Adrian Vermeule is a rarity: a self-described conservative in the legal academy. The Tyler Professor of Constitutional Law at Harvard, he displayed his talents on March 31 in an Atlantic essay entitled “Beyond Originalism.”
One might expect a conservative legal scholar to be a defender of the Constitution. Yet here, the article would disappoint. Rather than be “enslaved to the original meaning of the Constitution,” Vermeule calls for “a different, more ambitious project,” a new doctrine that he solemnly baptizes as “common-good constitutionalism.”
Vermeule, in short, is an inveterate critic of the 1789 document. He rejects “the terms set by legal liberalism” and urges abandoning “the defensive crouch of originalism.” In its stead, he prescribes common-good constitutionalism to institute a form of government that opposes liberty as an end in itself and emphasizes strong rule that eagerly legislates morality, “a core and legitimate function of authority.” Moreover, his system would instill respect for “the authority of rule and rulers” and “the hierarchies needed for a society to function.”
Vermeule’s analysis unfolds in a critique of recent rights-based jurisprudential theories coming from both the left and the right. On the left-libertarian side, he recalls the philosophy of legal scholar Ronald Dworkin, who advocated “moral readings of the Constitution.” One result of this formula was the 1992 Supreme Court decision of Planned Parenthood v. Casey that encouraged each individual to “define one’s own concept of existence, of the universe, and of the mystery of human life.” Vermeule exercises all of his conservative muscle in decrying this “abominable” statement and places it “beyond the rule of the acceptable forever.” At the same time, however, he finds partial common ground with Dworkin. His own common-good constitutionalism “is methodologically Dworkonian, but advocates a very different set of substantive moral commitments and priorities.”
On the conservative doctrine of originalism, Vermeule concedes that it initially provided some help to conservatives who in the 1970s were “struggling against an overwhelmingly left-liberal culture.” But, he now finds it no longer worth defending.
Turning from constitutional scholar to political analyst, he reasons that if Trump is re-elected, a version of conservative legalism will prosper, and that even if Trump is defeated, legal conservatism “will remain a potent force.” Vermeule here may underestimate the influence of left-liberal culture, which showed its power when it engulfed the Obama White House in rainbow lights following the Court’s new definition of marriage.
More to the point, a primary purpose of originalism is not to provide a full interpretation of the Constitution, but to prevent activist judges from imposing their own personal moral and ethical standards on the nation. Such choices, where law prescribes, should be determined by elected officials and/or by authorities in the different states. As the originalist Antonin Scalia pointed out in his dissent in the 2014 Obergefell decision, the five justices in the majority
Know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.
Doesn’t Scalia’s originalism here allow for just the kind of moral principle that Vermeule supports?
The nub of Vermeule’s argument, however, does not turn on these secondary issues, but on the elliptical meaning of common-good constitutionalism. Vermeule here leads us back from contemporary politics to the late 16th-century and the little-known theory of “reason of state” (ragion di stato) that provides much of the inspiration for his doctrine. This theory’s view of rule, or what one can call its “constitution,” aims to promote the trinity of “peace, justice, and abundance,” to which Vermeule immediately adds, on his own reckoning, “health and safety”—thereby showing his relevance in light of the current COVID-19 pandemic.
Reason-of-state constitutionalism, he reiterates, aims to reinforce authority and hierarchy and to implement sound morality. Transferring this moralistic authoritarianism to our time, Vermeule argues for “a powerful presidency ruling over a powerful bureaucracy,” which acts through “administrative law’s inner morality.” Other features of our form of rule, such as representative government, are not mentioned, perhaps because they have so little place in the administrative state that Vermeule favors.
Common-good constitutionalism expresses, as one would expect, Vermeule’s own views of the common good. Even so, he seems to ignore ways in which America’s form of rule, under certain jurisprudential theories, is supportive of some of the characteristics of reason-of-state theory. No doubt, a concern for rights has more weight in American constitutionalism than Vermeule finds in the 16th century, but he surely knows that the meaning of constitutionalism in the broadest sense is not exhausted by what is spelled out only in the written Constitution.
Many of the underlying ideas of constitutionalism are explained and elaborated in the debates and commentaries on the written document, such as in the Federalist Papers, where one will find accounts of justice (“Justice is the end of government. It is the end of civil society”), of defense and peace, of abundance or wealth, and of limitations as well as protections of rights. Vermeule should present these ideas so that we get a fuller account of our constitution, rather than the mistaken and ideologically driven interpretations of it. He might find much more to his liking than he thinks.
Adrian Vermeule is an intelligent iconoclast who has crafted a rhetoric to appeal to a small audience of impressionable acolytes. He must know that his proposal has little prospect of winning the approval of a majority today. Near the end of his essay, he pulls back and, in more accommodating language, speaks of “the Constitution’s commitments to promoting the general welfare and human dignity.” This is a good start—except that the Founders avoided speaking of dignity, a word that modernity has filled with dangerous Dworkinian implications.
This piece originally appeared in Law & Liberty