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Mark Pulliam Reviews Adrian Vermeule's Common Good Constitutionalism
Michael Ramsey

At the Acton Institute Blog, Mark Pulliam: The Founders’ Constitution and its discontents (reviewing [unfavorably] Adrian Vermeule's Common Good Constitutionalism).  From the core of the argument:

Vermeule’s jargon-laden critique, incorrectly perceived as coming from “the right,” has attracted attention for its man-bites-dog novelty. Vermeule aims to discredit originalism altogether and replace it with his bespoke legal order. The moral framework of Vermeule’s integralism (summarized in a 2020 essay he wrote for The Atlantic, entitled “Beyond Originalism”) is hostile to the libertarian bent of the Supreme Court’s current jurisprudence on free speech, abortion, sexual liberties, and related matters.

Despite charges that Vermeule advocates “a kind of reactionary substantive due process,” he is not conservative in any meaningful sense. He represents an odd hybrid of conventional progressivism (support of federal power, administrative agencies, economic regulation, labor unions, and environmental protection) and traditional morality typically associated with social conservatives (opposition to abortion, LGBTQ rights, same-sex marriage, pornography, etc.). Coincidentally, his “constitutional theory” mirrors those views. As Robert Bork wrote in 1982, “the judge who looks outside the Constitution always looks inside himself and nowhere else.” The same is true for constitutional theorists.

Claiming to revive what he calls the “classical legal tradition,” Vermeule exhibits considerable erudition regarding Dworkinian moral philosophy, Roman law, Thomistic political thought, natural law, and the abstruse literature of constitutional “theory.” Judged in terms of ambition and ingenuity, Vermeule earns high marks. Alas, he fails to persuade that these concepts have any relevance to the Constitution as written. Brimming with Latin phrases, and punctuated with jarring citations to figures wholly unrelated to the American Founding (i.e., Giovanni Botero, Carl Schmitt, Johannes Messner, St. John Henry Newman), his self-referential book not only disregards the Founders’ Constitution but stands our constitutional democracy on its head. In a mere 184 pages of text, without a single reference to James Madison, and nary a mention of the Federalist Papers, Vermeule purports to erase and rewrite the Founding. This is pure hubris.

And in conclusion:

Judges are tethered by text, precedent, and well-established norms of interpretation. Academic scholarship can and does influence what passes as the “mainstream” in constitutional jurisprudence—the “Overton Window,” as it is sometimes called in other contexts. “Originalism,” although far from perfect (and never self-executing), limits the exercise of judicial discretion to some extent. Originalist judges have to offer a plausible textual basis for their decisions. Vermeule’s open-ended theory, in contrast, would relieve judges of any such constraint, empowering leftist jurists and unelected bureaucrats to dress their personal predilections up as the “common good”—a wholly subjective inquiry.

Stripped of its “historicist supineness, tendentious scholarship, and political utopianism,” Vermeule’s “radiant vision” of unconstrained government power is a misguided prescription for tyranny. The Founders would be appalled.

See also, as previously noted, this review by my colleague Steven D. Smith and this long critical discussion by Brian Tamanaha.