism, Vermeule does not seem to contemplate deliberation by the people as public-spirited citizens concerning what constitutes the common good. Instead, he seems to contemplate that rulers will reason about the classical tradition and ascertain what is good for the people.

I close by expressing my profound doubt that a free and equal people—characterized by reasonable moral pluralism—would submit to such rule.

Linda C. McClain is Robert Kent Professor of Law, Boston University School of Law. You can reach her by e-mail at lmcclain@bu.edu.