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05/20/2022

Everybody's Doing It ...
Michael Ramsey

... reviewing Adrian Vermeule's Common Good Constitutionalism.  Here's Randy Barnett in the Claremont Review of Books: Deep-State Constitutionalism.  From the abstract:

In this review, I explain how "Common Law Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.

To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are "arm chair originalists," however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.

Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer--oddly except for environmental regulations where he would allow "public interest" lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good--assuming it is correct--will actually be adopted and served by the administrative state.

Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Law Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative--socially or otherwise--about Adrian Vermeule's commitment to the unfettered regulation of Americans by the deep state.

(Via Volokh Conspiracy.)

And from Richard Reinsch at the Daily Signal: Did the Conservative Legal Movement Err by Supporting Originalism? From the introduction:

Adrian Vermeule leads a growing chorus of critics on the right heralding some form of common goodism as the locus of constitutional interpretation in the judicial system. In “Common Good Constitutionalism,” Vermeule proclaims that originalism fails as a matter of constitutional interpretation because it is a deeply insufficient account of law. This is a critically flawed interpretation because it ignores that our written Constitution does not depend on a range of natural law principles for its interpretation.

The immediate triggers for Vermeule’s departure from originalism are the Supreme Court’s decisions in Obergefell v. Hodges (2016), which declared a constitutional right to same-sex marriage, and Bostock v. Clayton (2020), which extended the categories protected by the 1964 Civil Rights Act to include “gender.” The Justice Neil Gorsuch opinion employed a textualist reading of the Civil Rights Act of 1964 to make it apply to gender, not just sex, regarding discrimination. 

After these two decisions, the response from many conservatives became, If this is what originalism cannot prevent in the case of Obergefell, or what it delivers in the case of Bostock, then we need better thinking.

Vermeule informs, “Originalism is now in a decadent phase in which the elaborate theoretical structure propping it up dominates the landscape of the American legal right.” Indeed, so discredited is originalism that a “truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.”

From the conclusion:

Vermeule is at pains to defend an administrative state that’s key development emerged in the same timeframe that he also thinks the classical legal tradition was sloughed off. He does not attempt to reconcile why or how this occurred or what it means for his overall project.

At a minimum, I would have thought that Vermeule would have wanted to show that the administrative state in America is not the outcome of pragmatism, scientism, and the belief in the efficaciousness of arbitrarily defined power to achieve progressive goals.

He does not consider Publius’s framing of tyranny as the joint exercise in one set of hands of legislating, executing, and judging laws. And that is the work of our administrative state, the part of government that Vermeule believes is most in touch with the natural law. The part of government that issues more than 3,000 rules and regulations a year compared to 90-100 actual laws passed by Congress annually. Such a configuration of power is a terrible temptation to its misuse.