The Volokh Conspiracy
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My review of Adrian Vermeule's new book Common Good Constitutionalism in the Claremont Review of Books is now posted. You can download it here. There was more in the book with which I agreed than I expected. But ultimately, I think it fails as either a critique of originalism or as a presentation of a viable alternative to it. Here is the abstract:
In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.
To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are "arm chair originalists," however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.
Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer–oddly except for environmental regulations where he would allow "public interest" lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good–assuming it is correct–will actually be adopted and served by the administrative state.
Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Good Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative–socially or otherwise–about Adrian Vermeule's commitment to the unfettered regulation of Americans by the deep state.