This article appears in the April 2022 issue of The American Prospect magazine. Subscribe here.
Common Good Constitutionalism
By Adrian Vermeule
Polity
Just as the Supreme Court is poised to achieve many of the stated aims of the conservative legal movement, including overturning Roe v. Wade and striking down affirmative action, leading conservative thinkers are hotly debating alternative approaches to interpreting the Constitution. Originalismthe notion that the words of the Constitution should be read according to some version of their original historical meaninghas been the standard-bearer for decades, promoted initially as a strategy to undermine national economic regulation and limit the protection of civil rights.
But a conservative competitor to originalism has recently emerged in common good constitutionalism. For its leading proponent, Adrian Vermeule, a Harvard law professor, the point of constitutional interpretation isnt to discern what the Founders thought or what some legal text meant to ordinary readers when it was enacted. Instead, the aim is to promote the common good. Vermeule claims that within the classical legal traditionwhich extended from the Roman Empire through early modern Europepolitical officials, including judges, understood that the purpose of the state is to secure the goods of peace, justice, and abundance, which he translates now into health, safety, and economic security. But in Vermeules telling, American conservatives have lost sight of that tradition and its influence on our own legal system. They have been blinded by originalism, which has become a stultifying obstacle to promoting a robust, substantively conservative approach.
In criticizing originalism, Vermeule borrows rather liberally from what he calls progressive constitutionalismthe view that the Constitution should be read with its purposes and principles in mind. He argues that progressives get some important things right about the nature of legal interpretation. Indeed, throughout his book, Vermeule relies heavily on Ronald Dworkin, the most influential American legal philosopher of the 20th century and a liberal critic of originalism. Dworkin argued that our legal system comprises much more than the Constitution, statutory texts, administrative regulations, and executive orders. All those different types of laws are created against the backdrop of often unwritten legal principles, which are drawn from our best understanding of political morality. When judges interpret the law, they are always trying to explain its meaning in a way that is justified by those principles.
Vermeule thinks that Dworkin was right about the importance of moral principles in understanding the law. He just thinks Dworkin had the wrong principles. Vermeule claims that progressive constitutionalism is motivated by a liberal political morality that misconceives the common good in favor of an ever-expanding conception of individual autonomy. His primary examples here involve gay rights. Vermeule heaps scorn on the Supreme Courts decisions in Obergefell v. Hodges, which constitutionalized a right to same-sex marriage, and Bostock v. Clayton County, which read federal law to protect against workplace discrimination on the basis of sexual orientation and gender identity. These opinions, in his view, reflect a liberal political theology that works tirelessly to dissolve the traditional moral foundations of political and legal institutions in the West.
For Vermeule, then, originalism is fatally flawed because it is cut off from political morality. Progressive constitutionalism doesnt make that particular mistake; its sin is to idolize individual autonomy at the expense of the communitys general welfare. Vermeule argues that the classical tradition solves both problems by connecting law to a political morality of the common good.
BUT WHAT, EXACTLY, is the common good? Despite declaring repeatedly that promoting the common good is a proper function of the political authority, Vermeule never adequately explains what it is. He tells us that it is not a matter of aggregating individual preferences or satisfying demands for individual autonomy. He does cite the ragion di stato (reason of the state) tradition, which describes justice, peace, and abundance as the legitimate ends of government, but that explains precious little. No one is opposed to those ends, abstractly stated, and Vermeule doesnt offer an interpretation of them. Instead, he claims to provide a framework rather than a blueprint for thinking about the common good. And yet, almost entirely without argument, he insists that these ends require some specific policy outcomes, including a constitutional right to life for unborn children, most likely a prohibition on gay marriage, bans on pornography and perhaps blasphemy, and restrictions on various forms of dangerous or false speech. We know what policies Vermeule likes and dislikes, but the moral basis for his viewsbeyond vague invocations of the common goodremains obscure.
That is because Vermeules substantive vision of the good is tied to a specific religious view that he nowhere mentions in this book. It is a striking and telling omission, about which Vermeule seems rather defensive. He says that nothing in his account turns on supernatural or ultimate ends, but its difficult to take this claim seriously. Reading Vermeules efforts to avoid stating his own conception of the good is like listening to the director of Hamlet offer justifications for failing to cast the prince.
Why leave out Hamlet? Because most readers are likely to reject Vermeules religious views as quixotic and reactionary. In recent years, Vermeule has written extensively in defense of Catholic integralism, a radical view that calls for the establishment of a religious and explicitly Catholic confessional state. He has spoken favorably of illiberal Christian regimes like those of Hungary and Poland. And he has been vague when asked about how an integralist state might treat religious minorities, saying only that nothing bad would happen to them. But that is far from reassuring. What might seem bad, or unreasonable, to religious minoritiesdenials of equal citizenship, coerced conversions, suppression of public expression of faiths deemed to be heretical or blasphemousmight be good within Catholic integralism. Incredibly, Vermeule says nothing in his book about religious liberty and its place, or lack thereof, in his account of the common good.
Trying to find common ground with common good constitutionalism is a form of political and intellectual appeasement.
None of this should be surprising. In prior work, Vermeule has been clear about his Christian strategy, which aims to capture existing political and legal institutions and to reintegrate [them] from within. And that is harder to do if people equate Vermeules theory of law with his anti-liberal religious views.
