By: Marshall Bursis
Sparking immediate controversy among legal scholars, Harvard law professor Adrian Vermeule’s essay “Beyond Originalism” rejects originalism as merely an instrument to achieve conservative judicial outcomes. To replace it, he advocates for a theory of constitutional interpretation called “common-good constitutionalism,” an interpretative framework that would empower federal and state governments to “direct persons, associations, and society generally toward the common good.” In welcoming “strong rule” to achieve these ends, Vermeule advocates reversing the Supreme Court’s free speech, abortion, and privacy jurisprudence and removing the checks on executive power by establishing “a powerful presidency ruling over a powerful bureaucracy.”
Both liberal and conservative legal thinkers have objected to Vermeule’s constitutional heresy. Much of their criticism focuses on Vermeule’s treatment of the Constitution’s text as superfluous and malleable lyricism, but these critiques do not get to the heart of Vermule’s proposal. Clearly, Vermeule is not concerned with the niceties of constitutional proceduralism. He is making a moral argument, not a legal one.
Even if one agrees with the ends Vermeule seeks, they should be troubled by his means. Vermeule dismisses many of the restraints on state power and the personal liberties they protect as “abstract object[s] of quasi-religious devotion.” The goal of all constitutional systems, Vermeule argues, “is to promote good rule, not to ‘protect liberty’ as an end in itself.”
A more ethical system of constitutional interpretation, however, would recognize the interconnectedness of the state’s aims and the way it achieves its definition of the “common good.” Fydor Dostoevsky’s Crime and Punishment warns against the moral perversion of a utilitarian, Vermeuleian style of ethics. Raskolnikov, the novel’s anti-hero, calculates a moral justification for murder. He convinces himself of his righteousness by appealing to an amorphous common good: “Murder her and take her money and then use it to dedicate yourself to the service of all humanity and to the common good” (emphasis added).
Vermeule’s casuistry is not dissimilar. Authority, he argues, “can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them.” “Subjects will come to thank the ruler,” he writes, whose coercive power encourages behaviors that “promote communal well-being” (emphasis added).
Contrary to Vermeule, the existentialist philosopher Simone de Beauvoir defended freedom as both an end and a means. For her, “the freedom of one man almost always concerns that of other individuals.” Vermeule is so convinced of his own definition of the common good that he makes little room for competing visions of the good life. For Beauvoir, while the tyrant “rests in the certainty of his aims,” the virtuous individual constantly questions if his end is “contested by the sacrifices through which [he] aim[s] at it.”
Vermeule denies the necessity of the individual to make their own meaning. He rejects the claim of the plurality opinion in Planned Parenthood v. Casey that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” as “abominable, [and] beyond the realm of the acceptable.” Rather than persuade and convert the wayward among us, Vermeule would employ the force of the state to impose a legal code of Catholic morality.
Vermeule’s is a constitutional framework that lacks the Augustinian humility towards the limited capacity of states to create Christian justice on earth. “True justice,” Augustine writes, “does not exist except in that republic whose founder and ruler is Christ.” The model Christian ruler, for Augustine, was Emperor Theodosius, who “took more joy in belonging to the church than he did in being a king on earth.” Vermeule’s theology, though clearly Thomistic in parts, also ignores Thomas’s warnings against the excessive legislation of morality. Arguing against those who would have law curb all vices, Thomas writes that human law should not force citizens to “abstain from everything evil.” Humanity’s imperfect nature would prevent complete compliance, causing an “erupt[ion] into worse evil things.”
The common good Vermeule seeks cannot be won through coercive state action that promotes a particularly narrow conception of freedom at the expense of others. His ambitious, and destructive, utopianism, if ever implemented, would render society less free and less just.
References
Adrian Vermeule, “Beyond Originalism,” https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/.
Augustine, Political Writings, edited by Michael W. Tkacz et al.
Fydor Dostovesky, Crime and Punishment, translated by Michael R. Katz.
Garrett Epps, “Common-Good Constitutionalism Is an Idea as Dangerous as They Come,” https://www.theatlantic.com/ideas/archive/2020/04/common-good-constitutionalism-dangerous-idea/609385/.
Randy E. Barnett, “Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution,” https://www.theatlantic.com/ideas/archive/2020/04/dangers-any-non-originalist-approach-constitution/609382/.
Simone de Beauvoir, The Ethics of Ambiguity, in Basic Writings of Existentialism, edited by Gordon Marino.
Thomas Aquinas, On Law, Morality, and Politics, translated by Richard J. Regan, edited by William P. Baumgarth.
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