Eleventh Circuit chief judge William Pryor has just published a critique of law professor Adrian Vermeule’s “common good constitutionalism,” an approach to constitutional interpretation that Vermeule has set forth both in some articles and in a recent book with that title. I can’t succinctly summarize Pryor’s critique, so I will instead offer some excerpts:
I want … to address a kind of results-oriented jurisprudence that is indistinguishable in everything but name from Justice Brennan’s living constitutionalism: Harvard Law Professor Adrian Vermeule’s so-called common-good constitutionalism—a variant of what I call living common goodism. Vermeule’s approach, in his words, “take[s] as its starting point substantive moral principles that conduce to the common good, principles that [judges] . . . should read into the majestic generalities and ambiguities of the written Constitution.” [Pryor’s italics.] Replace “common good” with “human dignity” and Vermeule’s living common goodism sounds a lot like Brennan’s living constitutionalism. Indeed, the difference between Brennan’s living constitutionalism and Vermeule’s living common goodism consists mainly in their differing substantive moral beliefs; in practice, the methodologies are the same….
The Constitution does not give judges the power to “read into” the text of the Constitution “substantive moral principles that conduce to the common good.” And fashioning that kind of jurisprudence would conflict with natural law. As Professor Robert George has explained, when courts exceed their jurisdiction and usurp “legislative authority,” whether for good or bad causes, “they violate the rule of law by seizing power authoritatively allocated by the framers and ratifiers of the Constitution to other branches of government.”…
A major theme of Vermeule’s recent popular-level polemic defending living common goodism is that it supposedly prevailed at the Founding. He contends that living common goodism “is the original understanding” of the Constitution. In his revisionist historical account, “the classical legal tradition structured and suffused our law” “[r]ight from the beginning, long before the Constitution of 1789.” And living common goodism “has since been displaced . . . by originalism,” which he labels as a creature of the late 20th century. Rubbish!…
Vermeule’s argument for that historical revisionism does not withstand scrutiny. He argues that three opinions—the first Justice Harlan’s dissent in Lochner v. New York, the decision of the Supreme Court in United States v. Curtiss-Wright, and the decision of a New York court in Riggs v. Palmer— “illustrate how deeply the classical legal tradition has always infused our law.” Setting aside whether these decisions support Vermeule’s methodology, it strains credulity to suppose that a dissenting opinion from 1905, a Supreme Court decision from 1936, and a state-court decision from 1889 could establish that living common goodism is deeply rooted in the American tradition: that it “structured and suffused our law” “[r]ight from the beginning, long before the Constitution of 1789 was written.” Vermeule’s argument is about as persuasive as using Roe v. Wade as evidence that living constitutionalism is deeply rooted in our legal tradition.
Pryor goes on to argue that both Harlan’s dissent in Lochner and the Court’s ruling in Curtiss-Wright were originalist and that “most American courts … rejected Riggs in favor of the textualist approach [Vermuele] says was invented after the Second World War. He argues more broadly that Vermeule’s revisionism “flouts a mountain of historical evidence” dating back to the Founding era.