Adrian Vermeule’s (un)Common Good: A Legal Philosophy for a Postliberal World

Dr Vermeule is one of the leading proponents of Catholic integralism and the Ralph S. Tyler Professor of Constitutional Law at Harvard Law School.

From The European Conservative

By Kurt Hofer

Common Good Constitutionalism
by Adrian Vermeule
Cambridge, UK and Medford, MA: Polity, 2022

There are two ways to read Adrian Vermeule’s new book, Common Good Constitutionalism. One of them is as a legal disquisition to be sparred over by America’s law school professoriate. The other is as a political treatise that, like Patrick Deneen’s Why Liberalism Failed (2018) or Yoram Hazony’s Conservatism: A Rediscovery (2022), attempts to bridge the divide between academic readership and mass appeal. If read the former way, as a piece of legal scholarship, Vermeule’s cri de coeur against both the conservative (“originalist”) legal establishment and the progressive (“living constitutionalist”) one would exchange blows from within the ivory tower that, like the proverbial tree in the woods, might fall without anybody to hear it—save for a few bowtied and bespectacled academics. If read as the latter, a broader paradigm shift in legal political philosophy might occur. Just as much of the MAGA base may have never read Deneen or Hazony but viscerally intuit the meaning of postliberalism in the America First agenda, they would come to understand, through an as-of-yet unforeseen champion, a populist voice speaking around and beyond the legal establishment directly to them.

These two readings of Vermeule’s book–as an arcane product of academia and a work discernible by a broad enough audience to effect concrete political change–are, in fact, not mutually exclusive. Vermeule himself purports in his introduction to have written his work mainly for the latter–or at least for the segment of America’s media-academic-political establishment with enough influence and heft to reach the latter:

My intended audience is neither the student of first-order policy questions, nor the professional student of jurisprudence…. Rather, my audience is the intelligent observer of the law, whether or not a lawyer, who intuits that something has gone very wrong with our law and legal academy, but isn’t sure exactly how or why.

When I first heard Adrian Vermeule speak, at the Restoring a Nation conference at Franciscan University Steubenville in October, I initially struggled to process his academic diction. The uninitiated reader of his book may be similarly jarred when encountering in the opening pages italicized legal concepts deriving from Latin. Ius commune, “the classical synthesis of Roman law, canon law, and local civil law”; the distinction, clearer in French or Spanish than in English, between law as lex (“enacted positive law”) or law as ius (“the overall body of law… containing general principles of jurisprudence and legal justice”); and the ius gentium (“the law of nations”) as distinct from the ius civile (“the law of a particular jurisdiction”) are prime examples. At the same time, however, Vermeule’s recourse to latinate concepts of classical legal theory, as he and a growing body of European scholars such as Conor Casey at the University of Liverpool have argued, also means that common good constitutionalism has implications–and applications—for Europe as much as for North America.

In between panel sessions at Steubenville, I struck up a conversation with two fellow attendees—one of them, like me, was a bit lost by Vermeule’s lecture, while the other insisted that I give his work another chance. I had my doubts, but my interlocutor’s enthusiasm for Vermeule’s work left me intrigued. So, I decided to read Vermeule’s book, which I had opened before the start of the conference but failed to complete. Like faith or friendship, as I soon discovered, Vermeule’s Common Good Constitutionalism rewards perseverance and persistence.

Vermeule’s book is at its best—and by “best,” I mean most relevant to a non-legal or law school readership—when it speaks to the broader postliberal movement in ways that are recognizable to disciples like myself, of Patrick Deneen, Yoram Hazony, and others of the postliberal ilk. Fortunately, this is something Vermeule does throughout the book. And he does so in prose that is both poetic and substantively rich. One prominent example, which will strike close to home to all convinced postliberals—those of us who reject the ossified political status quo of right and left as ill-equipped to today’s political needs—has to do with Professor Vermeule’s deconstruction of what he perceives to be a false dichotomy between originalist and progressive legal scholars.

Just as Patrick Deneen, for those of us convinced by his argument, shattered the illusion or the right-left political distinction by arguing that establishments Republicans and Democrats are both at heart “liberals,” albeit of different emphasis, Vermeule similarly shatters the illusion of distinction between progressive and conservative jurisprudence:

In a conjunction of interest based on opposite motives, progressives and libertarians tend to portray [the government’s jurisdiction to promote the common good] as highly restrict[ed]—progressives because they want to emphasize the need to break with the past, libertarians because they want to disguise as originalist and traditional their attempt to sharply restrict the ruling power of the state.

In the realm of law concerning marriage or abortion, for instance, liberals insist that tradition—biblical or otherwise—must not restrict the ever-expanding category of individual freedom from constraint. Libertarians, for their part, argue for a kind of specious neutrality: Who am I to judge? Such thinking is patently evident in the arguments of ‘conservative’ United States Senators such as Mitt Romney or Cynthia Lummis who recently voted in favor of a law reaffirming same-sex marriage rights. They did so by claiming to separate their personal “biblical” view of marriage, from the “secular” view of the institution held by others. Much as Democrat and Catholic President Joe Biden has argued that he can’t “impose” his views of abortion onto others, plenipotentiaries of social conservatism now argue that their views about marriage can only be argued by force of example, not the law. Somehow, then, politicians purportedly at opposite ends of the political spectrum magically arrive at the same conclusion.

