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The Founders’ Constitution and its discontents

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Adrian Vermeule’s Common Good Constitutionalism represents his version of the left’s “living Constitution.” Few people will embrace his self-serving theory, which is tailor-made to accommodate both his beloved administrative state and integralist moral philosophy—a peculiar combination.

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The term “constitutional law” is in large part a misnomer. This is rarely discussed within the guild of the legal profession and heretical in the increasingly woke precincts of the legal academy, where the field of “constitutional theory” is a cottage industry. The late Lino Graglia, a law professor at the University of Texas for over 50 years, was fond of pointing out that “constitutional law” has very little to do with the Constitution. Beginning in the 1960s, most consequential Supreme Court decisions parsed a couple of clauses of the 14th Amendment dealing with “due process” and “equal protection,” if they cited the text of the Constitution at all.

The 14th Amendment—a Reconstruction-era provision added to the Constitution in 1868 to confer basic rights on the newly freed slaves—has been “interpreted” to protect abortion rights, same-sex marriage, welfare rights, LGBT rights, pornography, flag burning, procedural rights for criminal defendants, and much more. This is the unfortunate state of “constitutional law” today. The status quo has drawn criticism from both left and right. Into this fray, Adrian Vermeule wades in his new book, Common Good Constitutionalism (2022), an ersatz hybrid of progressive and pseudo-conservative sentiment.

Vermeule teaches law at Harvard, one of the nation’s most elite universities. He specializes in administrative law—a Progressive Era innovation that some critics contend violates the Constitution’s separation of powers—and constitutional theory. Constitutional “theory” often has even less to do with the Constitution than constitutional “law.” Oddly, for a subject taught in law schools, the field is dominated by moral philosophers, exemplified by John Rawls and Ronald Dworkin. The attraction of constitutional theory, from the legal scholar’s standpoint, is that the canvas is blank, the inquiry is unhindered by text or history, and the only limits are the scholar’s ambition and ingenuity. Vermeule, who holds an endowed chair at Harvard Law School, exudes plenty of both.

Each theorist has his own personal preferences, and Vermeule is no exception. He is an ardent devotee of the administrative state (having co-written a bold defense of it in 2020’s Law & Leviathan) and a recent convert to Catholicism, which coincides with his turn toward what some observers call “integralism,” a movement that “seeks to subordinate temporal power to spiritual power—or, more specifically, the modern state to the Catholic Church.” Vermeule’s embrace of integralism aligns him with so-called post-liberals led by Patrick Deneen on the Catholic right, as well as some quirky proponents of “natural law” jurisprudence. (Deneen enthusiastically blurbed Vermeule’s book.)

In the 1970s, the nascent field of constitutional theory was dominated by liberal law professors seeking to provide cover for the activist decisions of the Supreme Court during the 1960s under the leadership of Chief Justice Earl Warren (which, unfortunately, continued under his successor, Warren Burger). The left’s defense of extra-constitutional rights was termed advocacy of “a living Constitution,” suggesting that the document is (or ought to be) malleable enough to be putty in the hands of liberal judges. Decades later, libertarian and even conservative scholars got into the act, hoping to inspire judicial activism in a different direction. More on that later.

Vermeule’s provocative book has attracted a good deal of attention. Common Good Constitutionalism is heralded in some quarters (and denounced in others) as an avant garde critique of “originalism”—the notion, popularized by Justice Antonin Scalia in the 1980s, that judges should interpret the Constitution in accordance with its original public meaning—that is, what the document was understood to mean at the time it was enacted. Instead, Vermeule offers an alternative model of government: Elected officials and bureaucrats should act based on their own sense of what would best promote the common good rather than being constrained by the text of the Constitution. Vermeule defines “common good” as “the flourishing of a well-ordered political community,” with the goal of achieving “peace, justice, and abundance” (which includes “economic security”). This sounds like New Age utopianism, the realization of which requires centralized power and invites the exercise of broad subjective discretion—precisely the opposite of what the Framers intended.

