This is the fourth 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. Masurius Sabinus is a recent graduate of Harvard Law School.
Every spring, the Harvard Law Review rents out the Harvard Club of Boston for its annual black-tie banquet. Student-editors, alumni, and professors all throng to the Gilded-Age neoclassical ballroom in Back Bay, there to drink and dine between blazing fireplaces—and beneath the Harvard-themed tapestries that bedeck the walls. Like a tapestry decorating the halls of legal scholarship, Common Good Constitutionalism combines various intellectual strands in service of a coherent picture of the law. I aim to isolate the main strands Professor Adrian Vermeule weaves together, and to explain the purpose each thread serves in the overall work. I also highlight some strands that have received too little attention, and discuss one strand that Vermeule might have threaded more fulsomely.
As previous responses to Vermeule have recognized, the book’s predominant strand, its “superstructure,” is Thomistic. In a rare lapse of judgment, Justice Scalia (for whom Vermeule clerked) eschewed the Summa’s Treatise on Law—parts of it, anyway—as “worthy of Chief Justice Earl Warren.” By contrast, Vermeule embraces Thomas’ jurisprudence in toto. (This unqualified endorsement of Aquinas’ legal thought may help explain Vermeule’s popularity among young, socially conservative Federalist Society members: It is not that they love Scalia less, but that they love Aquinas more.)
More than any other top legal scholar today, Vermeule has internalized Aquinas’ definition of law. Law is an “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” (ST I-II q.90 a.4). Vermeule sets this definition out at the start of the book (p. 3), and reiterates it, in various formulations, no fewer than a dozen times (pp. 7, 9, 10, 44, 46, 66, 74, 75, 83, 106, 120, 127). This definition does important work for Vermeule. For instance, he uses it to reject libertarian notions of rights. Legally protected interests are themselves “ordinances created by the public authority as determinations of background principles of ius naturale and ius gentium.” (p. 127). To count as law, an individual right must accord with natural reason and be ordered to the common good. Rights are not trumps.
As this discussion suggests, another Thomistic principle that informs Vermeule’s work is determinatio. For Aquinas, determinatio is when the civil authority makes concrete the general principles of natural law. For example, “the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.” (ST I-II q.95 a.3). Vermeule places determinatio at the start of his account (pp. 9–11), while also developing it throughout the work. Whereas Aquinas views determinatio as the human-law specification of natural-law principles, Vermeule’s insight is that there can be further determinationes at the level of human law. By enacting a statute, Congress makes a determination of natural law. But Congress may then delegate to the Executive the power to make further specifications of the principle that Congress has established. Determinatio thus “describes not only the relationship between natural law and positive law, but also the relationship between higher and lower levels of positive law.” (p. 151).
Professor John Finnis has written that classical natural law is “approximated to by Ronald Dworkin’s account of law and adjudication,” so Vermeule unsurprisingly turns to Dworkin in his critique of positivist originalism. The book chiefly targets positivist versions of originalism – what Vermeule calls “positivist originalism” (p. 85) or “originalist positivism” (p. 133, 136) – rather than natural-law versions. “‘Originalism’ in the version I focus on here [is] essentially a form of positivism . . . .” (p. 15) Of course, Vermeule responds critically to Professor Jeff Pojanowski’s version of natural-law originalism (pp. 108–116). But Vermeule concedes that there is little difference between the classical legal tradition and an originalism that fully accepts the Thomistic view of law: “Attempts to combine originalism with non-positivist foundations merely collapse back into the classical law, albeit under the strictly nominal label of ‘originalism’” (p. 110). A natural lawyer – one who looks to history and tradition as the best guide to how American authorities have specified natural-law principles – could call himself an originalist, but he would not be a positivist.
