Wednesday, July 13, 2022

The Other 630,000 Words

Guest Blogger

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

 Richard Primus 

            Adrian Vermeule’s Common Good Constitutionalism has a simple and powerful frame.  The right wing in constitutional theory, he says, offers us originalism, and the left offers progressive constitutionalism, and both are deeply flawed.  So instead Vermeule offers a constitutionalism oriented toward the community’s common good, rooted in the classical law (that is, the continental, Roman-law tradition).  In Vermeule’s account, this classical-law approach would not be an alien graft onto American constitutionalism; on the contrary, he claims that it is the best understanding of the constitutional order we have traditionally had. 

Both in presenting his proposal as a third way and in arguing that his third way is not an innovation but the best understanding of the American constitutional order, Vermeule’s framing evokes John Hart Ely’s canonical set-up for democratic-process constitutionalism in his landmark work Democracy and Distrust.  But there is a crucial difference.  Ely’s third way was an attempt to take substantive value questions out of constitutional law.  Vermeule’s project is decidedly to bring them in.  And its greatest potential for offering a serious new challenge to prevailing ways of thinking about American constitutional law lies precisely in its proposing to build constitutional law on the foundation of a value scheme different from any of those that have dominated the field in recent generations.  

To be persuaded to adopt Vermeule’s program, I suspect one would need to be persuaded of the substantive rightness (or goodness) of his vision of the common good.  The book is not really designed to persuade readers that the text or history of the Constitution promulgates that vision as a matter of positive law.  Vermeule does argue, in a general way, that the Constitution is compatible with that vision—for example, by reading the Preamble’s list of purposes as substantially overlapping with the social goods of peace, justice, and abundance that common-good constitutionalism seeks.  But the common-good constitutionalism that Vermeule advocates is fundamentally not a matter of positive law.  It is a matter of general jurisprudence, built into the nature of law itself, properly understood.  If we are persuaded by that larger vision, perhaps we will be persuaded to read the Constitution in its light.  But for the book to succeed in getting us to read the Constitution in that light, it must persuade us to embrace the larger vision.

So it may be a problem that the book stops short of fully describing the common good that Vermeule envisions.  We see it only in part.  Vermeule’s substantive vision does work throughout the book, but some of that work is submerged.  For example, I suspect that it powers Vermeule’s critique of originalism, but in a way that requires the reader to connect the dots, as I will explain below.  And some of the substantive vision is simply kept offstage. 

Near the end of his introductory chapter, Vermeule candidly acknowledges that Common Good Constitutionalism is, in an important respect, a sketch rather than a complete statement.  “This is the sort of book,” he writes, “that might be done in either seventy thousand words or seven hundred thousand.” (p. 25)  I think he’s right about that, and as between those choices, I see the wisdom of Vermeule’s decision to go with the shorter version.  But without a fuller account of the normative vision on offer, it is hard to decide that constitutional law should be reconceived in its image.  To be sure, I suspect that I would not want to adopt Vermeule’s envisioned regime even if it were fully described: Vermeule’s common good is illiberal, and I think liberal constitutionalism is a good thing.  Still, when I finished reading the book, I wished that Vermeule had spent more time describing the substance of the regime he envisions, because only once that is done can readers really grapple with what he is offering.

What follows has three short parts.  The first describes Vermeule’s exposition of the classical law and its vision of the common good.  The second suggests something about the relationship between Vermeule’s vision of the common good and his critique of originalism.  The third addresses the relationship between Vermeule’s vision of the common good and his critique of progressive constitutionalism—and of liberalism more generally.


*                      *                      * 

I. The Classical Law and the Common Good 

A fair amount of Vermeule’s vision of a common-good constitutional regime strikes me as attractive.  According to Vermeule, such a regime would understand law as “a reasoned ordering to the common good,” one that promotes goodness and fairness and a flourishing political community.  Officials would have the duty and the power to promote peace, justice, abundance, health, security, and a proper relationship between humans and the natural environment.  Government would have the power to protect the vulnerable against pandemics, natural disasters, climate change, and the ravages of the market, too.  Such a regime would allow people to achieve their greatest temporal happiness—a happiness that is possible only by virtue of participation in the life of the kind of flourishing political community that a common-good orientation to law enables.  The appeal of such a vision is strong, at least for me, and up to a point my experience of reading the book felt a little like that of reviewing a brochure advertising life in a well-run and exceptionally mindful gated community.  One might worry a bit about who was running things, and with what agenda, and perhaps about the extent to which the demands of being in the community would limit one’s own choices.  But there’s a lot on offer, including not just security for the vulnerable but also the promise of solidarity and fullness of life.