Readers should not be gullible about what common good constitutionalism represents. It is not merely a revival of an ecumenical classical legal tradition. Nor is Vermeules argument merely for a moral reading of the Constitutionan argument progressives have been making for some time. It is an argument that underwrites a dangerous shift in jurisprudence on the right, and one that serves Vermeules larger goal, which is the establishment of a state integrated withor, more accurately, subordinated toreligious ends.
THE EMERGENCE OF COMMON good constitutionalism raises two further questions: First, why is this happening now? When conservatives control the Supreme Court, why is Vermeule busily undercutting their most successful theory of interpretation? And, second, how should readersespecially liberals and progressivesrespond to a theory proposed by an author who has advised acting strategically to advance an esoteric theory of the good?
The answer to the timing questionand one Vermeule is explicit aboutis that originalism has outlived its utility. It was instrumental in casting doubt on liberal precedents, like Roe v. Wade, and in convincing the American public to support the appointment of conservative justices. But now that the Court is firmly in conservative hands, the justices dont need to talk the rhetoric of originalism or walk its supposedly restraining walk. They can remake the state in service of the common good, defined, ultimately, in terms of religious authoritarianism.
But there is another and more profound reason for Vermeules rejection of originalism. Modern originalism was born in the Reagan era, and it was used to fight against the administrative state. Social conservatives and libertarians worked together to fight the welfare state, limit the power of unions, curtail civil rights, eliminate environmental protections, and so on. With Trump, the conservative legal movement has achieved success at the Supreme Court. It now has an overwhelming 6-3 majority, which is already moving into a deregulatory posture, invalidating vaccine mandates, restricting the presidents immigration authority, and hinting at far-reaching limits on administrative agencies.
The originalist program of deregulation is, however, less appealing to a new intelligentsia on the right that calls itself postliberal and that includes Catholic integralists like Vermeule. What postliberals want is more government, not less. They want to use the administrative state to promote patriarchal family policy, protectionist labor and economic policies, morals/vice legislation (bans on porn, blasphemy, offensive speech), restrictions on LGBTQ rights, and public support for religious observance, including the reinstatement of blue lawsall explicitly modeled on the illiberal Christian democracies of Poland and Hungary. (Its no accident that Tucker Carlson has been broadcasting from Budapest. His brand of conservatism is a crude popularization of this postliberal intellectual vanguard.) And common good constitutionalismas developed by Vermeule, the postliberals legal theoristwill be the newest front in their assault on the conservative legal establishment built by Reagan-era originalists.
So how should liberals and progressives respond to all this? As postliberals war with originalists, some progressives may be attracted to Vermeules defense of a moral reading of the Constitution and to his arguments for deference to the administrative state. They might also view the conservative legal movements fragmentation over the legitimacy of big government as an opportunity. As conservatives fight, why not use postliberal arguments to protect against deregulation and the dismantling of the social welfare state?
Other liberals and progressives might decide to throw their lot in with libertarian originalists. Although libertarians are no friends of progressive economic policies, at least they dont favor a religious state and are less enamored of government impositions of morality. What liberals might get from a liberaltarian deal is a check on the ambitions of the far right, and what libertarians would get is the same. Both have a common enemy in authoritarian, populist, and theocratic government.
Which option should liberals and progressives choose? Neither is attractive. The first would be a highly speculative and unstable dalliance with religious anti-liberalism, with outcomes that are morally dubious and that risk legitimating extreme factions within the conservative legal movement. It would mean jettisoning most of the civil rights protections that progressives have spent generations defending. Trying to find common ground with common good constitutionalismin effect, the legal arm of Catholic integralismis a form of political and intellectual appeasement, pinning the hopes of the administrative state on compromising with authoritarians and praying that they dont succeed. If one had to choose, the option to side with old-fashioned, Reagan-era libertarians might be morally preferable, but it faces the very real danger of legitimating and thereby capitulating to the threat posed by the current Supreme Court.
The problem, of course, is that legal progressives are on the sidelines. The Supreme Court will be deeply conservative for the next generation. So, too, the intellectual apparatus that justifies and legitimates the work of that Court will partake of whatever theory of interpretation does its bidding. The more likely outcome is a politics that marries the worst of both originalism and common good constitutionalisman administrative state that is increasingly corporatist and authoritarian. That is the pattern we have seen play out in repressive and autocratic regimes around the world, including in the states that postliberals seem to admire most.
When it comes to progressive politics, the old saying is wrong. For liberals and progressives, the enemy of my enemy is not my friend. Instead of throwing in with postliberals or accepting an alliance with libertarians and originalists, liberals and progressives should abjure these false friendships and make their own case for a moral reading of the Constitution that points to a more open, humane, tolerant, and decent society.
VERMEULES BOOK HAS a striking cover that depicts three ancient gold coins. Each has some standard abbreviations from Roman imperial currency, including one marked with the phrase fides publica (public faith). If you look closer, the first coin shows a bespectacled man holding a glass vial; the second a concrete mixing truck; and the third has two hands cradling a plant or tree sapling. These are reassuring images, much like those adopted by Roman emperors as propaganda for their coinage. Perhaps Vermeules coins represent scientific expertise, industry, and environmental stewardshipall domains in which he counsels deference to the administrative state in its efforts to promote the common good. But if the front sides of those three coins stand for the temporal ambitions of secular empire, we cant help but wonder about what religious images are on the other side of them. Its those symbolsthe ones that integralists and postliberals dont want readers to seethat are crucial for understanding what the common good really means in their constitutionalism.
Original post:
What Common Good? - The American Prospect