Vermeule’s Dworkinian critique of originalism is thus the strongest when aimed at originalists who look to natural law only because—and only insofar as—the framers and ratifiers took natural law into account. Such originalists are indeed positivists: they deny that a legal judgment necessarily involves a moral judgment. On their view, morality is only relevant insofar as the lawmaker has incorporated his moral views into the positive enactment. Against them, Vermeule, following Dworkin, points out that you can read the Constitution’s original meaning at different levels of generality: the history itself cannot tell you which level of generality to select. (pp. 95–97). This is a damning critique of positivist versions of originalism, but it does not necessarily rebut natural-law versions of originalism. The non-positivist originalist knows to choose the level of generality that best corresponds to background natural-law principles. In Dworkin’s terms, the natural-law originalist reads the history in its best light from the point of view of political morality. Indeed, Common Good Constitutionalism endeavors to do something similar: it “aims to put our constitutional order . . . in its best possible light, given our whole history.” (p. 5).
Vermeule opposes his common good constitutionalism—an interpretation of Aquinas and the broader classical legal tradition—to the twin foes of originalist positivism and progressive constitutionalism. Just as the book’s Dworkinian strand answers positivist originalism (Chapter 3), its Newmanian strand responds to progressivism (Chapter 4). Vermeule’s critics have asserted that St. John Henry Newman’s idea of doctrinal development, on which Common Good Constitutionalism draws, is superfluous to the book. They either have not read the book closely or do not understand what they have read.
The analogy of doctrinal development in law to doctrinal development in theology makes sense once you realize that both theology and law—when done right—involve unchanging truths. The law, rightly understood, involves determination of unchanging natural-law principles. Similarly, theology involves explication of the immutable truths of divine revelation. (Public divine revelation ceased with the end of the apostolic age; neither the pope and nor the bishops—let alone the theologians—have power to alter the contents of the deposit of faith.) Like Christian doctrine, legal doctrine “may develop over time, not because principles … change, but because circumstances do, so that the application of permanent principles in new circumstances may require a development of doctrine.” (p. 17).
Legal progressivism is guilty of the same error as theological modernism. The modernist heretic believes that divine revelation, as expressed in the Church’s dogma, “not only can but should evolve and change”—usually in service of a liberal-progressive program. Likewise, the progressive lawyer “treats legal principles themselves as changing over time in the service of an extrinsic agenda of radical liberation.” (p. 118) Both theological modernism and legal progressivism instrumentalize their subjects of study, which, correctly understood, contain unchanging truths valuable in themselves.
In addition to the Thomistic, Dworkinian, and Newmanian strands, which structure the book, Common Good Constitutionalism contains some secondary strands that add important insights. In initially setting out what the common good is and what it requires, Vermeule explains that “the common good, as such, takes no particular stand … on the nature of the best political regime.” (p. 47) That is, what matters is not whether the majority rule, but whether the constitution—whatever form it takes—serves the common interest: “Democracy, like any other-regime form, is valuable only insofar as it contributes to the common good, and not otherwise.” (p. 47) This insight derives from Aristotle, who believed that monarchical, aristocratic, and popular rule were all correct forms of government (orthras tas politeias), Pol. III.7, 1279a29–30, provided they were in the service of the common good (to koinon). At the same time, rule by the one, few, and many were all corrupt forms of government (parekbaseis) if they did not serve the public interest. (Pol. III.7, 1279b4–10).
Vermeule’s invocation of this Aristotelian principle is shocking only because of the “amnesia” of the legal profession—and, for that matter, the legal academy—in America today (p. 1). Rare is the law professor who would dare to question the inherent value of democracy. Such points may be tolerable in a philosophy seminar, at least if the speaker claims only to channel Aristotle’s own view. And bow-tied collegiate debaters, whiskey in hand, may try out such ideas in theatrical speeches before other inducted club members. But Vermeule adopts this ancient idea as his own, applying it to our present situation in published academic work.
In so doing, Vermeule offers a necessary corrective to the orthodoxy of the conservative legal movement. Writing in dissent in Obergefell, Justice Scalia remarked: “[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me.” This is precisely the opposite of the Aristotelian and classical view. It is not of special importance whether the one, the few, or the many rule in a given polity. But it is of overwhelming importance whether the ordinances promulgated by the governing authority conduce to the common good and accord with natural law.
