Common Good Constitutionalism
September 19, 2022

Law, writes Harvard law professor Adrian Vermeule (Common Good Constitutionalism), is “a reasoned ordering to the common good,” or, in the words of the Roman jurist Ulpian, “the art of goodness and fairness” (1). Public officials “have a duty, and corresponding authority, to promote the common good” (1). A “common good” isn’t simply the aggregate of private goods. It’s a “unitary” good that can be “shared without being diminished” (28), like a football team’s victory, which “cannot be reduced to the individual success of the players” and isn’t parceled out like pieces of a pie (28).

Vermeule argues that “the core theoretical insights and jurisprudential principles of the classical legal tradition can be recovered, adapted and translated into our world” (3). The classical legal tradition enables us to pursue the common good that is the purpose of law.

For a polity, the common good is the flourishing of political community. Classically, flourishing is summarized as “peace, justice, and abundance” or, in more modern terms, as “health, safety and economic security.” Or, in another idiom, public authority exists to promote justice, which means “to live honorably, to harm no one, and to give each one what is due him in justice” (7).

Vermeule doesn’t pretend these principles offer a “blueprint or set of position papers,” or that his common law constitutionalism offers specific answers to specific policy questions (35). Rather, it provides a framework within which specifics will “unfold over time in a community of interpreters who share that framework orientation even if they disagree, perhaps bitterly, over implementation and details” (36).

In this general respect, Vermeule’s project is analogous to progressive proposals that see constitutional law as an “engine of continual liberalization, or of equalization” (36). Like progressive legal theory, common good constitutional promotes a moral vision of social life, interpreting and applying the civil law of a particular nation in the light of the law of nations (ius gentium) and the natural law (ius naturale; 3).

Vermeule doesn’t think his proposal is innovative. The Founders were steeped in the classical legal tradition and expressed it in the Preamble to the U.S. Constitution. Vermeule finds common good/natural law reasoning in many U.S. judicial opinions. Positive law (enacted statutes), the law of nations (including, for instance, the law of ancient Rome), and the natural law each have contributed to legal and constitutional reasoning in America. Until the late nineteenth century, “the classical law was central to our legal world’ (58).

One objection to making common good the overriding aim of law is the risk of abuse of power. Karl Popper said political institutions should be organized “to prevent bad or incompetent rulers from doing too much damage” (49). But this, Vermeule counters, already assumes some understanding of what constitutes good government. Besides, Popper focuses so single-mindedly on one sort of constitutional risk that he ignores others. Popperian constitutionalism can take a libertarian form that ignores the possibility that private power may be abused and must be curbed the state (49-50).

Vermeule proposes common good constitutionalism as an alternative to the two regnant models of constitutional interpretation – progressivism and originalism. His critique of progressivist legal theory is devastating. Progressive constitutionalism “is rooted in a particular mythology of endless liberation through the continual overcoming of the reactionary past” (117). This is a “wildly implausible” theory of history (23) and a fundamentally corrosive theory of law, insofar as it instrumentalizes law “to serve the will of individuals who seek liberation from any and all unchosen constraints” (117).

This agenda undermines the whole purpose of law, which is to promote the common good. Under a progressive legal regime, “the inner integrity of the law is twisted for extrinsic, unrelated purposes” (121). If law promotes the common good, for instance, it should uphold natural institutions like marriage and family. Obergefell (gay marriage decision) does the opposite: By treating procreation as dispensable to marriage, the decision breaks “a traditional and natural legal institution by sheer force of will in the service of a liberationist agenda” (133). Vermeule has even stronger words for Kennedy’s famous “sweet mystery of life” declaration in Casey: it “should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after” (42).

Vermeule reprises his First Things essay on the liturgy of progressivism: Progressivism depends on the “repetitive impulse . . . to celebrate a sacramental moment of overcoming of the unreason and darkness of the traditional past. . . . what matters is that the legal progressive celebrates the heroism of judges or other officials who overcome the forces of reaction, liberating legal subjects from putatively irrational constraints founded in arbitrary power” (119).

It’s not enough for LGBTQ+ people to be treated equally; it’s necessary for everyone to celebrate their equality. Progressives cannot leave the Little Sisters of the Poor alone; the nuns must be forced “to acknowledge publicly the progressive state’s just authority even in matters of religion, the authority to require either provision [of contraceptives] or the exercise of an opt-out” (120). Progressivism’s ritualized authoritarianism is inherent to the progressive outlook.