Like gated communities in general, however, this one necessarily excludes some ways of life.  And although a full development of this part of Vermeule’s idea is left offstage in this book, one of the ways of life that Vermeule’s common-good constitutional order excludes is liberalism.  In fairness, one should note that Vermeule might formulate the matter differently, saying instead that liberalism undermines the possibility of a community’s achieving a life of the common good.  But under either formulation, liberalism and Vermeule’s common good are incompatible.  The common-good constitutional regime can only come into being by displacing the current liberal one. 

It is tempting to think that this feature of Common Good Constitutionalism is severable from its central message.  Perhaps we could read the book as arguing that currently prevailing ideas and practices err too far in various liberal directions, and that we should adjust the balance by committing to a stronger sense of solidarity and a common good, but without the need to repudiate liberalism itself.  Vermeule would let the government proscribe pornography and obscenity that current constitutional doctrine protects, and he would prohibit abortion and limit marriage to opposite-sex partners, and he would curb the free market as necessary for protecting the vulnerable, and he would cultivate greater respect for people in traditional positions of authority.  But a regime could do many those things without being fundamentally illiberal.  (Historically, most liberal regimes have done most of those things, most of the time.)

The book in some ways invites such a reading, because, beyond the examples given above, its specification of what the common good requires and precludes is relatively thin.  As a result, one might imagine that Vermeule’s argument is compatible with several or even many different visions of the common good.  This is all the more so because Vermeule affirmatively disclaims the consideration of “ultimate ends,” limiting his arguments about the common good to what he calls the “temporal happiness” of human beings.  In that moment, Vermeule almost sounds like a Rawlsian liberal, bracketing life’s largest questions so that we can get down to the business of working out mutually acceptable arrangements for our this-worldly lives.  But to think that Vermeule’s call for common-good constitutionalism is a call for a constitutionalism that seeks some common good, rather than one oriented toward a particular (and illiberal) common good, is to miss the project that Vermeule is pursuing.

It is central to Vermeule’s argument that we are not, morally speaking, free to choose what vision of the common good should animate the constitutional regime.  The general principles of legal justice—what Vermeule in classical-law mode calls law as ius, rather than law as lex—are given and not subject to change.  To be sure, the classical law’s principles of ius are general, and they are compatible with many possible further specifications of actual legal rules—what Vermeule calls “determinations.”  Indeed, a big part of Vermeule’s claim is that officials should have broad berth to make and act upon such determinations, so long as they are rationally oriented toward the common good.  So in the realm of lex rather than ius—that is, workaday positive law, rather than general jurisprudence—Vermeule affords a lot of room for choice-making, by officials charged with pursuing the common good.  But the content of the common good is ius, not lex.  Its substance is fixed by the classical law.  The bottom line, then, is that officials are broadly free to choose how to pursue the common good for the community, but we the community (much less we the people) are not free to choose what common good our officials should pursue. 

To be clear, our collective lack of freedom to choose what common good to pursue is a moral and a conceptual limit, not a practical one.  Vermeule does not deny that Americans could instantiate a constitutional regime that that contradicts the classical law and the common good.  In several important respects, he thinks we have already done so (though not so much as to falsify his claim that at bottom, our constitutional regime is best understood as having his preferred classical-law orientation).  But if am reading the book correctly, Vermeule would see the choice to reject common-good constitutionalism as not just a moral error but a legal one, because it would contradict the content of ius and betray the true nature of law.  And to appreciate the depth of Vermeule’s willingness to privilege a substantive common good over the citizenry’s freedom to choose what form of life to pursue, one should note that Vermeule sees democracy itself as an optional feature of the common-good regime.  Democracy, for Vermeule, is one possible determination among several.  It is choiceworthy to the extent that, under given conditions, it helps to deliver the common-good regime.  But to the extent it is does otherwise, it should be done without. 

