The Constitution’s assignment of the judicial power to Article III judges is a real constraint on government action.
In The Atlantic, Adrian Vermeule, a professor at Harvard Law School, has argued that originalism has outlived its usefulness as a jurisprudence of the Right. In its place he argues for “common-good constitutionalism.” This jurisprudence would focus on strengthening a structure of governance that would foster adherence to moral norms and strengthen hierarchies, civic associations, and the family
Even for those, like me, who disagree profoundly with Vermeule, his essay usefully clarifies three important points that are often neglected in contemporary constitutional debate.
First, Vermeule demonstrates that right-wing living constitutionalism is a live substitute for originalism. Thus, abandoning originalism opens the route to a right-wing results-oriented jurisprudence as much as a left-wing results-oriented jurisprudence. And that jurisprudence can be given a lovely slogan. It is hard to oppose the common good, at least at some level of generality, just as it is hard to oppose some of the mantras of living constitutionalism, like ever-expanding liberty or deepening democracy. But left-liberals are horrified by Vermeule because they quickly recognize that his slogan brings with it a lot of policies they find despicable. So do the slogans of left-wing living constitutionalism to anyone but the convinced left-liberals that dominate our universities. If anything, Vermeule’s essay brings into sharp relief what a progressive results-oriented jurisprudence is really about.
Citizens disagree about policy and even the content of what makes a good life. That’s why a constitution in a pluralist society should be limited to provisions that gain a supermajoritarian consensus. Vermeule’s essay should remind left-liberals that abandoning originalism permits judges to impose policies they will hate, should the “wrong” judges get in power.
Second, Vermeule’s essay reveals the dangers of a large “construction zone” within originalism. One of the defining characteristics of the so-called new originalists is the centrality of the distinction between the zone of interpretation and the construction zone. When the original meaning is determinate, the content of a provision can be settled by interpretation. But when the original meaning of a constitutional provision is indeterminate, the content of the provision cannot fully be determined by interpretation. Instead, the law must be established in some other manner—such as an appeal to a normative theory—within what is called the construction zone. A version of common-good constitutionalism is one such normative theory.
It is true that, at times, Vermeule suggests that he simply rejects the obligation to follow the text of the Constitution. For instance, he says, “Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them.” But at other times in his essay, he suggests that his concept of the common good can be read into the “ambiguities and majestic generalities of the written Constitution.” He uses the term “general welfare” as an example. While he derides the debates about originalist theory as “baroque,” here he is channeling a theoretical move of the new originalism. New originalists agree that when the constitution is ambiguous or vague (read “majestic generalities”), the implementer of the Constitution is free to construct constitutional law within these interstices.
Thus, should he so choose, Vermeule could fit a good deal of his theory of common-good constitutionalism into new originalism so long as it has a large construction zone. In his response to his new originalist critics of the essay, he satirically suggests as much.
To be sure, Vermeule has a strong normative view of how construction should proceed, but nothing about the new originalism precludes that view within the construction zone. Reading Vermeule in this manner underscores a problem for the new originalism. When the construction zone is large, there is little to distinguish new originalism from living constitutionalism. To be sure, all new originalists agree that when the meaning of a constitutional provision is clear (as when the Constitution assigns two senators to every state), there is no room for normative values to fill the construction zone. But living constitutionalists rarely believe that the Court can override such clear provisions either.
A large construction zone allows for a common-good gloss on the Constitution no less than a libertarian gloss. A large construction zone again makes constitutional law normative most of the way down, permitting the Constitution to be bent in a variety of political directions, including libertarianism and communitarian ones.
The way to make new originalism clearly incompatible with Vermeule’s common-good constitutionalism is to show that the Constitution is not full of ambiguities and majestic generalities that can be used as vehicles for realizing the constitutional implementer’s peculiar normative vision. But most new originalists have trouble doing so for two reasons. First, they do not have a clear metric for deciding when the Constitution is clear enough to preclude construction. Secondly, they often eschew the precise legal meaning of the Constitution in favor of an ordinary meaning that is more likely to be ambiguous or vague. As Mike Rappaport and I show in a forthcoming article, “The Power of Interpretation: Minimizing the Construction Zone,” a clear metric for determining meaning (e.g. “always choose the better-supported meaning”) and the deployment of the Constitution’s relatively precise legal meaning substantially reduces the size of the construction zone and makes it difficult, if not impossible, for it to be bent to comprehensive external normative ends, including those pursued by Vermeule. Thus, Vermeule’s provocation itself reminds us that deciding among originalist theories is not a matter of choosing “baroque” details but getting the essence right.
Finally, Vermeule’s essay should also stimulate reflection on the many ways that the Constitution, when read according to its original legal meaning, permits the pursuit of the common good. This is politically important because, as Randy Barnett has noted, some young conservatives have become disenchanted with originalism. I believe that this is in some measure because many originalists do not sufficiently emphasize the space the Constitution gives to pursue the common good as most of them would understand it, even if does not permit the instantiation of Catholic integralism of the kind Vermeule might wish.
The original Constitution contained very few restrictions on the ability of the states to enact laws for whatever their legislatures thought to be the common good. Certainly there was nothing to prevent them from regulating sexual behavior and abortion or from generally trying to separate responsible freedom from the license that destroys communities—a position that Nelson Lund and I developed here.
The Fourteenth Amendment added some important additional restrictions. But even if these Amendments included the incorporation of the Bills of Rights, they did not much constrain the states in matters of social policy important to conceptions of the common good, particularly if the rights are understood with the specificity with which they were fixed at the time of the Fourteenth Amendment.
To be sure, the constitutional authority to pursue such policies lies in the states, not the national government. As a result, citizens can leave states that have a vision of the common good differing from their own—something that may be anathema to an integralist, but acceptable to most social conservatives. The right of exit merely prevents the pursuit of the common good from becoming tyrannical. And if the vision of the common good that a state pursues is attractive, the same right of exit should benefit all who want to move there.
So those who want space for the states to be able to pursue the common good in many of the ways that Vermeule would like should be attracted to originalism and specifically to a version that rejects reading constitutional rights in the abstract when they are better read with specificity in their legal and historical context. (To be clear, I do not generally favor using state power in this way as a policy matter.) In any event, that strategy is surely more likely to be successful than pursuing common-good constitutionalism as an independent constitutional ideal. It took 40 years for originalism to fundamentally change the legal culture. It has adherents throughout the judiciary and in the academy. Vermeule’s version of common-good constitutionalism is confined to a party of one person, however clever and illuminating.