Book Reviews, Constitution

A Common Good Requires a Common People

May 02, 2022

This essay was originally published by Law & Liberty on April 28, 2022, as part of a Law & Liberty symposium on Adrian Vermeule’s Common Good Constitutionalism.

Federalism is central to the American tradition because confederated governance promotes an essential feature of the common good—a common people.

Just as the 2016 election ignited a fission within the conservative movement, a similar division is emerging on the legal right. This division is often represented as a crisis over methodology—with some notable scholarspoliticians, and pundits starting to question the long-standing association between originalism and legal conservatism. But as I have argued elsewhere, and as I will explain here in the context of Adrian Vermeule’s Common Good Constitutionalism, the focus on methodology as the core of the crisis is misplaced. Whereas scholars like Vermeule believe that conservatism has failed because originalism has failed, I believe this gets the relationship wrong: Originalism has failed because conservatism has failed.

Before I get into the substance of Vermeule’s book, I will frame his argument within a broader political context to underscore what is at issue in Vermeule’s project.

The Political Context

According to many judicial politics scholars, the legal conservative movement (i.e., the socio-legal movement that many scholars trace to the creation of the Federalist Society and the development of originalism in the early 1980s) has been a startling success, having initiated a “conservative counterrevolution” within the legal academy, judiciary, and Bar.

There is much to be said for this conventional narrative. After all, Republican Presidents have nominated 16 of the last 20 (soon to be 21) Supreme Court Justices, and as a result, Republicans have controlled the Supreme Court for over 50 years (since 1970). Moreover, the Court currently has six Republican-nominated Justices, all of whom were thoroughly vetted by the Federalist Society. And the Federalist Society has managed to make originalism—which only a few decades ago was an esoteric and exotic marginalia in legal thought—so mainstream that even Democratic judicial nominees proclaim to adhere to originalism as their principal guide for interpreting the Constitution.

Against the conventional narrative, I have argued that these are not signs of success but signs of failure, in that they conceal why American law steadily moves left-ward, evidenced in cases like SebeliusObergefell, and Bostock. That is where Adrian Vermeule’s Common Good Constitutionalism, the first book to address this crisis, enters the picture.

Vermeule, of course, is no stranger to this topic. In March 2020, Vermeule wrote a controversial Atlantic article arguing that legal conservatives should look beyond originalism. In that article, Vermeule announced his preferred theory of constitutional interpretation, what he dubbed “common good constitutionalism.” A few months later, Vermeule published, along with Cass Sunstein, Law and Leviathan: Redeeming the Administrative State, which invoked Lon Fuller’s “inner morality of law” in defending the administrative state against originalist and libertarian critiques.

Vermeule’s arguments against originalism have inspired significant opposition—most notably from Randy Barnett and Judge William Pryor. But Vermeule’s arguments have also gained traction, with people like Hadley Arkes and Josh Hammer publishing similar arguments over the last year.

All that is to say that Vermeule’s Common Good Constitutionalism is not only timely but also highly anticipated. While both liberals and conservatives alike will benefit from reading Common Good Constitutionalism, the book provides an uneven ride through the terrain, amounting to a roller-coaster with twists and turns that will excite some but nauseate others.

The Upside: The Defiance of Convention

Here is a book on legal conservatism that does not go through the tedious exercise of explaining how, through some novel interpretive innovation, the great progressive judicial victories could be justified through the legal methodologies associated with conservatism. In fact, the book departs from just about every recent work in conservative legal theory by refusing to defend the Warren Court’s landmark decisions. Professor Vermeule does not even discuss Brown v. Board of Educationthe paradigmatic canonical case. Vermeule thus accomplishes the astonishing feat of eliding the “Brown Test” that has come to control constitutional theory.

Perhaps even more refreshingly, Vermeule tells us exactly what he thinks about decisions like Obergefell v. Hodges. Whereas it has become increasingly common for self-proclaimed originalists to explain how Obergefell can be defended as an originalist decision under contemporary conceptions of equality, Vermeule asserts, in strikingly direct language, how the decision departs from Vermeule’s common good constitutionalism. In Vermeule’s words, the Obergefell decision is “an attempt to break a traditional and natural legal institution by sheer force of will in the service of a liberationist agenda.” In that sense, Obergefell, in its “valorization of will at the expense of natural reason,” reveals the “deep kinship” between “progressive constitutionalism” and “originalist positivism.”

