This is the first 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. Michael Foran is a Lecturer in Public Law at the University of Strathclyde.
Adrian Vermeule’s Common Good Constitutionalism is a significant work in constitutional theory that has the potential to dramatically influence the legal and political zeitgeist. Much of it is deliberately unoriginal. Vermeule will be the first to tell you that this is a project of revival and remembrance. This shouldn’t be taken to mean that there is nothing new here, however. In fact, the impact of this book on constitutional theory poses a real threat of destabilising existing orthodoxies. The book’s contribution lies in how the author draws upon the largely forgotten natural law bedrock of western jurisprudence and thrusts it into the unwelcoming—even hostile—midsts of liberal constitutionalism.
Vermeule’s account of common good constitutionalism operates at several levels. First, he relies on the common good as a justificatory lens of analysis, focusing on what the overarching point and purpose of constitutionalism should be. At this level, law generally and constitutional law specifically can be explained by reference to several competing accounts of what their purpose is. Liberal constitutional theory generally argues that this purpose is to restrain the power of the state and protect individual liberties.
From here, competing accounts of how to best achieve this purpose can be advanced from within a shared framework. This is how we can see legal and political constitutionalists disagree strongly about which arrangement of institutional power best achieves the aims of liberal constitutionalism. The arguments inside liberal constitutionalism are so fierce that some camps disdain theory in itself, looking only at disconnected facts. Idiosyncratic adjustments are proposed using whatever lever of state is most convenient in the moment. Others may disagree strongly about which institution is most legitimate and best placed to secure individual liberties or to check the abuse of state power, but they generally tend to agree that these aims are the grounding justification for constitutionalism with no higher purpose or end from which these purposes are derived.
Common good constitutionalism is critical of this framing, instead arguing that the master principle of our public law should be that all officials have a duty and corresponding authority to promote the flourishing of each and every member of our community. The restraint of state power and the protection of liberties are derived from a more foundational commitment to the common good, which gives meaning and justification to these subsidiary aims. One important upshot of this is a recognition that the state cannot be neutral when it comes to ‘private’ abuse of power. The choice to restrain the capacity of the state to do good, to prevent abuse of power that leads to exploitation, oppression, or alienation, is a constitutional one; the choice to uphold legal structures, duties, and entitlements which allow for this exploitation is a constitutional one. In abandoning the notion that the state can be neutral, Common Good Constitutionalism returns to a more classical framing that the chief end by which state action should be measured is whether it is directed to the flourishing of all.
Because so much of our contemporary constitutional theory accepts the same liberal justifying aim, Vermeule is tasked with explaining both how his alternative is more desirable and how it can and should manifest within the particular jurisdictional environment of the United States. In this sense the book is attempting to be a work of both general and particular constitutional theory. The result is that he can advance powerful critiques of the foundational assumptions of liberal constitutionalism in general as well as their more determinate instantiation within a given jurisdiction while remaining purposively agnostic on certain questions of institutional design. He can rightly say that Common Good Constitutionalism, taken as a justificatory lens, is in principle compatible with a wide array of institutional arrangements. This is equally true of liberal constitutionalism. The difference is that Vermeule has generally confined his analysis to the abstract justificatory level and the more specific jurisdictional level, with less attention paid to intermediary approaches which can set out generally desirable institutional arrangements, defended as prudent means of achieving the common good. In other words, his theory is worked out in depth in the context of U.S. constitutional design.
This can leave non-American readers wanting more to sink their teeth into when it comes to how we might concretize a commitment to the common good outside of the American context that dominates the book. The deep American context is both a vulnerability and a strength. There’s no question that to get the most out of the book it is important to have familiarity with the constitutional context of the United States’s federal system, including a historical background of the coming together of its written constitution and amendments. But the strength of the book is that Vermeule is not speaking solely from his own ivory tower to others locked away in their own ethereal ivory towers. He puts his idea in context, including the judicial practice of theories such as originalism. It matters whether originalism in practice matches the lofty heights of its (ever liberalizing) theory.
