Abstract
Adrian Vermeule’s Common Good Constitutionalism participates in the recent “postliberal” turn in American political theory whose adherents include those disaffected by partisan status quos—though Vermuele’s book draws more from the right than the left. Vermeule’s fellow travelers generally believe that liberalism’s fixation on individual autonomy has generated many societal ills (consumerism, the decay of the family and the local community, etc.), and they want to shift towards a “community-first” alternative. Emphasizing the forest rather than the individual trees, so to speak, this political vision expands on an argument that the author first articulated in an article for The Atlantic at the start of the pandemic called “Beyond Originalism” (March 31, 2020).
The book is divided into three broad sections. The first two chapters outline an account of “common good constitutionalism.” Rather than either appealing to a common public meaning of the constitution or updating that meaning to what we think it should be, Vermeule proposes that public authorities appeal to the common good as the grounds for their judgment. Naturally, this reorientation of constitutional interpretation raises the question of whose idea of the common good orients this appeal. Vermeule parries this concern by noting that everyone operates with an orientation towards what they think is good (20). In Vermeule’s words, the common good is “a type of justification for public action” (8), although this justification may not always be articulated (20). What is more, the fact that people disagree about the common good is irrelevant. According to Vermeule, disagreement proves nothing about what is true.
Vermeule himself defines the common good as "well-ordered peace, justice, and abundance in political community," a value that is "unitary, capable of being shared without being diminished, and the highest good for individuals as such" (14). Insofar as he describes the common good as what is good for the community, it is hard to shake the feeling that his conception of the common good is question-begging. He positions his understanding of the common good against what he calls “the autonomy-based notion of rights,” a vision of the common good defined as a net aggregate of individual goods. Therefore, in many ways, the book seems more interested in reacting against this liberal notion of rights than in articulating a positive alternative to it. In fact, the idea is clarified chiefly by, to borrow one of his phrases, a via negativa (28-9). In any case, the specific contours of how Vermeule imagines a 21st century America oriented by the “common good” never quite come into focus.
Vermeule’s most important argument in Common Good Constitutionalism appears in the second section of the book. There he posits that the two dominant theories of constitutional interpretation—Originalism (Chapter 3) and "living" constitutionalism (Chapter 4)—share an essentially positivist view of the law. According to Vermeule, this view of the law is not only false, but also cannot provide a coherent method of constitutional interpretation. In cases of both originalist and progressive interpretation, interpreters either produce absurd, irrational rulings because their methods introduce interpretative obstacles (as in Bostock v. Clayton County (2020)), or they rule according to what they understand to be good for all, which means that their practice cannot align with their theory. Inasmuch as progressive theory is explicitly constructed around what progressives want, they at least are on the right track, according to Vermeule.
That being said, Vermeule’s approach differs from both originalist and progressive approaches because Vermeule thinks the civil law (lex) can only be made intelligible by interpreting it in light of “general principles of legal justice (ius)," which themselves participate in the broader principles of natural law (ius naturale) and the law of nations (ius gentium) (18). Since civil law is a particular, historically situated articulation of a rule for a particular polity, it is one possible manifestation of broader social, moral principles (ius). It might be tempting then to think that the common good constitutionalist could effectively ignore the written constitution. However, maintaining the letter of the law may be a means of “obtaining” certain other goods. On Vermeule’s account, textualism is not a guide to interpretation (how should this text be understood?), but rather a justifiction for action (does enforcing the letter of the law in this case realize the common good?).
In the book’s last chapter and conclusion, Vermeule describes a few prospective domains where common good constitutionalism could be applied (the administrative state, problems of federalism, and theories of rights) and emphasizes how profound the rejection of 20th-century legal theoretical precedent should be if the coherence of American law is to be salvaged. For example, he suggests the foundation of human rights should be shifted from individual autonomy to the common good. Free speech rights would exist then not because they reflect and protect important individual capacities but for the benefit of “common political processes” (163). One promising, perhaps widely acceptable, application of the common good approach he suggests relates to claims about the "standing" of nature and the environment (173). If the common good were acknowledged as a form of justification, then “generalized harms” or “general common harm” would be perfectly reasonable grounds to sue to safeguard against development, and “injury in fact” could be worked around (174).
In sum, Common Good Constitutionalism gives authorities permission to enforce their visions of what is good for American society by liberating them from confused theories of constitutional interpretation. However, the alternative theory the book offers is partial and unsatisfactory. Readers might assume that this incomplete alternative represents a dominant Catholic school of thought regarding the proper relation of politics to law given his frequent invocations of Thomas Aquinas and Catholic Social Teaching. But as Jean Luc Marion has rightly pointed out in A Brief Apology for a Catholic Moment, there is a long tradition of Catholic thinkers that praise the separation of Church and State (24), finding its earliest Christian advocates in the Roman context Vermeule admires (37). It is precisely at the points in the book where Vermeule suggests Catholicism and legal theory do or ought to entail each other that readers sense that they do not pair comfortably.