The law, according to Vermeule’s, never elides “normative assumptions” entirely. As he succinctly puts it, “Every polity proclaims and enforces truths that cannot be questioned, at least at certain times or places or in certain ways; it is idle to pretend otherwise.” When an act or action is enshrined into law, then, it is in essence promoted or encouraged—be it no-fault divorce, abortion on demand, or recreational marijuana use. When a new option is open to someone, the likelihood increases that the citizen will take that opportunity, rationalizing their choice of what they may not have heretofore considered. In the language of a liberal, freedom always wins.

For Vermeule, common good constitutionalism is not meant to fill a “vacuum” which nature abhors; rather, by asserting that the common good does exist and can be defined and applied, he contests the cultural Left and libertarian Right’s chimera of a values-neutral jurisprudence. “[T]he pretense of neutrality toward the good” is a fiction manufactured by both the left and right-wing schools of regnant liberal jurisprudence. Of course, the very idea of a common good is irksome, perhaps to liberals only slightly more than to libertarians. (A liberal acquaintance of mine referred to Professor Vermeule’s idea of the common good as “authoritarian moralism.”) What then, is the common good? How is it defined and what does it look like in practice? Vermeule’s definition rests on a classical foundation, which he updates for the needs of the 21st century. The “classical triptych” of the common good is “justice, peace and abundance”; its modern corollary is “health, safety and a right relationship to the natural environment.” To achieve these, Vermeule argues that in many cases the American government, including its bureaucracies, will need to assume a redefined, often larger role than it does today. As he puts it,

[A] just state is a state that has ample authority to protect the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events.

To say that such language might make fellows at traditional conservative think tanks like the American Enterprise Institute cringe is probably an understatement. And yet, the analysis is in keeping with the postliberal imperative to dynamite the neoliberal status quo and imagine new political futures. Critics have charged, and will likely continue to ad nauseam, that Vermeule’s legal theory amounts to an un-American or un-Anglo-American conservatism that is in effect right-wing statism. Indeed, Vermeule attempts to preempt criticism of his defense of state power in chapter 4, wherein he contrasts what he calls “developing constitutionalism” with the living constitutionalism of progressives.

“Developing constitutionalism” differs from the progressives’ living constitutionalism because unlike the latter its core principles are unchanging and hence inherently more stable. Whereas liberal jurisprudence constantly seeks new frontiers in the manichean battle for the self’s liberation from externally imposed restraints, whether moral or, more recently, biological, developing constitutionalism is rooted in the (re)application of classical (Roman) law and the use of reason to novel conditions:

Under developing constitutionalism, the fundamental background principles of the constitutional order, derived from the natural law and the law of nations and then incorporated […] into the positive law, remain constant over time. Interpreters develop those principles in changing circumstances [hence Vermeule’s mention of pandemics, climate change etc.] but the principles themselves are not understood to be subject to the interpreters’ sovereign will. Common good constitutionalism thus recognizes the phenomenon of development doctrine, but not for progressive, liberationist and disruptive ends. Rather the purpose is to preserve the rational principles of the constitutional order as the circumstances of the political, social, and economic environment change.

Vermeule argues that common-good constitutionalism was “central” although not “exclusive” to the legal minds of the founders and that the tradition thrived well into the nineteenth century. Persuasive as Vermeule’s description and defense of “classical legal theory” is, skeptics of his argument may find fault in the fact that the legal scholar does not pinpoint an exact moment the tradition was jettisoned. There is no “May ’68” to be indicted in the way that one can point to the ascendance and eventual hegemony, for instance, of the hippy counterculture in the modern West; instead, Vermeule cites what he sees as mistaken, anti-common good legal precedents evident beginning with specious Supreme Court decisions against New Deal legislation meant to protect workers’ rights. The anti-common good or left-liberal right-libertarian legal trend apparently accelerated in the 1960s and continues, to this day, in a mistaken Supreme Court ruling against vaccine mandates, which runs counter to the common good imperative to promote public health. Such reasoning, whether in the case of the New Deal or vaccine mandates, runs the inherent risk of appearing indistinguishable–as a matter of praxis–from the progressive left’s jurisprudence with which Vermeule refutes any ideological kinship.

A future challenge for the postliberal legal movement–as well as its political philosophy as evinced by Sohrab Ahmari and Patrick Deneen, among others–will be to disentangle the (common) good exercise of state power of FDR from LBJ’s ‘Great Society.’ Indeed, as Christopher Caldwell convincingly argues in The Age of Entitlement the woke furies of today’s federal bureaucracies are the natural offspring of the civil rights movement, not its usurpers. Ronald Reagan was indeed and FDR-era Democrat but against LBJ’s expansion of the welfare state; and yet we seem to know much more about the ‘classical liberal’ side of Reagan than his New Dealer bent. Because this distinction matters, it will be the job of committed postliberal conservative scholars to flesh out this difference for a generation or more of conservatives who were spoon-fed, from their political infancy, on Paul Ryanesque libertarianism.

The prospect of inevitable conflict with both the woke left operating under the banner of 1960s legal precedents and the “classical liberal” small government right draws out the inevitable question: Is common good constitutionalism worth the opportunity cost of going to war with both the conservative and progressive legal establishments and their party backers? The litmus test for common good constitutionalism as a legal philosophy is not qualitatively different from the one applied to the then-candidate Trump during the Republican Primaries in 2016 or to the Brexit referendum vote of the same year. If you’re happy with the status quo, there’s nothing to get worked up about. But if you aren’t, you need to read Vermeule’s book, make an examination of your conservative conscience, and decide for yourself.