Herein lies the most provocative claim in the book—that originalism and living constitutionalism work in tandem with rather than in opposition to one another. At first blush, this may strike the reader as an implausible claim. How can originalism, which was developed in the 1960s as an effort to forestall the Warren Court, operate as a complement rather than as a resistance to living constitutionalism?

Vermeule’s argument on this point rests fundamentally on two claims. One, originalism is insufficiently “thick” as a mode of interpretation to ward against “presentism”—that is, the use of contemporary values to fill in the conceptual gaps left in the constitutional text. Two, progressives and libertarians share an emancipationist agenda in that they are both “highly restrictive of governmental authority—progressives because they want to emphasize the need to break with the past, libertarians because they want to disguise as originalist and traditional their attempt to sharply restrict the ruling power of the state.” Putting these two claims together, Vermeule concludes that originalism in practice works to advance rather than to resist legal liberalism.

As an alternative to originalism, Vermeule proposes the “classical legal tradition,” which Vermeule locates not just in the American Founding but in earlier English and continental law. Under this tradition, governmental authorities are entrusted to make decisions on behalf of the public good. Vermeule accordingly advances a communitarian notion of rights, a vision that resembles Alasdaire MacIntyre’s theory of rights. Under this communitarian view, rights are part of and imbricated in the common good. In Vermeule’s words, “rights are always already grounded in and justified by what is due to each person and to the community.”

Just as Vermeule defies academic orthodoxy by refusing to explain how his theory can justify the so-called “canon,” he likewise transcends our conventional ideological boundaries by advancing a framework that is just as amenable toward government regulation of  pornography, family relations, and abortion, as it is toward government regulation of business practices, guns, and hate speech.

Vermeule similarly elides the juriscentricity that dominates legal theory. Vermeule explains how common good constitutionalism “is the proper governing approach for all public officials,” and not just within the United States but also abroad. He acknowledges that social conservatives have a tendency “to equate the international sphere with progressivism,” but he admonishes against this sort of provincialism, on the ground that “there is nothing inevitable about this state of affairs.” As Vermeule correctly observes, the European Court of Human Rights has often times been more conservative than the U.S. Supreme Court, including on same-sex marriage and public religious displays.

Vermeule’s defiance of academic orthodoxy, ideological conventions, and juriscentricity makes for an exciting ride. But the reader that carefully follows the trajectory of the argument may notice that the argument works just like a roller-coaster—full of twists and turns that ultimately bring the intoxicated reader right back to the starting point.

The tragedy of all the squabbling over originalism and common good constitutionalism is that the conversation we should be having, on how and indeed whether we can preserve the Republic, is lost in the process.

The Downside: Too Much How, Too Little Who

The most fundamental flaw in Vermeule’s analysis is a flaw that applies just as much to his critique of originalism as to his defense of common good constitutionalism: He ignores the significance of power and politics in shaping socio-legal movements. That is, Vermeule treats his analysis of originalism as a how question, as though he has identified a problem that inheres in the theory itself. But it is more fundamentally a who question, a feature of who controls legal education and, in turn, the federal courts.

Consider the following three data points on who controls thought within the legal academy. Through an extensive empirical study, James Lindgren has found “that the largest underrepresented groups [on law school faculties] . . . are white Christians, Christians, white Republicans, and Republicans.” In a legal culture preoccupied with group representation, we hear almost nothing about the groups who are actually underrepresented in the legal academy.

Likewise, Nick Rosenkranz has documented how, out of 120 Georgetown Law faculty members, only three (including Rosenkranz) are non-progressives, while the other 117 are “not just left of center, but closer to the left edge of the Democratic Party.” None of those three non-progressive professors, however, are conservative in a traditional or cultural sense. [The other two are David Hyman and Randy Barnett. Arguably, there is now a fourth non-progressive with the hiring of Shon Hopwood.]

As a final data point on this issue, consider the Originalists Against Trump manifesto, which featured many of the nation’s leading legal conservatives and originalists proclaiming that Hillary Clinton would make a better president than the Republican nominee. In fact, only six law professors in the entire country were willing to endorse Trump in 2016.

