Wednesday, March 02, 2022

Ten Observations About Adrian Vermeule's Book "Common Good Constitutionalism"

By Eric Segall

Professor Adrian Vermeule of Harvard Law School is somewhat of a polarizing figure whose opposition to gay rights and same-sex marriage are, to this writer, unpersuasive and troubling. But those subjects make up only a tiny portion of his new book "Common Good Constitutionalism." On many matters of public policy and constitutional law, Vermeule's suggestions are, and he will hate this word, progressive. More importantly, his book contains a devastating critique of the never-ending debates between originalists and living constitutionalists--debates that have not furthered constitutional discourse in a helpful manner. We must stop dismissing people because we disagree with some of their ideas.

I have been attacked on Twitter for taking this book seriously. Some of those charges suggest that, because the man himself has said this or that allegedly offensive thing in the past, his book should be ignored. But I am discussing the book, not the man. Without minimizing my strong disagreements with Vermeule on some fundamental issues, the book is important and valuable because it presents a smart, sophisticated, and fresh (he would likely say ancient) perspective on the law. As a law professor, why wouldn't I be interested?

This blog post is not a full blown review. I will be writing one of those for the law reviews or some other forum. This post is motivated by my desire to wrestle with and learn from people with whom I disagree on some core matters and my belief that people shouldn't judge a book until they actually read it. There is so much for everyone in the book's 184 pages (before the footnotes).

Below are ten observations about "Common Good Constitutionalism" that I hope will motivate some people to read it. 

One final disclaimer. I am neither a philosopher nor someone steeped in classical law. I will not be critiquing the more esoteric parts of the book. I am sure there is a lot there for people who study those subjects. My focus is on those parts of the book that have real implications for constitutional law on the ground. 

1) The book is clear, transparent, and accessible, The Latin words require some attention but everything else is right there on the surface to like, love, hate, or simply reflect on.

2) The overarching theme of the book is that law should promote the "common good," not the aggregation of individual preferences. Throughout the book, Vermeule targets economic libertarians and those who urge individual sexual freedom as people who favor court decisions that do not further the common good. I agree with the former criticism but not the latter but all that shows is my values are different from the author's. The overarching theory, that government should be structured to further the common good as opposed to personal liberty, is sophisticated and I cannot do it justice here other than to say it is definitely worth taking seriously.

3) Throughout the book, Vermeule attacks both originalism and living constitutionalism. His critique of originalism is spot on when he says that originalism is an "illusion" because there is no way to implement it without importing substantive normative values. Additionally, his point that New Originalism leads to results few in the founding generations of 1788 and 1868 would agree with is just true. As he so elegantly put it: "It is a strange originalism indeed that would be unanimously voted down by the enacting generation." I might have said "not recognized" but the point is pretty much the same. Very few people in 1868 thought the 14th Amendment guaranteed equal rights for women; yet most originalists today through various sleights of hand reach that result. The result is correct, the theory is wrong.

4) Vermeule's critiques of living constitutionalism carry some weight mostly because he and I agree about judicial deference on most issues. He goes a bit astray, however, in two ways. First, he at times seems to equate living constitutionalism with progressivism, and they are not the same thing as the judicial engagement folks demonstrate. Those who want to bring back Lochner, a case Vermeule strongly criticizes, are living constitutionalists but not progressives, and there are many other examples.

5) Vermeule attacks a straw man when he says that "progressive constitutionalism ... treats legal principles as themselves changing over time in the service of an extrinsic agenda of radical liberation." This charge is unfair. Virtually all self-identifying living constitutionalists believe constitutional holdings and principles derive from imprecise text broad enough to support many different rules in the common law tradition. Living constitutionalists don't just make principles up in the way Vermeule means, and, to the extent constitutional law is really just common law in disguise, which it is, Vermeule should appreciate its ancient origins.

6) The book's defense of a large administrative state is breathtaking in its persuasiveness. In a large complicated economy like ours, agency actors simply have to do most of the work. The judiciary is always there as a backstop but only for truly arbitrary decisions. The Supreme Court is, of course, heading in the opposite direction, and folks who oppose this form of judicial aggression would do well to read this book. 

7) Vermeule's stance on standing is both correct and would be welcomed by most progressives. He rightly criticizes the post-1960's judicial fabrication of an injury-in-fact requirement, and he thinks the Court went wrong in the 1970's with cases like United States v. Richardsonwhere the Court did not allow plaintiffs to litigate for the public good. There is nothing in text or history to suggest that requirement. 

Moreover, to the extent the Court has not allowed Congress to authorize pure citizen suits, a move led by the late Justice Scalia, Vermeule argues the Justices actually have it backwards. We should welcome such suits more than ones seeking to only vindicate private rights. The Justices often say separation of powers concerns justify standing requirements, but those values should come in at the merits stage where Vermeule (and I) both argue for strong deference. The author's critiques of standing doctrine are spot on.

8) Contrary to what people have said on social media and elsewhere, there is nothing in this book about setting up a religious government or using religious doctrine to coerce behavior. Some of Vermeule's suggested modifications of doctrines would lead to religion-friendly results but that is true for most of the right wing of the legal academy. Whatever Vermeule said or didn't say before he wrote this book, there is nothing in "Common Good Constitutionalism" that is outside normal constitutional law discourse when it come to religion. 

9) I strongly disagree with Vermeule's belief that the same-sex marriage decisions were wrong, though I think that the cases should have been explicitly decided on equal protection grounds. Here, the book is a bit internally inconsistent. At different points, Vermeule argues in favor of a "developing constitutionalism" that takes into account major societal changes. He uses that idea in part to support a strong administrative state. Well, morals and values change dramatically as well, and my view is that common good constitutionalism can easily accommodate treating LGBTQ+ individuals as full and equal citizens under the law who have the same marriage rights as cisgender heterosexuals.

10) Perhaps the biggest issue of our time, or any time, is climate change. You simply won't read a better defense of government attempts to deal with this crisis than the one in this book. Progressives need  to read Vermeule's strategy for stopping the courts from interfering with governmental efforts to combat this grave risk to the planet.

What makes a great book? Originality-check. Excellent writing-check. Sophistication-check. Thorough research-check. What is not required for a book to be great is that everyone agrees with everything in the book, that the author is likeable (I've never met Vermeule so no idea), or that one agrees with some or even most of the book. 

"Common Good Constitutionalism" presents a theory of government, law, and the Constitution that could be a game changer in many positive ways if only people would 1) read it; and 2) not bury the book because some of it is offensive to those of us who favor real equality under the law for everyone. I have never read a book on law that didn't have some content I disfavored and probably neither have you. That is simply not a reason to stop reading.