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03/22/2022

Problems With Vermeule, Part 1: Introduction
Chris Green

Adrian Vermeule’s new book, Common Good Constitutionalism, contains a number of attacks on the idea that the meaning expressed by the Constitution’s text in its original context is binding on officials today. He complains that we should not be “enslaved to the original meaning of the Constitution” (p. 36), but unlike modern progressives, he is not concerned with keeping the Constitution in step with today’s zeitgeist. Progressives complain that the meaning expressed by constitutional text in 1787, 1791 and 1868 is too old for us to care over-much about it, but Vermeule thinks that it is actually too young: we should instead look back to the likes of second- and third-century Roman jurist Ulpian and Thomas Aquinas to decide constitutional cases today.

While the book is very accessibly written and has a lot of clever quips, its lack of attention to issues of philosophical and historical detail is pretty frustrating. In future posts I’ll explain seven aspects of Vermeule’s inattention to detail:

1. The argument that the framers were not originalists, and so that originalism is self-refuting, depends on contradictory arguments. Careful attention to particular instances where the framers explained interpretation—especially their insistence that the framers’ intention must be gathered from the words of the Constitution—makes clear that the framers’ understanding of the nature of the Constitution was in fact textualist and originalist.

2. Vermeule steadfastly refuses to pay attention to contingent aspects of the American constitutional order that tie our federal Constitution’s nature to the meaning expressed by its text in its original context. This is why Vermeule so unhelpfully allows arguments about the nature of law to blur into arguments about the nature of our particular Constitution, characterizing originalism and textualism as species of positivism. The Constitution’s original meaning can instead be seen as the mechanism by which Americans have determined, in Aquinas’s terms, who exactly it is “who has care of the community,” and what exactly those authorities have “promulgated.”

3. Vermeule’s refusal to engage with American contingencies causes particular trouble with his dismissal of the argument that I and others have made about the Article VI oath. The idea is not simply that Article VI requires an oath, and oaths require originalism, but that “this Constitution” in the particular context of the American Constitution is both (a) textual and (b) historically located at a point in time. Other countries can and do use different sorts of oaths and have different sorts of constitutions. Originalism would be required under such constitutions, if at all, on the basis of those countries’ contingencies, not the existence of an oath as such.

4. The book barely mentions the text of the American Constitution. None of the clauses of the Fourteenth Amendment, for instance, are ever quoted in full. While Vermeule rightly praises Justice Harlan’s approach to the Fourteenth Amendment in his Lochner dissent, he wildly overstates the differences between Harlan and the majority and vastly undersells Harlan’s commitment to the original meaning of the Fourteenth Amendment, especially the original meaning of its Privileges or Immunities Clause.

5. Vermuele’s neglect of the last 30 years of scholarship on the original meaning of the Fourteenth Amendment leads him to prematurely cast his lot with Dworkin’s 1990 level-of-generality objection to Bork about how broadly to read “equal” in the Equal Protection Clause. If as many scholars suggest, we should move equality law to the Privileges or Immunities Clause, there are historical and textual resources for answering questions about equality doctrine that Dworkin, writing in 1990, knew nothing about.

6. Vermeule refuses to think carefully about the distinction between meaning and application, disparaging the distinction as a “counsel of despair” only eight pages before describing as a “model opinion” the famous use of the distinction in Euclid v. Ambler Realty. Euclid makes clear, however, that a change in the facts can only support “a degree of elasticity” in constitutional applications, and none at all in constitutional meaning. Euclid’s author, Justice Sutherland, was quite emphatic that the Article VI oath rendered the Constitution’s original meaning binding.

7. Vermeule disparages intermediate views that seek to appreciate some of the moral insights of the past while acknowledging the binding authority of the Constitution’s original meaning for today’s Article VI oath-takers. He ignores, however, two simple ways to integrate concerns about substantive justice and moral reality with binding original meaning. Considerations of moral reality like the common good can (a) serve as defeasible indications of that meaning, as Chief Justice Marshall explained in US v. Fisher in 1805, and (b) serve as part of the factual ingredients to the application of partly-moral terms like “citizen,” as explained in Justice Washington’s enormously influential opinion in Corfield v. Coryell in 1825.