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Constitutional Theory

The “Common-Good” Manifesto

In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.

Common Good Constitutionalism

By Adrian Vermeule. Medford, MA: Polity Press. 2022. Pp. viii, 270. $59.95.

Introduction

Two prominent scholars once described a “genre” of literature — the “constitutional manifesto” — that “sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics.”1×1. Eric A. Posner & Adrian Vermeule, Outcomes, Outcomes, New Republic (Sept. 1, 2009), https://newrepublic.com/article/62532/outcomes-outcomes [https://perma.cc/98RR-P8FN] (reviewing The Constitution in 2020 (Jack M. Balkin & Reva B. Siegel eds., 2009)). Such a work must “expound a philosophical vision of constitutional law and politics” that’s intellectually serious but “nonetheless accessible to a broad audience.”2×2. Id. Not only that, it must be “politically savvy, so that it may guide a political and legal movement in particular directions over time.”3×3. Id. Yet the case for its constitutional method, “openly defended as a tactic for achieving a political agenda,” can’t succeed as a political matter if it also adheres to traditional academic values like “a commitment to public candor.”4×4. Id. If it tries to split the difference, the wires will show.

One of those scholars, Professor Adrian Vermeule, has now tried his own hand at the genre. Three years ago, he announced that originalism had “outlived its utility” for producing a “substantively conservative approach to constitutional law and interpretation.”5×5. Adrian Vermeule, Beyond Originalism, The Atlantic (Mar. 31, 2020), https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037 [https://perma.cc/X82X-4TNP]. In Common Good Constitutionalism, he offers a new constitutional manifesto, expounding a philosophical vision that might “direct persons, associations, and society generally toward the common good.”6×6. Id. Alas, the wires still show.

Common Good Constitutionalism has been accompanied by an impressive intellectual and rhetorical campaign, and it has already been widely (if mostly skeptically) reviewed.7×7. See, e.g., J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. 1 (2022); Randy E. Barnett, Deep-State Constitutionalism, Claremont Rev. of Books, Spring 2022, at 33; Christopher R. Green, Problems with Vermeule, Common Good Constitutionalism (Mar. 22, 2022) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4075031 [https://perma.cc/4P3X-LYHD]; Jeffrey A. Pojanowski & Kevin C. Walsh, Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule’s New Theory, 98 Notre Dame L. Rev. 403 (2022); William H. Pryor Jr., Against Living Common Goodism, 23 Federalist Soc’y Rev. 24 (2022); Steven D. Smith, The Constitution, The Leviathan, and the Common Good, 38 Const. Comment. (forthcoming 2023), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4098880 [https://perma.cc/JHN2-NBZW]; Leon Wieseltier, Christianism, Liberties, Spring 2022, at 326, 357–62. For shorter reviews along similar lines, see Peter Berkowitz, Too Good to Be True: The Virtues and Vices of Common-Good Constitutionalism, Wash. Free Beacon (Mar. 20, 2022, 5:00 AM), https://freebeacon.com/culture/too-good-to-be-true-the-virtues-and-vices-of-common-good-constitutionalism [https://perma.cc/LQU4-V28F]; Matthew J. Franck, Calvinball Constitutionalism, Pub. Discourse (May 3, 2022), https://www.thepublicdiscourse.com/2022/05/82092 [https://perma.cc/698X-KGZB]; John O. McGinnis, Originalism for the Common Good, Law & Liberty (Apr. 28, 2022), https://lawliberty.org/book-review/originalism-for-the-common-good [https://perma.cc/J5DW-TNU2]; James M. Patterson, Uncommonly Bad Constitutionalism, Law & Liberty (Apr. 28, 2022), https://lawliberty.org/book-review/uncommonly-bad-constitutionalism [https://perma.cc/FKS2-AL83]; and Micah Schwartzman & Richard Schragger, What Common Good?, Am. Prospect (Apr. 7, 2022), https://prospect.org/culture/books/what-common-good-vermeule-review [https://perma.cc/B7SG-EWRZ]. For a comparatively sympathetic review, see R.H. Helmholz, Marching Orders, First Things, May 2022, at 51. We share the skeptical bottom line, but we worry that the book’s critics have yet to cut down to the bone. What’s wrong with the book is not that it advances a form of living constitutionalism, that the common good is unknowable, or that pursuing the common good will necessarily lead to untoward results. Indeed, the book highlights important strands of Founding-era and nineteenth-century legal thought, of which scholars of all stripes should take account. What’s wrong with the book is that it fails to hold up at a theoretical level — either on its own terms or as compared to the originalist approach it purports to threaten. Vermeule is a very deep thinker, working with a many-centuries-old legal tradition, yet the results are surprisingly superficial.

The problem, we think, is that the demands of a political and legal campaign and those of a constitutional theory are not the same. Though Vermeule writes with extraordinary skill, the sort of red meat that inspires a movement can, on reflection, seem rather thin gruel. Vermeule once reminded his many Twitter followers “that twitter is a dark arena of rhetorical combat, not an academic seminar. Tweet accordingly.”8×8. Adrian Vermeule (@Vermeullarmine), Twitter (Nov. 4, 2021, 6:29 PM), https://web.archive.org/web/20211105015916/https:/twitter.com/Vermeullarmine/status/1456433457874317319 [https://perma.cc/V56V-FW47]. We fear that the spirit of the dark arena has now spread to the monograph — and that the tools and techniques that serve so well in one medium turn out to be handicaps in another.

Nonetheless, we take the book seriously as an intellectual challenge, which is why we feel compelled to respond. This poses a further issue. If Common Good Constitutionalism were more straightforwardly structured, it might be easier to lay out its argument, to explain where we disagree, and then to set out the evidence that might support one position against another. Instead, communicating a full sense of the book sometimes requires careful attention to its rhetorical strategies and direct criticism of what seems to us to be failures of scholarship. Noting such failures can sound ad hominem, particularly because you, the reader, have no way of assessing them, short of reading the book yourself and deciding whether we have been fair. If these constraints lead in places to an unusually sharp tone, we apologize for its necessity.

In any event, we proceed as follows. In Part I, we take Common Good Constitutionalism on its own terms, arguing that the theory fails to support the book’s hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. In Part II, we argue that its chief objections to originalism are unpersuasive and already answered in the literature it cites. In Part III, we attempt a sympathetic reconstruction of the book’s arguments as contributions to originalist debates, though we find them underbaked as a matter of both history and jurisprudence. In Part IV, we discuss Vermeule’s political aims and their relation to the book’s cult following.

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* Professor of Law, University of Chicago Law School.
** Antonin Scalia Professor of Law, Harvard Law School.

The authors are grateful to Joel Alicea, Curtis Bradley, Samuel Bray, Jud Campbell, Nathan Chapman, Sherif Girgis, Richard Helmholz, William Hubbard, Genevieve Lakier, Brian Leiter, Richard McAdams, John Mikhail, Martha Nussbaum, Jeffrey Pojanowski, Eric Posner, Zachary Price, Richard Re, Alan Sachs, David Sachs, Amanda Schwoerke, Eric Segall, Geoffrey Sigalet, Kevin Walsh, and the participants in the University of Chicago Law School faculty workshop for advice and comments, and to Sarah Leitner, Samuel Lewis, Matt Phillips, and Owen Smitherman for excellent research assistance.

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