‘Common-Good Constitutionalism’ Is No Alternative to Originalism

Supreme Court nominee Brett Kavanaugh holds his U.S. Constitution in Washington, D.C., September 6, 2018. (Alex Wroblewski/Reuters)
Harvard’s Adrian Vermeule would trade the security of written law for a might-makes-right contest that conservatives should neither expect nor want to win.

NRPLUS MEMBER ARTICLE H arvard Law professor Adrian Vermeule thinks conservatives should abandon originalism as a method of constitutional interpretation. His argument is such bad constitutional law that it is really neither constitutional nor law. It is terrible political and legal strategy. It is at odds with American constitutional history. It reflects the worst impulses of the Right in the Trump era to ape the most illiberal and corrosive habits of the Left. It would not produce the good society Vermeule envisions. And in a final irony, given Vermeule’s desire to effect something like a traditional-Catholic theocracy, it would promote a distinctly un-Catholic approach to tradition, legitimacy, and rules.

Who Decides?
The essential argument of originalism is that the Constitution is a legitimate source of law because it was enacted by the people. It follows from this that changes to the law should be made by the people through the amendment process, rather than by unelected judges’ deciding what the law ought to be. Thus, whatever the Constitution was understood to mean when it was ratified by the people is what it continues to mean. This is the same way in which courts of law read statutes or contracts. Indeed, the “textualist” school of statutory interpretation, which considers the meaning of the statute’s words when they were written, is a longstanding and arguably even more successful project of many of the same conservative judges who promote originalism.

Vermeule begins by declaring that “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.” He does not argue that originalism has failed; to the contrary, he details its astonishing success as both an intellectual movement and a practical political project in the face of daunting hostility from the progressive legal establishment. Instead, he argues that originalists are setting their sights too low by simply enforcing the existing rules neutrally rather than trying to guide outcomes toward a “common good”:

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. . . . 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. . . . 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.

One can imagine quite a lot. Convincing a democratic society of one’s imaginings is another matter. Vermeule makes three separate arguments. First, he argues candidly that courts should pursue their own vision of the common good rather than focus on applying the Constitution as written. Second, he advances a particular vision of the common good, which values order, authority, and virtue above individual liberty. Third, he makes a political argument that it is now possible to launch this project and expect it to produce the common good he envisions. The first and third arguments are so wrong that the second is irrelevant.

Vermeule is frank about departing from the rule of written law:

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. [Emphasis added.]

Here, the problem with Vermeule’s argument smacks us in the face. “Common-good constitutionalism” is not law at all, and certainly not constitutional law, because it does not depend on what the law actually says. It is not constrained by any limits; it can pick and choose means and ends as it likes. Vermeule is a serious enough thinker to admit what he is up to, but he understates quite how far his vision departs from constitutional sources of authority:

The sweeping generalities and famous ambiguities of our Constitution, an old and in places obscure document, afford ample space for substantive moral readings. . . . Thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake; they can be grounded in the general structure of the constitutional order and in the nature and purposes of government.

It is true that structural arguments are part of constitutional law, but those arguments depend upon the structures that were actually written down in the Constitution. Vermeule repeatedly amputates his arguments from the text. For example, he cites “the Constitution’s preamble, with its references to general welfare and domestic tranquility, to the perfection of the union, and to justice.” But he leaves out the most important part of the preamble, the only part that says anything about power: “We the People of the United States . . . do ordain and establish this Constitution for the United States of America.” To borrow Lenin’s famous formulation, the importance of the preamble is who is doing what to whom — the People are making a constitution to govern the United States — not why. Americans in the 1770s and 1780s lived in a world with lots of governments that pledged themselves to the general welfare. No other nation at the time had a written constitution established by the people and binding on the government. Writing it down was the point.

Vermeule cites the congressional mandate to provide for the general welfare and common defense. He ignores not only the limited nature of this mandate — it is a description of the purposes of the taxing power, not the power to pass laws — but also the all-important fact that it is given only to Congress. “General welfare” is not a roving commission for judges to assume moral leadership of society; it authorizes legislative appropriations.

The most important question of constitutional law is always “Who decides?” Vermeule skates right past this question. As Justice Scalia famously wrote in his dissent in Planned Parenthood v. Casey, handing down value judgments from the bench creates a problem: “The American people love democracy and the American people are not fools. . . . The people know that their value judgments are quite as good as those taught in any law school – maybe better.” Even if one is skeptical of the wisdom of the people, what gives nine lawyers the right to decide they know better?

The Unconstrained
The point of sticking to the Constitution’s text and its understood meaning is precisely that it constrains judges. It allows them to decide only those things the people have authorized them to decide, and it limits what sources they can choose to support their reading of the text. A non-originalist Supreme Court is, after all, simply a democracy with only nine voters.

