In The Atlantic Harvard Law professor Adrian Vermeule has published a description of what he hopes will become the next big trend in judicial philosophy – common-good constitutionalism:
But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social. …
Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.
There’s a lot of feel-good words here, not least of which is the title which he’s labeled this philosophy with – common-good constitutionalism. But as I read I became more and more negative, because he’s using words not of precision, but words over which a good fight can take place. For example:
Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.
Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.
So what does [Common-good constitutionalism] is not tethered to particular written instruments of civil law … mean? It sounds a lot like … the law is what I say it is right now.
Or … but instead to ensure that the ruler has the power needed to rule well. Yeah? Is this pre-defined or are we, or far more likely this ruler of which he speaks, going to be defining it as each crisis – each pseudo-crisis – is encountered? Does that sound silly? Does “border wall” ring any bells for you, and the accompanying fake crisis?
But perhaps what bothers me the most is a perceived, and perhaps real, hubris emanating from this article. One of the implicit principles of the Constitution is that of paucity of certain knowledge. In a sense, many of the clauses in the Constitution is an acknowledgement that we just don’t know, so we’re going to leave that point open for further debate and individual actions. Which religion is true? We don’t know. What’s the perfect tax rate? We don’t know.
Who should be ruler? If we knew, we wouldn’t NEED a democracy, now would we?
Vermeule doesn’t reference the concept, and I’m not sure it’s ever occurred to him that the Constitution is more about what we don’t know than what we do. So as much as this is a high-falutin’ article, referencing people and concepts with which my knowledge is either non-existent or miniscule, and I should be shrugging and moving along, I cannot help but say that I deeply mistrust these assertions. They speak of someone tired of the ceaseless arguments, who has forgotten the importance of compromise in a world of uncertain knowledge, who wants to get on with the ruling part, without knowing just how to proceed.
It’s my observation that the continuing flaming shitshow that is the Trump Administration is a reflection of just the hubris that Vermeule appears to be exhibiting in this article, and it seems quite likely to me that it may result in the same incompetent results.
And if he cries April Fool’s!, I’ll just note this was published on March 31st in a serious magazine.
