Gratitude but not assent

James Stoner

When Richard Ni-xon campaigned against the most liberal decisions of the Warren Court, particularly those that limited la-w enforcement and expa-nded the rights of the cr-iminally accused, he pro-mised to appoint “strict constructionist” judges. Although the debate between “strict” and “liberal” interpretation of the Constitution went back to the earliest days of the republic and was probably widely known to the electorate and particularly resonant in the South, by 1968 the academic de-bate had taken a pragm-atic turn. Following the thought of Felix Frank-furter, the issue was now between “judicial activi-sm” and “judicial restra-int.”
In 1980, Ronald Reagan campaigned against judicial activism, and while one might debate whether or not he was more successful than Nixon in appointing judges who held the line against the progressive jurisprudence of the “living Constitution,” his administration brought to the forefront of debate the concept of originalism, urging judges to pay particular attention to the text of the Constitution and the meaning intended by those who wrote and ratified it. Now that a leading progressive jurist has proclaimed “we are all originalists”—referring, one supposes, to “living originalism,” which appeals to the most abstract constitutional principles and finds their meaning able to morph and expan-d—while “libertarian originalists” find the Constit-ution supple enough both to demand a strict interpretation of property rights and to endorse progressive sexuality, conservatives in search of a new ground for legal decision have turned to what they are calling the “common good.”
The various forms of conservative jurisprudence—strict construction, judicial restraint, originalism, common good—are not simply different names for the same orientation in constitutional politics, ho-wever. A decision like Che-vron v. Natural Resources Defense Council, mandating deference by courts to agency rule-making, exemplifies restraint but is not originalist, while a decision like D.C. v. Heller, finding in the Second Amendment an individual right to gun ownership, is originalist, at least in its form of argumentation, though arguably activist. Bostock v. Clayton County, the key precipitant for conservative discouragement with originalism, is textualist in methodology but hardly originalist, much less conservative, in its finding the prohibition of discrimination on the basis of sex in the 1964 Civil Rights Act to prohibit discrimination on the basis of sexual self-identification. At issue in defining a proper approach to constitutional interpretation is not simply “branding”—necessary as it is to have a simple way to communicate fidelity to the Constitution in political debate—but complex inquiry into our constitutional and legal tradition and about justice itself. Thus “common good constitutionalism” deserves serious attention, not only in relation to conservative politics but as a way of thinking about justice and the Constitution, and more generally about our society and the rule of law.
Conservative Jurisprudence
Several versions of app-eal to the common good ha-ve recently appeared in co-nstitutional debate. Hadley Arkes, a longtime critic of originalism from the perspective of natural law, has joined a manifesto calling for “A Better Originalism,” one that would enliven the dry bones of legal texts with moral truth; Josh Hammer, who joined the same manifesto, promotes what he calls “Common Good Originalism,” reading the Constitution in light of the purposes expressed in its preamble, not least its promise to “promote the general welfare.” But the most thorough, most radical, most profound, and most troubling author in the genre is Adrian Vermeule, the Ralph S. Tyler, Jr. Pr-ofessor of Constitutional L-aw at Harvard Law School, whose article, “Beyond Originalism,” appeared in the Atlantic in March 2020, anticipated the debacle of Bostock, and brought the phrase “common good constitutionalism” into general circulation. With covid lockdowns simultaneously being implemented in the name of public health, Vermeule’s article was the tocsin of the moment and received extensive response, not only in the Atlantic but across the internet—not least because Vermeule had proven himself the wittiest man on Twitter. He had meanwhile entered the Catholic Church in 2016 and soon after involved himself in theological debates concerning integralism, courting controversy with intelligence and flair. The publication this spring of his book Common Good Constitutionalism, intended more as an essay than as a treatise, suggests that coming to terms with the larger project requires attention to its most virile source.
On the one hand, Verm-eule’s theory is a welcome corrective to the errors and excesses of both originalism and progressive “living constitutionalism,” the two leading modes by which judges are said to discern the meaning of statutory law and the Constitution. Progressivism is dismissed for its promotion of a future defined only as liberation from the past, and thus for its fundamental unseriousness in approaching the qu-estion of human happiness, however great progressives’ sentimental yearning for what they sometimes c-all the common good. Ori-ginalism, the more serious competitor, fails as an interpretive methodology bec-ause it overlooks the ine-vitable role of moral judgment in discerning the meaning of texts, however sincere the search for neutral history. Indeed, depe-nding on the level of generality or specificity one attr-ibutes to rules or principles expressed in legal texts, originalism can even be made progressive, against the intention of the conservatives who developed the theory to defend the Constitution against progressive adaptation.