II. The Common Good and the Critique of Originalism 

It is Vermuele’s opposition to the idea that the citizenry is (morally and conceptually) free to choose the ends of its constitutional regime, I think, that explains what would otherwise be a curious feature of the book’s critique of originalism.  The substance of that critique is mostly that originalism cannot deliver on its promise to constrain constitutional decisionmaking in the present on the basis of decisions made in the past.  Vermeule’s analysis on this point mostly follows Dworkin, as Vermeule readily acknowledges.  But what the book presents as an attack on originalism is really an attack on one strand of originalism—a positivist strand of which Justice Scalia (for whom Vermeule once served as a law clerk) was the leading exponent.  So even if the attack succeeds, an originalist could reasonably argue that Vermeule is mistaken if he thinks that all of originalism is flawed simply because the particular form of originalism on which he focuses is flawed.  But to make that response and stop there is to miss the opportunity that Vermeule’s choice of how to argue affords for understanding the deepest commitments of his argument.  There is a reason, I suspect, why the form of originalism Vermuele attacks is the one that Common Good Constitutionalism is most interested in dismantling. 

Like most current forms of originalism, Justice Scalia’s positivist originalism is associated with the idea of constraint—that is, the constraint of government officials.  That is a central part of its theory of adjudication.  But its theory of constitution-making has a radically different orientation.  It operates from the premise that we, the people, are free to choose pretty much anything as our constitutional law.  The constraining function of originalism is supposed to hold us, or at least our officials, to whatever it that we have chosen.  But the underlying choice is free.  Indeed, on Scalia’s model of originalism, it is precisely in order to respect the free choice of the people at the moment of constitution-making that constitutional interpretation must be constrained by original meanings. 

At one point in the book, Vermeule hazards that all legal theories worth notice arise out of concrete struggles with opposing theories.  If I understand correctly, Vermeule thinks of the classical law he embraces as an exception to that rule.  We are never told what concrete circumstances or struggles shaped the classical law and its conception of the common good, and I suspect we are supposed to take that theory as simply existing.  Perhaps Vermeule would say that the classical law is ius as it truly is and therefore not a theory that comes into being in light of any particular circumstances.  But it is worth noticing that Vermeule’s common good constitutionalism looks like an inversion of Scalia’s originalism.  Rather than imagining the demos as radically free to choose its destiny and its officials as constrained to operate within a set of determinate rules so as to honor the people’s democratic choice, Vermeule pictures officials who are broadly free to choose how to pursue the common good of a community that is not free to choose what good it will pursue.

Understood in this light, the book’s criticism of positivist originalism as unable to deliver on its promise to constrain interpretation should be understood as a tweak to the professed aspirations of (some) positivist originalists, rather than as stating Vermeule’s main objection to their theory.  The deeper objection, it seems to me, is to Scalia-style originalism’s promise of freedom to choose at the moment of constitution-making.  And Vermeule’s concentration on that kind of originalism represents not his failure to engage with originalism more broadly but his successfully identifying the form of originalism whose premises must be repudiated before common-good constitutionalism can prevail. 

III.  The Common Good in Relation to Liberalism 

Like Vermeule’s objection to positivist originalism, his objection to progressive constitutionalism is better understood as focused on lawmaking than on interpretation or adjudication.  Indeed, progressive constitutionalism as Vermeule describes it does not really have a theory of interpretation.  Instead, it has a substantive commitment to the relentless repudiation of prior injustices.  Following Ryszard Legutko, Vermeule sees liberalism as born of a struggle against an old regime and as condemned to a never-ending campaign of repudiating the darkness of the past—one that will drive liberals to more and more extreme rejections of traditional ideas without ever being sated.  Progressive constitutionalism, in Vermeule’s view, is an expression of this facet of liberalism.  So in Vermeule’s presentation, progressive constitutionalists make constitutional law willfully, but not in a way that can really be described in terms of free choices.  They are better understood as essentially condemned to playing out a certain script. 