What was the Framers’ design? The Constitution enumerates the limited powers conferred on the national (or federal) government, which are carefully divided among three branches: the legislative (Congress), executive (president), and judicial. The Framers contemplated that dividing the national government into three branches would provide essential checks and balances to prevent the accumulation and abuse of power. Each branch had a defined and complementary role, with Congress making law, the executive enforcing law, and the judiciary interpreting law.

Under our dual system—federalism—states retain all powers not expressly delegated to the national government, as stated in the 10th Amendment. At both the state and federal levels, most important policy decisions are made by the politically accountable legislative branch. “We the people” can, in this fashion, exercise the necessary “consent of the governed” to enjoy representative self-government while maintaining our precious liberty.

The Founders’ Constitution has a fixed meaning that can be changed only by formal amendment. Since the New Deal, and especially following the Warren Court judicial revolution of the 1960s, however, radical changes in constitutional law have been wrought by judicial fiat. The locus of power has shifted decisively to the national government, vast authority has been concentrated in an alphabet soup of (unelected) federal administrative agencies that exercise quasi-legislative and quasi-judicial power, and federal courts have assumed a policymaking role far exceeding Alexander Hamilton’s assurance in Federalist 78 that the judiciary “will always be the least dangerous to the political rights of the Constitution.”

This is our modern dilemma. In the 1970s, the Supreme Court’s marked and continuing departure from its properly limited role prompted conservative scholars such as Robert Bork to advocate judicial restraint and a jurisprudence that focused on the intent of the Framers rather than the predilections of a transitory five-person majority of the unelected, life-tenured Supreme Court. This movement spawned the now-influential Federalist Society (founded in 1982) and evolved into the philosophy of “originalism” that has become at least theoretically dominant in center-right legal circles today. To the frustration of many conservatives, however, despite the “triumph” of originalism and a majority of Republican-appointed justices currently serving on the Supreme Court, we have not seen a major shift in the Court’s decisions.

If anything, things have gotten worse under Chief Justice John Roberts, a Bush 43 appointee. Many conservatives abhor Obergefell v. Hodges (2015), which recognized a right to same-sex marriage. Bostock v. Clayton County, a 2020 decision written by Justice Neil Gorsuch, is another activist abomination. There, the Court construed Title VII’s prohibition of discrimination based on sex to include, in addition to biological sex, sexual orientation, gender identity, and transgender status. Impatient conservatives want to see changes in the Court’s jurisprudence and some blame originalism for being ineffectual. The disaffection is not limited to conservatives. Some libertarians want to resurrect economic liberties that FDR’s Court interred in the 1930s and argue for heightened judicial scrutiny of legislative enactments—what proponents call “judicial engagement.” Proponents of natural law jurisprudence, such as Amherst College professor Hadley Arkes and West Coast Straussians, urge judges to divine unwritten principles of morality derived from the Declaration of Independence and superimpose them on the polity.

Vermeule’s jargon-laden critique, incorrectly perceived as coming from “the right,” has attracted attention for its man-bites-dog novelty. Vermeule aims to discredit originalism altogether and replace it with his bespoke legal order. The moral framework of Vermeule’s integralism (summarized in a 2020 essay he wrote for The Atlantic, entitled “Beyond Originalism”) is hostile to the libertarian bent of the Supreme Court’s current jurisprudence on free speech, abortion, sexual liberties, and related matters.

Despite charges that Vermeule advocates “a kind of reactionary substantive due process,” he is not conservative in any meaningful sense. He represents an odd hybrid of conventional progressivism (support of federal power, administrative agencies, economic regulation, labor unions, and environmental protection) and traditional morality typically associated with social conservatives (opposition to abortion, LGBTQ rights, same-sex marriage, pornography, etc.). Coincidentally, his “constitutional theory” mirrors those views. As Robert Bork wrote in 1982, “the judge who looks outside the Constitution always looks inside himself and nowhere else.” The same is true for constitutional theorists.