More surprising than Vermeule’s attack on progressive legal theory is his evisceration of conservative originalism. He adapts Ronald Dworkin’s critique of originalism, without endorsing Dworkin’s own liberal rights-based jurisprudence. Originalism has become the primary conservative theory of constitutional interpretation, and is even advocated now by non-conservatives. Despite differences among originalists, they agree, Vermeule says, that “constitutional meaning was fixed at the time of the Constitution’s enactment . . . and that this fixed meaning ought to constraint constitutional practice by judges and other officials” (91).

What’s wrong with that? Many things, Vermeule says. First, originalism is an “illusion” because legal interpretation always introduces normative principles and arguments that cannot be deduced from particular texts. “What actually happens,” he says, “is that [originalist] judges recur to implicit or explicit normative principles of political morality” (94).

Second, originalism cannot determine the “level of generality at which original public meaning is specified.” Is “meaning” equivalent to “the specific applications the relevant actors expected would result from the enacted language”? Is the original meaning the semantic meaning of the terms used in the statute or constitution, regardless of the authors’ expectations? Originalism has no resources to answer this question; in practice, originalists “tack between applications and semantic content” as it suits, which, once again, means that “original public meaning” is no longer guiding the decision (94).

One illustration: The 2020 Bostock decision, written by arch-originalist Neil Gorsuch, applied Title VII provisions against sexual discrimination to discrimination on the basis of sexual orientation. Applying the “semantic” understanding of meaning, Gorsuch argued that “sex” had a broader application than the statue specifies.

Thus, Vermeule observes, we have an “originalist” decision “that, very possibly, not one of the legislators who enacted the statute, or the voters who elected them, would have thought included within the language they enacted.” The result is a kind of “law without mind,” law that has a meaning that was never intended by the authors of the law (106). Originalism is an interpretive “technology,” but that’s just the problem: It attempts to bypass the moral reasoning at the heart of law-making and legal interpretation.

Vermeule’s book doesn’t attempt to cover all objections or implications. It’s more a manifesto, offering an alternative way of interpreting our constitutional tradition and of making and interpreting law. Vermeule’s position is genuinely an alternative to both progressive and originalist theories. He agrees with progressive theorists that the constitution must develop, but warns that we need standards to distinguish valid from invalid developments. For Vermeule, these standards are available in the ius gentium and ius naturale.

He agrees with originalists that there’s a proper “textualism” (8), but it’s not a mechanical interpretation of positive law, but plunders the classical legal tradition for interpretive resources. He is a conservative theorist who says the “efficient” constitution of the U.S. is the “unwritten” one that draws on “broad structural postulates and background principles, derived from the classical tradition and the natural law, to determine the just authority of the state” (41). That means, for instance, that a powerful Presidency is part of our constitutional order, which, for Vermeule, has the corollary that the bureaucratic administrative state is “the strong hand of legitimate rule” (42, 136-54; see here for my summary of Philip Hamburger’s assault on administrative law).

I leave the legal arguments to the lawyers. My complaint about Vermeule is theological. Law exists to promote human flourishing, and the flourishing of political community is also the flourishing of individuals (29). He adds the qualification: “the account I offer here is limited to the ends of natural and temporal happiness” (29). His concern is the “temporal felicity” of political communities, “the order of nature rather than the order of grace” (29).

Vermeule is some kind of Thomist, but he’s not a Thomas kind of Thomist, because Aquinas himself would never countenance the notion we can talk about flourishing political communities without talking about spiritual goods (see Theopolitan #264). “Nothing in my claims,” Vermeule says, depends on an account of ultimate ends (29). Which is what we call a problem. He’s offering a vision of constitutional law as if Jesus did not reign, or as if Jesus’ reign were irrelevant to constitutional law, which amounts to the same thing.

This theological error undermines Vermeule’s entire project. He’s aware that classical legal theory includes laws that regulate religious activity. American states criminalized blasphemy into the early decades of the twentieth century (172-3). In Roman law, to which Vermeule occasionally appeals, religious law was a major subcategory of public law. Classical law wasn’t concerned merely with “temporal” goods, and by ignoring God (or the gods), Vermeule abandons the classical legal theory he claims to promote. By limiting his constitutional theory to temporal goods, Vermeule offers another variation of secular legal theory.

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