In his recently released book Common Good Constitutionalism, Harvard Law School Professor Adrian Vermeule puts forward, as an alternative to what he describes as the now dominant originalist and progressive approaches to American law, a methodology that purportedly would recover the Western world’s classical legal tradition and adapt it “as the matrix within which American judges read our Constitution, our statutes, and our administrative law.”
According to Vermeule, the centerpiece of the classical legal tradition that he advocates is “that law should be seen as a reasoned ordering to the common good, ‘the art of goodness and fairness,’ as the Roman jurist Ulpian put it—an act of purposive and reasoned rulership that promotes the good of law’s subjects as members of a flourishing community of peoples and nations.”
The largest point of the tradition Ulpian favors, Vermeule writes, is that “public authority is both natural and legitimate—rather than intrinsically suspect, as one might infer from certain strands of the liberal tradition. Yet that authoritative rule is bounded and limited by the very condition that gives it legitimacy: that the ruling authority always act through reasoned ordinances conducing to the common good, public rather than private interest.”
Vermeule notes that his version of common good constitutionalism (hereinafter CGC) “is not legal positivism, meaning that it does not identify all law with the rules laid down by those authorized to do so by social conventions; on the contrary, it allows that the truth of legal propositions sometimes depends on the truth of moral propositions.” CGC “draws upon an immemorial tradition that includes, in addition to positive law, sources such as the general law common to all civilized legal systems (ius gentium) and principles of objective natural morality (ius naturale), including procedural legal morality.”
Positive law is hardly lacking in the classical tradition, Vermeule continues; “it represents a legitimate specification by the public authority of general principles of legal morality that need concrete embodiment, the specification of local rules that take account of local conditions, and is therefore called ius civile, literally the ‘law of the city.’” Vermeule concedes that the duty to determine or specify the positive law implies “that the judges or other officials who determine the meaning of law at the point of application are duty-bound to follow a kind of textualism, at least presumptively. But this is not the positivist form of textualism that simply equates law with positive enacted texts; rather it is textualism justified by reference to political morality.” Accordingly, he says, “positive enacted texts are always read against a backdrop of, and if at all possible, in accord with, the broader legal background of natural law.”
He notes, for example, that the “so-called sovereignty of the states is best understood as a constitutional principle of respect and comity that the highest authority [the federal government] should take into account, out of prudent respect for legal justice and small-c constitutional arrangements. But like other constitutional principles, it . . . is subject to reasonable determination by public authority ordering it to the common good. . . . it should not be understood as a hard constitutional limit on the acts of the highest authority.”
In contrast to his favored CGC, Vermeule asserts, “both progressivism and originalism . . . are positivist approaches, albeit in different ways.” The “revolutionary positivism of the progressive,” he says, quoting Rafael de Arizaga, “denies substantively the normative claims of the natural law in the name of the liberation of the individual will,” while “the genteel positivism of the originalist . . . denies methodologically the normative claims of the natural law in the name of preserving the will of semi-mythical lawgivers.”
As a concrete example of a Supreme Court decision based on progressivism, Vermeule points appropriately to Obergefell v. Hodges (2015), which announced a right to same-sex marriage and nullified state laws across the nation that had confined marriage to members of the opposite sex. The majority based its opinion on a constitutional right to “define and express [one’s] identity.” Since this “constitutional right” was nowhere to be found in the Constitution, whence did it come? Vermeule explains that the “progressive judge instrumentalizes the law in the service of a very particular liberationist narrative, in which ‘rights’ are continually ‘expanded’ to free an ever-larger set of individuals from unchosen obligations and constraints—legal, moral, and traditional, even biological. . . . Obergefell’s radical and public dismissal of a legal restriction that prevailed in Western law for millennia, stamping it as unreasoned prejudice and animus, was no accident. The dynamic commitments of legal progressivism are illuminated and measured precisely where, and because, it departs from the inherited constraints of law.”
Concerning originalism, Vermeule writes that the theory “comes in several varieties” but underlying them is “the common view that constitutional meaning was fixed at the time of the Constitution’s enactment (or that of relevant amendments), and that this fixed meaning ought to constrain constitutional practice by judges and other officials.” So far, so good. But he insists on categorizing originalism as a form of positivism, which by definition excludes any normative element in interpretation; and on this basis he declares any form of originalism that actually works in practice to be impossible.
To illustrate the impossibility of adhering to originalism in actual practice, Vermeule cites a critique of originalism put forth by Ronald Dworkin. According to Dworkin, as summarized by Vermeule, originalists face a dilemma: “originalism is committed to ‘public meaning,’ but . . . ‘public meaning’ is itself ambiguous . . . . In one version of originalism, meaning is based on expected applications; in another, meaning is based on the principles embodied in semantic content.”