Better to see that, historically, American law thro-ugh the 19th century and even into the 20th preser-ved its continuity with what Vermeule calls the classical legal tradition, inherited from ancient Rome and developed by medieval Thomism, anchored in natural law and the jus gentium, the law of nations. Rights can be properly understood as articulating the demands of justice without being hypostasized into absolute values, and the common good can be restored as the end of all law-making. Ordinary people might not think that one or another mode of constitutional interpretation has much to do with the economic pressure they feel from big business or the social pressure they feel against traditional morality—much less the combined effect of “woke capitalism”—but the pervasive influence of contemporary legal morality is behind both problems. This appeal to the common good, and a jurisprudence that will allow such appeal to have real political and legal effect, is an attractive standard, not least as an intelligent and measured way to direct the populist anger and energy that have disrupted electoral politics around the world.
On the other hand, the version of “common-good constitutionalism” offered by Vermeule distorts the American legal tradition—precisely in its classical dimension—by underestimating or undervaluing the importance of liberty in our constitutionalism, which antedates the rise of liberalism and is part of the common good, not its opponent. My objection is partly theoretical, concerning the meaning of the common good; partly historical, concerning the common law and its distinctiveness; partly political, concerning matters as central to our constitutionalism as federalism, the separation of powers, and property; and partly moral, concerning conscience and the human person. Let me speak to these in turn.
Restorative Or Amendatory?
What is the common good? Vermeule helpfully and, I think, correctly defines it as “the flourishing of a well-ordered political community,” and he distinguishes this proper understanding from the utilitarian calculation of the greatest good for the greatest number, where the good is defined in terms of individual pleasure and pain, then simply aggregated. Drawing on the European Renaissance tradition of ragion di stato, he lists the common goods of a community as “peace, justice, and abundance,” extrapolated in modern times to include “health, safety, and economic security” and later “a right relation to the natural environment.”
What defines the community whose good is common? It seems to be the state, though Vermeule notes that in the classical theory of law the state is in turn defined by the law of nations or jus gentium, which itself is a common good that transcends any particular state. Still, part of the meaning of sovereignty is that each state makes its own law for its own people, “municipal law” in Blackstone’s formulation, more particular than the law of nations and actually a determination of natural law, which itself pertains to all mankind. (“Determina-tion” is a technical term borrowed from Aquinas to indicate specifications of general principles that involve choice, not simply deduction.)
Vermeule expounds all this, but he does not apply it to his discussion of the American constitutional tradition, for our tradition clearly rejected precisely terms such as ragion di stato and defined itself against them. “Peace, justice, and abundance” are unobjectionable as ends, but the American formulation was “life, liberty, and the pursuit of happiness,” at least in the Declaration of Independence, with the last specified as “property” in the Bill of Rights. If these are our determinations, then why revert to the general, unless to recommend revision of the determinations? And if the point is not restorative but amendatory, why not say so?
The common good of any one community, after all, might appear to outsiders as collective selfishness, and even within a community its definition is usually subject to partisan formulation. Any account of the common good is thus not above criticism, and e-very account should be vi-ewed with circumspection. To say, as Vermeule does, that disagreement about the substance of the common good is “irrelevant” is to dismiss without a hearing the case for conventional or positive law, for compromise and agreement.
The Common Law Tradition
My historical complaint follows from my point about determination: Vermeule is reluctant to translate the jus commune of classical legal theory as “common law,” a term once central to the American legal tradition. Common law was the unwritten customary law of England, carried over to the colonies and still the basis of law in forty-nine of the fifty states (my home state of Louisiana is the exception). It is the source of what we call “due process,” including trial by jury and the authority of precedent, as well as the law of real property and much else, not least the rule of its own limitation, namely that statutes supersede common law in case of a conflict, though it was understood by the courts that statutes might also declare in writing what was already unwritten law.
Vermeule concedes that common law is a “somewhat variant form” or “local variant” of ius commune, and he cites legal historian R.H. Helmholz for the judgment that “Eng-lish common law and continental civil law formed part of a single European tradition from which they both drew as well as contributed.” So far, so good, but the Anglo-American common-law variant is clearly not to Vermeule’s liking: He belittles the “tradition in Anglophone legal theory of cheerleading for the exceptionalism of the common-law tradition” and he attributes the abuse of economic power to “corporations wielding common-law rights of property, tort, and contract.”
His objection is not to Oliver Wendell Holmes’ redefinition of common law as judge-made law, even though this inaugurated the break with the tradition Vermeule deplores. Nor does he object to the common-law doctrine of the police power to protect the health, safety, and morals of the community, the source of precisely the opinions he praises, such as Justice John Marshall Harlan’s dissent in Lochner v. New York, which would have upheld a maximum hours law for bakers, and Justice George Sutherland’s majority opinion in City of Euclid v. Amber Realty, which upheld zoning legislation, not to mention common-law prohibitions of blasphemy, obscenity, and abortion, which Vermeule supports.