Nevertheless, Vermeule is usually quite deferential to that governing authority, as another strand in the book shows. To explain how common good constitutionalism cashes out in the American judicial context, Vermeule turns to Justice Harlan’s dissent in Lochner. Justice Harlan marks the mean between Justice Holmes’ dissent—which would always defer to the “natural outcome of a dominant opinion”—and the Lochner majority, which “assume[d] that ascertaining the common good [was] entirely committed to the judgment of the courts,” and thus declined to defer to the legislature’s reasonable judgment about the common good (p. 70). Seeking a via media between Justice Holmes and the Lochner majority, Vermeule turns to Harlan, who explained that “no one may rightfully do that which the law-making power, on reasonable grounds, declares to be prejudicial to the general welfare.” (p. 63).
Vermeule thus looks to the Court’s police powers jurisprudence, as developed by Justice Harlan in Mugler v. Kansas (1887), and as illustrated by Justice Harlan’s dissent in Lochner (1905) and by the Court in Euclid (1926). The takeaway from the line of cases is that judges should review legislative and executive action on only three grounds: (1) whether the civil authorities have acted within their sphere of competence, (2) whether they have pursued a reasonable public purpose, and (3) whether their chosen means are rational. (p. 63) On this Harlan-inspired view, nearly all judicial review would be analogous to arbitrariness review under the APA or to rational basis review under the Equal Protection Clause – both quite deferential standards. (Footnote 346, however, suggests that this may sometimes mean rational basis with a bite.)
Finally, I would like to discuss one strand of common good constitutionalism that Vermeule might have developed further: the Roman-law tradition. Common good constitutionalism seeks to recover the classical legal tradition, a core component of which is the Roman law. The book astutely emphasizes the distinction between ius (law as a general field) and lex (law in the sense of a specific enactment). And the book also draws on the Roman-law texts for their general statements about law: law is the “art of goodness and fairness,” D. 1.1.pr (Ulpian) (pp. 1, 138); the precepts of the law are “to live honorably, to harm no one, and to give each one what is due to him,” D. 1.1.10.1 (Ulpian) (pp. 7, 30); “Public law cannot be changed by private pacts,” D. 2.14.38 (Papinian) (p. 27); “Considerations of civil law can destroy civil but not natural rights,” Gaius, Inst. 1.158 (p. 44); “Knowing laws is not a matter of sticking to their words, but a matter of grasping their force and tenacity.” D. 1.3.17 (Celsus) (p. 80). But these general maxims would have been more helpful if discussed alongside more specific cases from Roman law, which the Digest supplies aplenty.
To be sure, Vermeule does delve into Roman law more deeply in some parts of the book. Unlike the majority or dissents in Obergefell – which, embarrassingly, neglected to discuss the Roman-law definition of marriage—Vermeule cites the definition of marriage in Justinian’s Institutes: “Marriage, or matrimony, is the union of a man and woman, committing them to a single path through life.” Inst. 1.9.1. (p. 218). Nevertheless, it would have strengthened his discussion of marriage if, in addition to this sixth-century definition from the Christian Emperor, Vermeule had cited the third-century definition from the pagan jurist: “Marriage is the joining of male and female, a partnership of the whole life, a sharing of divine and human law.” D. 23.2.1 (Modestinus). Likewise, Vermeule makes a lengthy analogy between the ius honorarium—the law of the praetor’s edict—and the law promulgated by modern administrative agencies. (pp. 136–38). It would have been worth noting, however, that English-speaking commentators on Roman law, such as Hans Julius Wolff, have traditionally compared the praetorian law to Anglo-American equity, and the praetorian interdicts to the injunctions of the chancery.
Although tapestries look down on Harvard law students as they dine at banquet, Roman-law maxims look down on them as they study in the library. Various juristic sayings – including Ulpian’s precepts of the law and Celsus on what it means to know the laws – line the ceilings of Langdell Library, alongside a Cicero quotation on natural law and various scriptural excerpts on justice. It is an open question whether most students pay any mind to the Latin while attempting to master 1L conlaw, 2L admin, or 3L fedcourts. Vermeule, however, makes a compelling case that such Roman-law texts are part of our legal tradition: their non-positivist conception of law – later elaborated by Aquinas and the jurists of medieval and early modern Europe – should continue to guide lawyers today.