But how does one interpret a phrase such as “cruel and unusual punishment”? Should it “refer to a particular set of punishments that, according to the expectations of the ratifiers and framers[,] . . . the provision would cover and thus outlaw? (This would seem to follow from the adoption of the expected applications version of meaning.) Or should it be taken at a higher level of generality to refer to an abstract principle, somehow defined (at the highest level of abstraction, a principle against morally unjustified punishments)? Dworkin argued that the choice between these two versions of meaning could not possibly be made from within originalist premises. Rather the originalist would always and necessarily . . . have to make the choice between the two conceptions of meaning on the basis of normative principles of political morality, not given by the theory itself.”
The problem is that, in defining originalism as, by definition, based on positivist premises, Vermeule, Dworkin, et al. have set up a straw man. Recall the quotation cited above that originalism “denies methodologically the normative claims of the natural law in the name of preserving the will of semi-mythical lawgivers.” Balderdash! Any American originalism worthy of the name gives enormous weight to the Constitution and related documents but not for any reason of static historical particularity.
On the contrary, these documents are accorded decisive interpretive weight because they embody in practical form the very same classical legal tradition including natural law that Vermeule professes to cherish. And the entire constitutional framework—including the limitations on federal authority flowing from state sovereignty, which Vermeule calls “pernicious”—is explicitly ordered to the common good.
What the originalists, in common with the framers of the American Constitution, keep constantly in mind, and Vermeule apparently does not, is that every person has a sense of what ought to be done in changing circumstances to promote the well-being of all—Aquinas calls this internal sense synderesis—but each is torn by conflicting desires toward self-indulgence or arbitrariness for oneself or one’s group. For goodness to prevail in a society requires that individuals restrain their lower impulses in favor of the one action in the unique circumstances of each particular moment intuited as simultaneously good for the individual and for all persons because inspired by the Divine Will.
But because all persons are perennially conflicted with higher and lower impulses, experience teaches that no one can be expected at all times to act out of genuinely moral motives. Hence morality itself requires that governments exist to formulate laws and norms of behavior in order to help restrain the human tendency toward the arbitrary. But since governments are themselves composed of fallible human beings, morality dictates further that restraints also be imposed on government officials.
As James Madison explained in Federalist No. 51: “[W]hat is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
To achieve this last objective, the Constitution divides government in America between two levels—state and federal–and then further divides the federal government into three departments having distinct powers: legislative, executive, and judiciary. As described by Madison in Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . The powers reserved to the several States will extend to all the objects which, in the ordinarycourse of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”
The powers reserved to the states are collectively known as the “police powers”: the authority to enact laws to protect the health, morals, and safety of the community. These powers are considered a general attribute of sovereignty. The latter passed from Great Britain, along with independence, to the thirteen original states in the Treaty of Paris of 1783: “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States.” By contrast, the “few and defined” powers of the federal government are those that were explicitly delegated to it by the people of the states when they ratified the Constitution.
In Federalist No. 51, Madison emphasized that the division of powers between the federal and state governments promotes the public good and that the states should jealously guard against encroachments from an overreaching federal authority: “In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
It follows, as President George Washington noted in his 1796 Farewell Address, that all public officials—and indeed all citizens—have a moral duty to respect and obey constitutional restraints: “It is important . . . that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. . . .The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern . . . . To preserve them must be as necessary as to institute them.”
Washington added that, should changes in the constitutional distribution of powers be desired, they ought to be achieved “by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.”
For reasons of morality, in sum, the framers imposed a variety of restraints on government in America. Madison said explicitly that such constitutional checks were “inventions of prudence” (Federalist No. 51) intended, by placing advance restrictions on the human passions “sown in the nature of man,” to promote “the common good” (Federalist No. 10).
Vermeule, too, claims to rely on prudence to further the common good. But instead of respecting the “inventions of prudence” built into the Constitution, he counts on public authorities as they go along to apply the common good “to a set of particular circumstances by means of the faculty of prudential judgment.” He insists that this “prudence is by no means unstructured discretion. It is given shape by an account of the ends for which discretion must be used. . . . The obligation of the public authority is to act . . . through rational ordinances oriented to the common good.”
In short, Vermeule counts on government officials, notwithstanding the fragility of fallen human nature, always to do the right thing for the simple reason that it is the right thing; contrary to Madison’s admonition cited above, he counts on public authorities to be “angels.” To the extent, therefore, that the brand of “common good constitutionalism” advanced by Vermeule as preferable to originalism is put into practice, attainment of the common good in the real life of society is likely to be diminished.