Instead, he seems to object to the absolute or vested character of property rights and liberties at common law, and the strong presumption in their favor against a claim by the public authority—a presumption Vermeule, a professor of administrative law and an advocate of the administrative state, clearly wants to reverse. He notes that police power jurisprudence was grounded in the maxim sic utere tuo ut alienum non laedas (“so use your own as not to harm another’s”), but does not seem to notice that this focuses the police power on securing people’s rights, rather than limiting rights by whatever policy the state wishes to establish. He mentions Harlan’s opinion in Mugler v. Kansas, upholding a state prohibition on the production and sale of intoxicating beverages, without noting Harlan’s rejection of the power to destroy beverages already produced and owned. He overlooks Harlan’s appeal to common-law doctrines of liberty of locomotion and of rights to use of a common carrier in his famous dissent in Plessy v Ferguson, against the majority’s invocation of the police power to ensure public peace.
In The Federalist, the common good or public good is ubiquitous, but it is always paired with mention of justice or rights. It is not that these were seen as opposites, because ensuring justice is part of the common good—a point Verm-eule stresses—but claims of common good cannot override rights unless in the direst of emergencies. Lincoln justified suspending the privilege of the writ of habeas corpus—allowing for imprisonment of suspected rebels without a trial—but insisted the po-wer be used “very sparingly,” and the circumstances were such as to make the alternative that “the Gove-rnment itself go to pieces.” Ordinarily, the common good and the preservation of rights and liberties should coincide. Consider eminent domain the model: Private property can indeed be taken for public use, a point Vermeule remembers, but just compensation must be paid, a point he seems to forget.
To say, as Blackstone does, that individual rights to life, liberty, and property are absolute is not to say that individuals are autonomous, laws to themselves. By “absolute” he meant in law, rights that would be enforced in a court of law, not subject to the discretion of a government official. The common law defined the rights individuals possessed, and each right had an appropriate use—and therefore its abuse could be identified as well, and often punished. Individuals were free to act within the law, for the purposes the law allowed: for example to marry, to educate their offspring, to govern their estates. They were free because they did not have to ask official permission in order to act, taking on themselves the responsibility for staying within the law. On this, consider printer’s law the model: one did not have to submit the text one publishes to a censor before going to press, but one could be held liable in a court of law if one libeled another or published something obscene.
The shift from common-law liberty to liberal autonomy—the abolition of the distinction between liberty and license—is the decisive break with the classical tradition that Vermeule notices, and it occurs in stages: concerning liberty of contract in the late-19th century, concerning speech and expression in the early 20th, concerning sex and public morals in the late-20th and early-21st. But with common law, as with administrative law on Vermeule’s telling, it is better to say “shift” than “break,” for elements of the tradition persist and have sometimes been restored. My point is that the common law’s concern for individual rights belongs to the classical tradition, not its liberal reinvention.
“Whate’er is Best Administered is Best”
This brings me to the issue of political institutions. Vermeule has little patience for federalism and the separation of powers, the structural principles of American constitutionalism, or for their legal embodiment in the enumeration of the powers of the federal government in Article One, section eight of the Constitution, or in the various tasks assigned to the branches in Articles One, Two, and Three. In the spirit of the administrative state, he would allow the powers of government to grow (and in principle though rarely in practice to shrink) in accord with the needs of the moment, invoking the Catholic principle of subsidiarity, which he refreshingly defines as the positive power and duty of the central state “to intervene when other competencies cannot carry out their function in an overall scheme oriented to the common good”—refreshingly, I say, because as he notes the concept is often defined negatively and misleadingly as a preference for local authority.
Though in principle compatible with constitutional federalism—through the liberal interpretation of the Commerce and the Spe-nding clauses developed by the Hughes Court in the 1930s—the pragmatic perspective Vermeule adopts encourages the expansion of central government, and in any event, subsidiarity overlooks what federalism is meant to ensure, namely the primary responsibility of vibrant political communities where political liberty can be most effectively exercised. Efficiency is not the only good that public administration is designed to achieve, and indeed after a century of experience it is hardly self-evident that efficiency is generally achieved by central power. “For forms of government, let fools contest…/ That which is best administered is best,” quotes Hamilton in The Federalist from Alexander Pope, but he acknowledges that this is a political heresy in a republic, even if a useful adage in organizing the executive branch itself.