Vermeule knows full well that this question of constraint is central to the argument for originalism, because he co-wrote a 2009 book review that eviscerated a similar effort by progressive legal scholars to justify their own theory of the common good as a legitimate basis for constitutional law. Consider that book review’s critique of foreign or international law as a source of authority:

Most countries are not in fact more liberal than the United States, and many are far less so. So which foreign law to use? Reliance on foreign and international law to achieve progressive ends would have to resort precisely to the sort of selective use of sources that critics of originalism impugn conservative judges for employing in domestic law. Koh agrees that American courts should not incorporate the law of Zimbabwe, but should engage in the “selective incorporation of the best practices of international and foreign law.” Best, according to what standard? Koh’s own academic work is an industrious picking and choosing of international and foreign law that protects the rights of women and minorities, as opposed to the countless illiberal foreign norms that curtail free speech, protect against “religious defamation,” and promote an inquisitorial model of criminal procedure. Parochial to the core, Koh seems to think that whatever is not progressive according to American lights is not “best.”

This same problem besets Vermeule’s effort to identify a body of philosophy that could substitute for written law. He offers a few candidates, but never settles on any constraining principle for choosing from among them. Most tellingly, he argues that government should “encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.” The link is to a section of Thomas Aquinas’ Summa Theologica arguing for natural law.

The natural-law tradition has much to offer in informing a vision of the common good. But standing alone, it has no more a fixed and authoritative set of rules than one could find in originalism, unless it is combined — as it was for Aquinas — with the teachings of the Catholic Church. Therein lies the irony of Vermeule’s position. Catholics, to a degree unusual among Christians, are bound and constrained by the dead hand of tradition. The moral and theological teachings of the Church are not up for reinterpretation by each successive generation. They are not free to be interpreted by every conscience. Instead, they have been developed over thousands of years of councils and decrees. They are set forth in a rulebook, the Catechism, that emphasizes its fixed and unchanging guidance over time. Constraint of this nature is what allows the Church to be governed by men as disparate in their worldviews and temperaments as Popes John Paul II, Benedict, and Francis, without significantly changing its teachings. In invoking the Catholic moral tradition, Vermeule is not actually proposing to eliminate written rule and constraint, but to outsource it.

In fact, Vermeule would eliminate the constraint of tradition within the American constitutional system in a way that he, as a traditional Catholic, would never tolerate within the Catholic Church. The legitimacy of Church teachings does not derive from the moral intuition of Pope Francis and the current curia; it derives from their integration in a 2,000-year-old institution that professes fidelity to the original meaning of the words of Jesus, as interpreted and understood over the great sweep of Church history. While the analogy is not perfect — divine revelation is a different sort of source of sovereignty than popular amendment — Catholics follow the Pope because his authority is grounded in those ancient origins. If we would not throw out the rulebook of the ultimate sovereign in God’s law, neither should we do so in man’s law.

Playing in Left Field
If the problems of Vermeule’s approach to constitutional law sound familiar, they should. Vermeule is undoubtedly right that “all legislation is necessarily founded on some substantive conception of morality,” but his vision of a state in which an unconstrained governing elite mandates its vision of the common good through the mechanism of law is the mainstream interpretive method of nearly all of the legal academy and Democrat-appointed judges. Although Vermeule differs from judicial progressives in the content of his values, he shares their devotion to a moralizing judiciary unconstrained by the people it rules. His cynical rejection of neutral principles of law makes him a neat fit with his left-wing Harvard Law faculty colleagues. And conservatives should oppose him for the same reasons we oppose them.

Indeed, it is not hard to find analogues to Vermeule on the other side of the partisan and ideological divide; if anything, it is hard to find people who are not analogous. That is precisely the problem. The entire notion of the “living constitution” was invented by Woodrow Wilson as justification for a “Darwinian” evolution of the fittest in society to govern everyone else. Like Vermeule, Wilson placed great faith in the elites of the administrative state to instruct their inferiors. Justice Stephen Breyer, hardly a marginal figure, wrote an entire book on how his vision of the common good should inform the Supreme Court’s reading of the Constitution.

Most infamously, Vermeule’s Harvard Law colleague Mark Tushnet wrote a triumphalist blog post in 2016 arguing that progressive control of the courts after an anticipated Hillary Clinton victory should lead to an abandonment of “defensive crouch Liberal Constitutionalism” in favor of the view that “The culture wars are over; they lost, we won. . . . Taking a hard line . . . is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all.” Tushnet went on to compare this to the treatment of defeated Nazis after the Second World War. His post, along with the Obama solicitor general who told Justice Alito that religious institutions could lose their tax exemptions if they didn’t recognize same-sex marriages, helped drive social conservatives fearful of a Clinton administration to Donald Trump.

