The "Common-Good" Manifesto: Vermeule Responds

And a few points of ours in reply.

With admirable speed, Adrian Vermeule has already posted a somewhat extensive response to our review of his book Common Good Constitutionalism, calling us "The Bourbons of Jurisprudence" in a blog post at Ius et Iustitium.

For the most part our review can rest on its own. We may have more to say on further reflection, but for now we'll flag just a few clarifications, as readers trying to follow the exchange may have missed them.

First, Vermeule's post focuses on alleged defects in our interpretive approach. But the review is largely an effort to take his book and its arguments on their own terms; most of our criticisms would hold regardless of our own interpretive views. If we turn out to be wrong about interpretation, that doesn't show common good constitutionalism to be right.

Second, Vermeule alludes to something problematic in our jurisprudential views, which resemble those of H.L.A. Hart in focusing on current legal practice. As we see things, the practice that matters most is found in our legal system's higher-order commitments, not its day-to-day outcomes. And while we think Hart is mostly right (and that originalism is right, and that they're two great tastes that taste great together), we've noted that other jurisprudential theories may lead to originalism too—including natural-law theories, or even Vermeule's own theory, properly carried out. We didn't place these arguments front-and-center in the review, which is more about Vermeule's work than ours (see point #1). But we're not trying to hide the ball: for those interested in reading more, see the articles linked above. (We'll also post a draft of a new jurisprudence article, forthcoming in the Oxford Journal of Legal Studies, as soon as we can work out the licensing permissions.)

Third, Vermeule now describes our past work as "a particular and rather recondite academic version of originalism, one of perhaps a dozen such versions now floating about the academy." As we note in our review, if his real target is other versions of originalism, and not our "idiosyncratic views," we'd be happy to agree with many of his critiques. But the book claims to address all these versions of originalism at once—and, in particular, presents our work as being, "[a]t the level of scholarly justifications, the leading theoretical defenses of originalism today." Whether they deserved that praise then, or no longer do now, is for the reader to decide!

UPDATE: The Oxford Journal of Legal Studies article mentioned above, The Official Story of the Law, is now available online. Discussion here.

Comments

[gormadoc]

Bourbons still rule Spain.

[Michael D]

“Common good” is a phrase which should be excluded from any legal document, especially the Constitution. It is a purely subjective term which every individual’s own set of values determines. Said better than I:

“There is no collective good. Strictly speaking, there is not even any common good. There are in the natural order conditions and materials through which the individual, by virtue of his receptive and creative faculties and volition, is capable of experiencing good.”

Isabel Paterson from The God of the Machine

In reality the “common good” is typically determined not by a majority within society but by the most powerful members of the ruling class and is used as a veil for centralizing power. A free society demands not just freedom from the tyranny of an individual king, but also from violations of individual rights under the guise of the common good.

[Brett Bellmore]

Vermeule is a symptom of some on the right concluding that originalism is either never going to triumph, or will triumph in such a degraded, watered down form as to not matter. It's only natural that, if you despair ever restoring the rule of law to constitutional jurisprudence, your fall back position would be that the rule of man be by YOUR man. That YOU get to bring down the lightning and give your creation life, rather than the other guy.

To a considerable extent, the compromises some originalists have made in confronting existing precedents led to Vermeule. You might want to own up to that.

[Sarcastr0]

No, Brett, some on the right embracing a theocratic autocracy is not the fault of the left.

Fuck off with that blame game apologaeic.

[Brett Bellmore]

Like you have any insight into how people on the right think.

[Stephen Lathrop]

Bellmore, what evidence makes you sure people on the right even do think? I accept it as a hypothesis. But where is evidence of thought in Trump's cult of personality, so vividly renewed in Wyoming's primary outcome? Where is evidence of thought in buying into the big election lie? Where is evidence of thought in reflexive politics, with no more ambition for governance than reflexively frustrating the left?

I concede Mitch McConnell is a superlative schemer. But how could anyone use his record to suggest he, "thinks?" Not saying he doesn't. Just saying that if he does, you have no more idea what he has been thinking than anyone else. My guess? What's best for Mitch McConnell.

[Brett Bellmore]

There's actually more cultishness on the anti-Trump side. Most Trump supporters just like his policy positions, and that he actually tended to act on his campaign promises. They like him for perfectly conventional political reasons.