Clearly, progressives dominate the legal academy, but an equally important part of the story, and the part that is rarely discussed, is that the few non-progressive slots are occupied almost exclusively by scholars whose reasons for opposing progressivism are mostly economic and not social, religious, or cultural in nature—that is, their reasons for being non-progressives have almost nothing in common with the American people as a whole.

By focusing on how and not who, Vermeule “proceed[s] the way that legal conservatives have operated for the last two generations—as though tinkering with a method of legal interpretation is the key to victory.” That is not to diminish the importance of legal theory. But it is to say that the crisis facing legal conservatives has more to do with the larger crisis facing conservatives and Christians than it has to do with the niceties of legal interpretation.

Once the reader sees this feature in Vermeule’s analysis, the ride becomes a nauseating series of twists and turns that obscure the actual crisis that legal conservatives face. The ride returns you right back to the starting point, with the same problems ailing legal conservatism—and indeed, American law more generally—having been unaddressed.

Stepping Over Progressivism or Stepping Over the American Tradition?

In a recent law review article, I argued that the push to move beyond originalism, a push in many ways led by Adrian Vermeule, is a response to originalism moving beyond conservatism. After reading Common Good Constitutionalism, however, I realize that I may have been wrong. While many of Vermeule’s followers may be abandoning originalism for this reason, it does not appear to be the case with Vermeule. To be sure, it may appear that Vermeule is stepping over progressivism because he is stepping over the American tradition. But the book suggests a different story—that Vermeule is stepping over progressivism because he is stepping over America.

This is perhaps most glaring in his discussion of federalism and state sovereignty, both of which Vermeule puts in quotes and refers to as “so-called” features of our constitutional system. Instead of viewing federalism and state sovereignty for what they represent in the American tradition—that is, the defining issues of 1787—Vermeule sees these features as mere expressions of “subsidiarity,” a term more closely associated with the Catholic Church than the American constitutional order.

Similarly, Vermeule uses Carl Schmitt’s legal philosophy as the basis for understanding American federalism. According to Vermeule, “the right lens for understanding subsidiarity is the state of exception,” a term that Schmitt developed to explain how law operates in exceptional circumstances that cannot be fully captured by legal norms. While Schmitt’s theory has much to offer legal philosophers, and scholars like Giorgio Agamben have insightfully applied this concept to the War on Terror, I do not think it can be so readily applied to American federalism, which from the start was based on a concept of “dual sovereignty.”

The breadth of Vermeule’s “state of exception” is fully on display in his discussion of Gonzales v. Raich (2005). For many conservatives, this should have been an easy case for state sovereignty, with California exercising its constitutionally guaranteed police powers to permit the medicinal use of marijuana. But Vermeule argues that Raich was an easy case against state sovereignty, for this was, in Vermeule’s words, “a case in which a subordinate jurisdiction had attempted to arrogate to itself, in effect, the power to change national policy concerning a highly controversial drug.” California’s policy, therefore, represented “a failure of subsidiarity,” thereby necessitating the federal government’s intrusion into the state’s regulation of intra-state, non-economic activity.

Vermeule’s rejection of the American tradition leads to bizarre claims about federalism. For example, he rejects federalism on the ground that “governance at the scale of a state like California or Texas is not meaningfully different, from the individual’s perspective, than continent-wide governance.” But in making this statement, Vermeule overlooks the most important feature of federalism: You can leave the state much more easily than you can leave the continent. That is “meaningfully different, from the individual’s perspective.”

Likewise, Vermeule observes that “there is no meaningful local community at the level of New York State.” But he ignores that the towns throughout the Empire State lack community precisely because of the judge-led centralization that Vermeule endorses. Indeed, had the Supreme Court not incorporated the Bill of Rights to constrain the states, the Town of Greece would have been free to have communal prayer, without having to find a Wiccan priestess to satisfy five elite lawyers in Washington D.C.

Federalism is central to the American tradition, not because the arbitrary boundaries of the individual states have intrinsic value, but because confederated governance promotes an essential feature of the common good—a common people. Vermeule wishes for federal judges to impose the common good on an uncommon people, and in that sense, Vermeule is just like the progressive living constitutionalists and libertarian originalists he condemns.

The tragedy of all the squabbling over originalism and common good constitutionalism is that the conversation we should be having, on how and indeed whether we can preserve the Republic, is lost in the process.

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