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02/05/2022

Adrian Vermeule on Common Good Constitutionalism
Michael Ramsey

In the New York Times, Adrian Vermeule: Supreme Court Justices Have Forgotten What the Law Is For.  From the introduction:

The great promise of our legal system as understood by many modern theorists — that law can create a framework to reconcile plural interests in a diverse society — has manifestly failed. Instead the law has become ever more politically contested and bitterly divisive; the tolerance celebrated by the proponents of liberalism appears to be more science fiction than fact. Something has gone badly wrong: It is unclear, in America in 2022, what the point of the law is, what higher ends it should strive to attain. We have forgotten what law is for.

Today’s reigning theories of law are exhausted. On one side, legal progressivism shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores. This relentless crusade undermines the family, traditional morality and the well-being of the citizenry — especially those who lack the resources to buffer themselves against societal disintegration.

On the other side, originalism, which pretends to separate law from justice, rests on an invented tradition that has projected itself back into the past. As the historian Jonathan Gienapp puts it, originalists’ understanding of the Constitution is “anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century.” Supposedly originalist judges constantly appeal, explicitly or implicitly, to a contemporary view of justice to fix the meaning of general or abstract texts (like “due process of law” or “freedom of speech”) or otherwise to resolve hard cases.

And from later on:

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.

A note accompanying the essay says the Professor Vermeule has a forthcoming book called "Common Good Constitutionalism."  I look forward to reading it, because so far I confess that I am entirely unable to understand how his program is anything other than "courts should rule in accordance with my moral intuitions because that's best for everyone."  For example, in a part of the New York Times essay not quoted above, he complains about Justice Gorsuch's opinion in the Bostock case.  But I don't see that common good constitutionalism explains how Bostock should have been decided (though I bet if I knew what his moral position on private sexual orientation discrimination is, I would know how he thinks it should have been decided).  And, though I agree on the need to improve the health of the constitutional order, I don't see how a jurisprudence of common good is going to provide a remedy where there is no agreement on what constitutes the common good.

Though I have no easy solutions to the health of the constitutional order, I would guess that empowering judges to aggressively pursue the common good (as they see it) is not the solution.  Instead, I might suggest (1) judges undertake to say what the law is rather than what it should be, and (2) when judges are unsure what the law is, they stay out of it.

(Thanks to Andrew Hyman for the pointer and for his thoughts on the common good constitutionalism project.)