Vermeule knows the controversy he is unleashing, deriding for example Blackstone’s “typical asi-des fulminating against Ro-man absolutism,” typical indeed among common lawyers, who noted that Justinian’s Institutes include at the outset the proposition quod principi placuit legis habet vigorem (“what pleases the prince has the force of law”). Our Revolution was fought against the claims of sovereign lawmaking authority by a parliament in which Americans were not represented; republican freedom was defined as the right of the people to play a role in making the laws by which they were to be governed and to hold accountable those who administer those laws. It was not a new idea. Wrote Aquinas:
A law, properly speaking, regards first and foremost the order to the common good. Now to order anything to the common good, belongs either to the whole people, or to someone who is the vicegerent of the whole people. And therefore the making of a law belongs either to the whole people or to a public personage who has the care of the whole people: since in all other matters the directing of anything to the end concerns him to whom the end belongs.
While Aquinas seems not to have had in mind the modern notion of elected representation, his classical legal principles surely allow Americans to choose to determine lawmaking through the constitutional forms they established, forms they took seriously because they endowed offices—from citizen to the highest offices of government—with rights and duties, powers and responsibilities, jurisdiction and discretion that were defined by laws that they themselves had made.
While the details and the boundaries among these might be disputed, they were asserted as surely as the rights of property and of personal liberty, and they similarly allowed (and required) the men who held them to exercise the virtues of prudence, justice, coura-ge, and moderation. They were asserted in the states as well as in the federal system, indeed in some ways most especially in the former in all matters except war, for the states had comprehensive responsibility for the common good of their community: enforcement of criminal justice, protection of property, maintenance of moral order, provision of education, promotion of health. These were the matters reserved for the police power, with the central government charged with ensuring peace and abundance to use Vermeule’s formula, and then, after passage of the Fourteenth Amendment, with superintendence of the security of rights. Earlier legislation and subsequent constitutional amendments expanded the franchise and with it, I suppose, the sense of individual responsibility, as voting became more an individual right than a communal responsibility, but these were from the start the two sides of self-government.
Gratitude But Not Assent
That brings me to my final topic, the importance of individual conscience. The idea of the rule of reason is ambiguous: Is it rule by the most rational person, or every man’s rule of himself, as every man has reason?
The first is the idea behind kingship, evident in Plato’s Republic; the second is an opposite utopia, where no government is necessary because men are perfectly rational—“angels,” in Publius’s famous phrase. That law is a rule of reason does not resolve the ambiguity, for it remains a question how law is made and in what spirit it is applied.
Republican or constitutional government (both are fair translations of the Greek politeia) supposes that people participate in government both in the making of law and in obeying the law and supposes that the kind of law they make for themselves is less like the command of a master than like a precept of good counsel. (To speak Greek again, the verb usually translated as “obey” is the verb “persuade” in the passive voice, so to the Greeks, to obey is to be persuaded.) Constitutional government supposes that men ought to have room to form and to follow their conscience, even taking the term in the Catholic sense, where conscience is an act of applying the moral law in the ultimate particularity of circumstances, not a claim to make law for oneself. However much life in a community requires coordination and common directives in order to achieve the common good, it is essential that individuals be left room to direct their own lives in many ways, on some questions absolutely, on others so far as circumstances allow, in order for conscience to thrive.
If “common good constitutionalism” means that our constitutional rights recover what I have called their common-law and their republican interpretation, where liberty is not confused with autonomy and the exercise of freedom can be judged as better or worse, then count me as a common good constitutionalist. (To be fair to Arkes and Hammer, that is probably what they have in mind.) If the phrase is a stalking horse for the expansion of a centralized administrative state, however, where choices about how to live are increasingly removed from the hands of ordinary people, local communities, and the several states, then count me out.
I said that Vermeule dismisses progressivism, but that isn’t quite right. With the single exception of morals—no small exception to be sure—he seems to share a number of the progressives’ goals and certainly shares their fondness for administrative rationality as the preferred means of implementation. Concerning the regulation of business, the promotion of public health, and especially the management of the environment, he seems on board with the progressives’ program, as he seems willing to entertain solutions to public problems that, by diminishing individual choice and by forcing or nudging people into government-adopted or even internationally-normed ways of life, at the least pit one element of the common good—liberty—against others and more generally impose a partisan vision of the common good.
Indeed, if it were possible to persuade progressives to drop their insistence on personal experimentation in sexual matters and their dismissal of traditional morality, one might see his book as a bid to reform the Left, every bit as much as his effort to persuade conservatives to abandon originalism might be seen as a bid to reform the Right. Perhaps, then, Adrian Vermeule’s Common Good Constitutionalism is a dare to both sides, playfully straddling the middle—so that arguing with him from Right or Left would be a genuine common good, elusive as that usually is in our polarized moment. If so, for this he would deserve our gratitude, but still not our assent.