Much has been made already outside the U.S. on Vermeule’s focus on the American context, but to say it in any way detracts from his argument is an unfair charge. He did not set out to write a book of entirely abstract constitutional theory, indeed he may well be committed to the view that one cannot possibly talk about ideal institutional arrangements, disconnected from a given context. At the very least, while Vermeule is generally committed to a collaborative form of institutional design such that legislatures and administrative agencies are not overly impeded, it seems clear that he does not wish to be too prescriptive in areas where there is room for reasonable disagreement from within this shared framework. After all, what the common good looks like in any given society has been debated for centuries by those who came before Vermeule.
There is thus quite a lot of room for the development of distinct, and at times conflicting, accounts of how best to orient our constitutional practice towards the common good. One of the strengths of the book is something that it may also be open to criticism for: the scope and ambition of a project seeking to fundamentally shift the framework of constitutional theory away from individualism and liberalism leaves so much more to explore than can reasonably be done in a book like this. But it should be addressed on its own terms as the project that it is. The book is an attempt to shake liberal constitutional theory out of its comfortable slumber and force it to defend its core presumptions. It is an attempt to shift the focus, firstly so that we are once again thinking deeply about the purpose of constitutionalism and secondly so that we can take seriously the question of the good within constitutional theory. In at least one of these, the project has clearly succeeded. In the other, time will tell.
Vermeule is clear throughout that he is relying heavily on the classical natural law tradition to provide some of the background theory from which this project can proceed. Yet, the distinctly constitutional aspects of common good constitutionalism, abstracted from the distinctly American focus of the book purposively leave room for further development within constitutional scholarship. Firstly, there is ample room to explore how these ideas of the common good do or might manifest within different jurisdictional contexts, particularly the common law and European human rights traditions. Related to this, a more thorough discussion of the conceptual relationship between rights and the common good is necessary. Veremeule has stressed that the protection of rights is necessary for Common Good Constitutionalism, but must be subordinate to the higher aim of advancing the common good. While this is generally true, there is a danger that the important place of fundamental rights as a constitutive aspect of the common good may be obscured. The book’s treatment of rights is relatively concise, focusing primarily on their manifestation within U.S. constitutional law. The theoretical work is deliberately sketched with a light hand and it seems one of the next challenges for common good constitutionalists, if they are to have any success in engaging with contemporary societal views of law, is to work on a more sustained analysis of the place of rights within common good constitutionalism. This can be done at both the most general level where theory of the nature of the common good occurs, and at the intermediary level where abstract approaches to institutional design could be presented unmoored from a particular jurisdictional context.
Relatedly, there is important work to be done to explore the role that the value of equality plays within common good constitutionalism. Beyond an emphatic rejection of utilitarianism or aggregative consequentialism and a clear commitment to respecting the moral equality of persons, the book does not do much else to explain the work that this commitment actually does. A genuinely common good must be common in its aspirational goodness—striving for the flourishing of all members of a community—but must also be common in its justice. Constitutional principles such as the rule of law and the related concept of equality before the law are also essential future projects for common good constitutionalism. Vermeule is right that constitutional theory has mostly neglected discussion about the good and its impact for constitutional theory, but the same is not as true for the constitutional implications of this commitment to the moral equality of persons. There is quite fertile ground to explore these concepts as they relate to the common good within the arena of constitutional law.
This book is intended to sketch a framework that warrants more exploration. Its primary aim is to change the way we think about constitutional theory. Questions of institutional design and the relationship between the common good and important moral concepts such as rights or equality are best seen as fertile avenues of development from the foundation set out in this book. If it succeeds as a project, it will be because it prompted deep reflection into aspects of constitutional theory that it does not expressly address itself.
Common Good Constitutionalism offers a sincere challenge to orthodox liberal constitutionalism and for that reason it has been surrounded with controversy. The controversy stems from both the challenges it poses to orthodox strands of contemporary constitutionalism and from many of the presumptions critics make about the underlying aims of the project. Sometimes claims about the latter are used as cover to avoid having to respond to the substantive critique. This might be a very successful move to make tactically, but it fails academically. It is not sufficient to simply call the ideas expressed (or indeed not expressed) in this book dangerous. Nor is it appropriate for scholars, even if they do engage with some aspects of the book, to suggest that Vermeule or those who agree with him will be unmoved by scholarly criticism, not because the critique doesn’t hit the mark, but because he and ‘his followers’ are polemicists who don’t care about academic integrity. Serious constitutional theorists doing serious academic work will engage with this book as scholars, not character assassins.
Michael P. Foran