I run in Republican circles these days, most of the people I know vote Republican. None of them think he's a personally admirable guy. (Entertaining, perhaps, which is hardly the same thing.) Politically admirable, maybe. Not personally.

But look at the attitudes of people opposed to him. They can't just say they disagree with his positions. No, he has to be a crook, an idiot, not capable of planning or reason, a bad businessman... The trash talk is ceaseless and totally over the top.

There's no Trump cult, there's a Trump anti-cult.

[Stephen Lathrop]

By the way, Bellmore, do you concede Liz Cheney is thoughtful? Do you deny she is on the right? I think she is the most thoughtful elected official among Republicans. And I can understand her fine. Might even vote for her if she runs as an independent to sink Trump.

[Brett Bellmore]

I'd say she's on the right. I think her recent behavior suggests that she's not terribly thoughtful, or perhaps just let her hatred of Trump overcome any tendency she had in that direction.

As an experienced politician, she was well aware of the price of her decisions: The voters are not inclined to reward politicians who admit to disagreeing with them about something important. And yet, she insisted on running for her party's nomination even after giving those voters the finger. Lost by nearly 38%, a pretty stunning loss for an incumbent.

I think the more thoughtful pols in her position were the ones who proceeded to retire without wasting resource in that manner.

[Stephen Lathrop]

Hard to read that piece by Vermeule as instructive with regard to originalism, pro or con. But in footnote 28 there is this gem:

Rather than avoiding the responsibility of choice, history requires of the originalist a whole new range of contestable…decisions. Thus, rather than ending dispute with an unarguable fiat from the past, his use of history simply becomes another arena for interpretative disagreement… If [originalists] wish to accord authority to history – and not to their own historicized myths – they cannot ignore those limits.

Of course, the last thing originalists want to do is, "accord authority to history." Where would that leave the originalists themselves? Alito and Thomas made that crystal clear in Dobbs and Bruen. "Their own historicized myths," on the other hand, turned out to be just the ticket.

[The Margrave of Azilia]

Serious inquiry: Which interpretations of the Constitution do people think can be changed *only* by amendment? That is, interpreting those provisions in a different way would be usurpation?

[Stephen Lathrop]

Do you prefer answers based on what people say they think? Or can you make do with their approval of non-amendment changes they approve of as evidence for what they think?

[The Margrave of Azilia]

It's too bad Vermeule is the messenger for reinstating the classical legal tradition - he admits that restoring that tradition is a *separate* issue from the Vermeulian interpration of how that tradition applies to the U. S. But he certainly has his own interpretation of that latter issue - which seems to overlap with his particular speciality, federal administrative law (which is constitutional, I bet you never guessed that!).

It's also unfortunate that most of the real-world examples he gives of "good" interpretation lead to pro-government results.

[CJColucci]

Philosopher J.L. Mackie once said that there is no natural law of property, but it is natural that there be some law of property. Human beings in a wide variety of circumstances have come naturally to agree, through experience or, rarely, conscious reasoning, that some practices are, broadly speaking, conducive to human flourishing and some are not, and that the law ought to have something to say about it. To that extent, it makes sense to talk about "natural law." But when we get beyond the broad strokes, and drill down to the details of local practice, references to Natural Law are little more than the Argument From Typography, and utterly useless.

[The Margrave of Azilia]

I regret to say I don't understand your first paragraph.

[Sarcastr0]

Those are all correct (except not sure what the third one means).

This outcome oriented rot is gaining a following of unprincipled hacks but so far it is pretty small. So the plan is to mock this and anyone who follows or defends it.

See how I didn’t say ‘this is the right entire, they love it.’ You could learn from that and not demonize the left!

[Sarcastr0]

So much for render unto Caesar.

This is nonsense - whatever natural law there is men collectively do not have access to its inner workings. If you want to roll philosopher king then pure reason will do. Otherwise you need procedures other than intuiting that nature wills it.

[The Margrave of Azilia]

"that things like murder and incest and bestiality have negative consequences and should thus be illegal in civil law"

I presume that *most* people here agree on that, but what definition of positivism would make this positivist?

[The Margrave of Azilia]

"If you want to roll philosopher king"

I merely rolled margrave. But I rolled a really high Charisma to go with my rank. Men (and dwarves) cheerfully follow me into battle.

[Sarcastr0]

Leadership is a good feat.