This is the fifth piece Ius & Iustitium is presenting in its symposium on Adrian Vermeule’s new book Common Good Constitutionalism. A general introduction to the symposium may be found here. Jacob Neu is a partner at Bradley Arant Boult Cummings LLP.
When law students ask me what my favorite law school class was, they often assume it was something doctrinal or practical related to my work as a patent attorney or the broader discipline of intellectual property. So my usual answer, that I thoroughly enjoyed a class on American Legal History discussing the period from 1860-1940, often takes them by surprise. Part of this is just my hobbyist’s interest–I double majored in history alongside mechanical engineering. But the other part is that the social, historical, and legal context provided by a legal history course has helped shape how I think through the application of the law in many contexts over my eleven years of practice. I will never explicitly cite a case or legal theory discussed in that class, but knowing how the law evolved and what the competing interests and theories are does shine a light on how to craft a contract clause or structure a legal argument.
This is the first reason why a working lawyer should pay attention to Adrian Vermeule’s new book Common Good Constitutionalism. Vermeule provides a new lens—or rather, reintroduces an old lens—through which to view the functional, persuasive, and authoritative aspects of law. Once a lawyer sees how the contours of a doctrine were created or shaped throughout the 19th century by these perennial concerns of the classical legal tradition, he begins to see how the concerns that animate such doctrines have continued to survive and shape the law today. Such was my own experience reading back through the major cases that defined the peculiarly American doctrine of fair use in copyright law—a doctrine that the great natural lawyer Justice Joseph Story effectively defined in the 1836 case Folsom v. Marsh. And one can see how neglect of these concerns have in some cases deformed the law in ways that have resulted in the law becoming unpredictable or messy—as I have previously described both with respect to fair use in copyright and with beneficial utility in patent law. Vermeule’s book focuses on the constitutional and administrative foundations of the political order, but as these instances taken from copyright and patent law show, they pervaded the bench and bar’s understanding of what law was and how it functioned. If nothing else, adding this understanding to one’s legal training helps the working lawyer see the inner life of the law, understand what concerns may drive a judge to this or that conclusion, and craft better legal documents and briefs.
The second reason is that Common Good Constitutionalism is a small but important brick to fill two large holes in the edifice of American legal education. The first hole is the failure to provide students a basis from which to understand and critique the leading theories of constitutional interpretation. Law students attend law school to learn the law. This is tautological, yet it also hides a question: what is the law? Positivist originalism would suggest that the law is simply the lex, the text of the constitution, statute, ordinance, or legal decision divorced from any other political, societal, or moral concern. As Justice Gorsuch puts it in Bostock, “Only the written word is the law.” On the other hand, progressive or “living tree” constitutionalism acknowledges the existence of ius but proposes that such non-textual concerns and political morality are always changing in the service of promoting greater and greater individual autonomy. Common Good Constitutionalism proposes a third way. It re-centers the civic and moral relationships to law, but does so based on an enduring tradition reaching back to pre-Christian Ancient Greece and Rome.
This leads to the other large hole in American legal education: a lack of teaching in the philosophical underpinnings of law and its relationship to morality, justice, politics, and policy. A non-lawyer might think such concerns are a core part of legal education, but this is sadly not the case in most contemporary law schools. Faced with (real and legitimate) concerns about making more and more costly legal education “practical” and preparing law students to have value for their firms and clients from the day they pass the bar exam, most law schools pay little attention to the broader concerns about what law is and its relationship to other aspects of society. Even when they do turn to these topics, the natural law and classical legal tradition are ignored or derided as obscure and obsolete. As a practical matter, any interested students have to have studied them before law school (such as in an undergraduate philosophy program) or become autodidacts during law school. My own experience as a mechanical engineering major, while certainly necessary for becoming a patent lawyer, provided no background for approaching legal theory. While the concerns of the legal academy and the bar associations for providing a better practical education are legitimate, they should not come at the expense of exposing law students to the historical legal tradition, methods, and theory. Common Good Constitutionalism provides a concise, inviting, and provocative introduction to legal theory. Given how these concepts can inform the everyday tasks of working lawyers, I hope that law schools will answer the challenges facing legal education by seeking to provide a truly holistic education, not merely a “practical” one.
Professor Vermeule has done working lawyers a service with Common Good Constitutionalism, providing a basis for understanding the inner life and concerns of the law, showing how they present themselves in real-world applications, and expanding the working knowledge of lawyers to inform and direct their craft. Readers may not agree with every application Vermeule proposes in the last chapter of his book, but by thinking through them critically, we can come to apply those lessons to our areas of expertise to answer the social, business, environmental, and moral questions of the day. These are lessons every working lawyer would be well advised to heed.