This is where the political fallacy of Vermeule’s approach becomes so obvious. In a conscious echo of Tushnet — he even links to the blog post quoted above — he writes :

Circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view. Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism.

This is a shockingly bad misreading of the political and judicial terrain, just as Tushnet’s was in 2016. Today, originalists are more empowered to shape constitutional law than ever before, but a permanent ascendancy is hardly at hand. Trump did not win a sweeping, enduring victory; he was elected more than anything else because of the natural post-incumbent trend. He lost the national popular vote. His presence went a long way toward costing Republicans the House in 2018, and Democrats could retake the Senate in 2020 in an election cycle upended by the uncertain course of the current crisis. That may be a pessimistic scenario, but even a conservative optimist must admit that American politics is cyclical, and the likelihood of progressives regaining in the next decade the commanding heights they enjoyed in 2009 is hardly minimal. Already, they’re making plans for court-packing. For conservatives to now jettison the defenses offered by a theory of constitutional law that prizes democratic legitimacy and textual constraint would strip us of bulwarks we could soon find essential.

Part of the resurgent right-wing critique of classical liberalism, including of its ideal of a rule of law administered neutrally, is that it produces a corrupt, libertine populace no longer receptive to conservative values. Even if you buy this argument, it is not at all clear why the same people who cannot be trusted in the current system will, if the guardrails are removed, prefer Vermeule’s moral priesthood to Tushnet’s. Even as a strictly political project, social conservatives are only a subset of all conservatives and libertarians, and Catholic traditionalists are only a subset of social conservatives. Abandoning the high ground of written law and history in favor of numbers is a bad bet when you also lack the numbers.

Original History
Finally, Vermeule’s proposal misreads American history, the origins of originalism, and the history of societies such as the one he envisions. He sees originalism as only a cynical tool of outcome-oriented conservatives, to be discarded when no longer needed. But this is not fair to originalists, and it undervalues the persuasive force of originalism’s pro-legitimacy arguments in winning the support of people who do not all share the same desired outcomes.

The modern originalist movement, like many of the movements embraced by today’s conservatives and libertarians, came out of the process of intellectual ferment on the right between the mid 1950s and the mid 1980s. That process was largely a reaction to the ascendant liberalism of the period, and involved a search for deeper answers that gave voice and structure to instinctual reactions. The originalist response to the liberal excesses of the Warren Court, and to decisions such as Roe v. Wade, was part of that search, and similarly involved resurrecting older ideas and truths that had once been commonly accepted.

So, yes, it is true that many devotees of originalism found the doctrine attractive because it produced results they liked. But because it is a constrained philosophy, it will not do so uniformly: On criminal justice, for example, a diligent originalist will read broad protections for criminal defendants into the Fourth, Fifth, and Sixth Amendments, but will also question the exclusionary rule and the Miranda warnings, and find that most of the anti-death penalty case law under the Eighth Amendment is illegitimate nonsense.

Yes, it is entirely fair to notice that originalism delivers better outcomes for interested conservatives than would a constitutional theory of “whatever seems fair and just to Ruth Bader Ginsburg.” But so what? Every philosophy of law and politics will be more attractive if people expect it to produce good results for them personally and for their vision of the good society. Frederick Douglass was attracted to arguments that were bad for slavery. The same liberals who argue that originalism is bad because it produces good results also argue that it is bad because it would, in their view, produce bad results such as those Ted Kennedy reeled off in his infamous “Robert Bork’s America” speech. The test of any idea or system of thought is its tendency to produce more good results than bad over time. What recommends originalism and the rule of written law is the same insight that recommends democracy, federalism, and free markets: They not only offer appealing results in the short run, but also offer a trustworthy process for reaching good results in future circumstances we cannot foresee.

Originalism has a long pedigree in American law, notwithstanding the fact that it was largely forgotten by the 1960s. That history gives it weight and force in our society, and should offer it the respect of those who value tradition. Alexander Hamilton argued that judicial review required strict fidelity to the constitution’s text. Abraham Lincoln was an originalist, and it is striking, if you re-read the debates over the Dred Scott decision, the extent to which all sides of the argument over whether black Americans could be citizens advanced their case in terms of what was understood at the time of the Founding. Vermeule may find Hamilton and Lincoln to be obsolete, but the structures they built have endured while the Catholic monarchies of their age have been swept away by stronger historical forces.

Vermeule styles his argument as “Beyond Originalism,” and I am reminded of Ronald Reagan’s words in 1964:

You and I are told increasingly we have to choose between a left or right. Well I’d like to suggest there is no such thing as a left or right. There’s only an up or down — [up to] man’s [age-old] dream, the ultimate in individual freedom consistent with law and order, or down to the ant heap of totalitarianism.

Vermeule is not going beyond, but down. He would trade the secure guarantee of written law for a pure contest of strength and will. And that is a contest conservatives should neither expect nor want to win.

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