It seems to me that there are many progressives whose thoughts and actions do not conform to that model, just as there are many originalists who do not subscribe to the particular positivist strain of originalism that Vermeule engages.  Within constitutional theory, many progressives (and other political liberals) take either common-law or redemptivist approaches toward the past—approaches that see the past, in varying ways, as in substantial part sources of wisdom, promise, and inspiration, rather than as a darkness to be banished.  That said, the idea of liberalism as a ceaseless pursuit of repudiation after repudiation might seem to describe some of the people to Vermeule’s left, including, one suspects, some of the people with whom Vermeule—a professor at an elite university in the year 2022—interacts from day to day.  That is the kind of progressivism that most interests Vermeule in this book, and it is the kind that is most obviously incompatible with what he takes to be the teachings of the classical law. 

It would be a mistake, however, to think that it is only that version of liberalism (and here I bracket the question of whether some of the progressivism to which Vermeule objects is itself illiberal) that is at odds with Vermeule’s common-good constitutionalism.  Even if Vermeule is wrong to think that liberalism necessarily pursues repudiation after repudiation, I suspect that he is right to think that liberalism in general is incompatible with his preferred regime.  This is so for a combination of reasons.  First, liberalism affirms that individuals and communities can make choices about how to live well, choices that might reject the particular vision of the common good that Vermeule associates with the classical law.  Second, and relatedly, liberalism is committed to upholding reasonable pluralism—it maintaints that there can be many visions of the good life within the same political community—and it is not clear from Common Good Constitutionalism how much room Vermeule’s vision has for such differences.  Vermeule’s common good is unitary: there is one common good for the whole political community, with individuals finding their greatest temporal happiness in the life of that community.  Third, liberalism arose out of a series of struggles with the authority structures of early modern Europe, including of course the Church.  And although he does not make the point explicit in this book, Vermeule has elsewhere described liberalism as such as existing in perpetual enmity with the Church: the benighted injustices of the past that Vermeule takes liberalism to be driven to repudiate prominently include teachings of the Church, whether described as such or as tenets of the classical law.  That being the case, one cannot hold Vermeule’s view of the common good but bracket the rejection of liberalism, because no version of the common good that is compatible with liberalism can be the common good that Vermeule seeks to serve.  And by the same token, anyone who from a liberal standpoint seeks to engage deeply with Vermeule’s project—as opposed to with the local and often insightful arguments he makes about originalist interpretation, progressivism, the limits of positivism, the dangers of libertarianism, the utility of administrative governance, and so on—has to wrestle with that project’s antiliberalism.  To do otherwise is to miss a central point.

It’s easy to think that a liberal should react in a diametrically opposed manner—by not engaging Vermeule’s substantive antiliberalism.  Liberalism often counsels keeping matters in dispute tractable, rather than fighting about bigger things.  Vermeule says that his book says nothing about ultimate ends.  His more inflammatory ideas about the conflict between liberalism and his own worldview—such as his suggestion in a First Things essay that liberalism’s true identity is that of Satan—are formally offstage.  Liberal readers can see how those ideas operate on what is written in this book, but they could also choose not to.  Shouldn’t they?  After all, liberalism is in large part about bracketing large questions for the sake of peace.

It’s tempting.  But it might also be cowardly.  And it would also forfeit an opportunity to articulate the virtues of liberalism, both for oneself and for others, including for Vermeule, who (if one is a good liberal) should be presumed to be capable of assessing the argument and deciding whether to be persuaded.  And there is a world of difference between bracketing large questions in a discussion where liberalism itself is the agreed-upon framework, such that we are all bracketing for similar reasons, and bracketing large questions so as to avoid answering a challenge to liberalism itself.

Common Good Constitutionalism describes Vermeule’s vision of the common good only partially.  Within what is described, I find some parts of that vision attractive and others less so.  But because the book describes the substantive vision only partially, it does not enable readers to grapple with that vision as a whole.  So I wish that Vermeule in this book had said more about the substantive vision.  I could then engage with it more frontally, as respectfully as possible, and with a liberal’s awareness of the possibility that my own beliefs are mistaken, but also with the conviction that liberalism has been a great force for justice and is well worth defending.  And so long as I remain unconvinced that an illiberal vision of the common good is normatively desirable, it will be hard for a book like this one to persuade me that the nature of law makes that vision the prism through which I should read the Constitution.

Richard Primus is the Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School.  He can be reached at 

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