Claiming to revive what he calls the “classical legal tradition,” Vermeule exhibits considerable erudition regarding Dworkinian moral philosophy, Roman law, Thomistic political thought, natural law, and the abstruse literature of constitutional “theory.” Judged in terms of ambition and ingenuity, Vermeule earns high marks. Alas, he fails to persuade that these concepts have any relevance to the Constitution as written. Brimming with Latin phrases, and punctuated with jarring citations to figures wholly unrelated to the American Founding (i.e., Giovanni Botero, Carl Schmitt, Johannes Messner, St. John Henry Newman), his self-referential book not only disregards the Founders’ Constitution but stands our constitutional democracy on its head. In a mere 184 pages of text, without a single reference to James Madison, and nary a mention of the Federalist Papers, Vermeule purports to erase and rewrite the Founding. This is pure hubris.

Under Vermeule’s “small-c constitution,” liberty is a “teleological” concept subordinate to the “common good”; “democracy” (placed in scare quotes), too, yields to the common good; the national government exercises plenary power; “federalism” and the “sovereignty of the states” are dismissed as “so-called” concepts useless in the technocratic Leviathan; centralized government power (“the strength of a giant”), instead of something to be feared, is viewed as essential “to do what is necessary for the common good”; “originalism as a theory is an illusion”; and the unconstrained administrative state (complete with Chevron deference) serves as “a modern translation of the classical triptych of goods (peace, justice, and abundance).” Vermeule’s authoritarian conception of the “common good” includes vaccine mandates.

If you liked the federal government’s COVID response, you’ll love Vermeule’s regime of common good constitutionalism.

Dr. Anthony Fauci and his autocratic colleagues in the Deep State will find the progressive aspects of Vermeule’s theory quite congenial—Woodrow Wilson on steroids—but will be horrified by the integralist-inspired rejection of abortion rights, same-sex marriage, constitutional protections for gay rights, and First Amendment coverage for obscenity and pornography. Vermeule even suggests that, in the name of the common good, blasphemy could be criminalized. All this is anathema to the left. Conversely, Vermeule will win few converts on the right by demonizing Robert Bork and rhapsodizing about the wonders of the administrative state.

Vermeule’s results-oriented theory is ultimately a vanity project—an absurd mélange of disparate concepts that will appeal to a very small audience: disgruntled religious moralists willing to jettison originalism as a trade-off for the Court overruling Obergefell and Roe v. Wade. If only. Abstract theories do not decide cases or dictate particular results. Judges rule in accordance with the prevailing zeitgeist, which in the legal academy and the larger legal culture is lopsidedly leftist. If Vermeule’s theory succeeds in undermining the force of originalism, the left will benefit, not the integralist right.

Judges are tethered by text, precedent, and well-established norms of interpretation. Academic scholarship can and does influence what passes as the “mainstream” in constitutional jurisprudence—the “Overton Window,” as it is sometimes called in other contexts. “Originalism,” although far from perfect (and never self-executing), limits the exercise of judicial discretion to some extent. Originalist judges have to offer a plausible textual basis for their decisions. Vermeule’s open-ended theory, in contrast, would relieve judges of any such constraint, empowering leftist jurists and unelected bureaucrats to dress their personal predilections up as the “common good”—a wholly subjective inquiry.

Stripped of its “historicist supineness, tendentious scholarship, and political utopianism,” Vermeule’s “radiant vision” of unconstrained government power is a misguided prescription for tyranny. The Founders would be appalled.

Mark Pulliam

Mark Pulliam writes from East Tennessee. A Big Law veteran, he retired as a partner in a large law firm after practicing for 30 years. A contributing editor to Law & Liberty since 2015, Mark also blogs at Misrule of Law. He considers himself a fully recovered lawyer.