Steven Douglas Smith on Adrian Vermeule's "Common Good Constitutionalism"Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted The Constitution, the Leviathan, and the Common Good (Constitutional Commentary, forthcoming) (20 pages) on SSRN.  Here is the abstract:

On its face, Adrian Vermeule’s Common Good Constitutionalism appears to do battle with the entire corpus of contemporary legal and constitutional theory. But the conflicts are mostly contrived. Vermeule picks gratuitous fights based on skewed descriptions of generic opponents; meanwhile, although seeking to revive “the classical legal tradition,” he does not systematically defend that tradition at the points where real, substantive disagreements exist. As a result, the book provides little illumination of any of its major themes-- the classical legal tradition, the American Constitution, or contemporary constitutional theory.

And from the introduction, which is even a bit more harsh:

Adrian Vermeule’s Common Good Constitutionalism is a curiously strident and yet reticent book– boldly belligerent but oddly timorous. Vermeule seems to be itching to fight, and so he constructs and characterizes chosen opponents so as to preempt possible lines of agreement and thus ensure that there will be something to fight about, or at least to pretend to fight about. And yet at the places where differences are most substantive and consequential he is regrettably
unforthcoming. Thus, Vermeule presents himself as a pugnacious critic of pretty much the entire corpus of contemporary constitutional thought, but his opposition is based on skewed descriptions of that thought that often seemed calculated mostly to provide him with concocted opponents to batter. And although zealously in favor of what he calls the “classical legal tradition,” he seems unwilling to acknowledge and publicly defend essential elements of that
tradition. In the end, Vermeule comes across as a Don Quixote who is determined to do battle but is hazy about exactly what or whom he needs to do battle with, or where, or why.

There are a number of thoughtful criticisms in the review; this one seems particularly telling:

In this respect, Vermeule’s book seems analogous to a treatment that earnestly insists that law is supposed to promote “justice,” and then indignantly denounces this or that particular law by declaring-- in conclusory fashion-- that these laws are not just. Such a treatment seems merely obtuse. Everyone knows that law ought to promote justice; the challenge is to show more concretely what justice entails and why a particular law is not just. In a similar way, Vermeule’s platitudinous invocations of the common goods of health, safety, and such coupled with conclusory denunciations of this legal doctrine or that judicial decision as contrary to the common good do little to illuminate any genuine controversies of our time.

It seems there must be more to the common good position that this. But what? For someone like Aquinas, the good and hence the common good belonged to the same purposive framework in which the natural law had its home. Within that kind of framework, it would be understandable how the good of a person and perhaps of a community could be something other than the subjective satisfactions or utilities of individuals. And it seems that Vermeule is likewise trading on some more substantial but mostly unspoken assumptions about what is truly good for human beings, whatever their subjective preferences or “utilities” may be. Indeed, he acknowledges that the common good “presuppose[s] a substantive conception of human flourishing.” (32) Elaborating on what that substantive conception is might provide a more solid basis for Vermeule’s various denunciations and prescriptions, and might illuminate and support his recurring criticisms of liberal, autonomy-based morality. But here again, just when Vermeule might join a real debate and make a valuable contribution, he holds back.

One might put the point this way: it seems what Vermeule’s real quarrel with modern law and governance is not so much jurisprudential as moral and even metaphysical. In training his fire on legal positivism (and later originalism), he has picked the wrong targets. But where the actual battles need to be fought, Vermeule is pretty much a no show.

And on Vermeule on originalism:

Vermeule’s assault on originalism is more extensive and impassioned: he repeatedly contends that originalism is an “illusion” (22, 91-116), and without actually examining the rationales that originalists give for their position he charges or insinuates that they are acting from ignorance, political motivation, or bad faith. Surely here there must be a genuine disagreement? And yet upon closer examination, it becomes quite unclear exactly what or whom Vermeule thinks he is disagreeing with, or how he disagrees, or why.

Thus, Vermeule himself provides a cogent explanation for how originalism, far from being a competitor to [classical legal tradition], might fit comfortably within CLT; and yet he seems determined to refuse admission. He explains how CLT supports or even entails an extensive although limited positivism: in performing their determinatio function and seeking the common good, authorities will promulgate positive law; and in interpreting such positive enactments, textualism might be the best approach, because there are very good reasons to interpret an enactment according to the understanding of those who made it. (73-75) Indeed, any other approach would lead to a kind of “law without mind,” because the positive law would be determined in ways that no one who made those laws wanted or intended. (97, 105)

All of this seems quite sensible. And applied to constitutional provisions, this approach would amount to . . . originalism.