The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here is the introduction:
Two prominent scholars once described a "genre" of literature — the "constitutional manifesto" — that "sits uneasily between the scholarly or theoretical analysis of constitutional law and the buzzwords of day-to-day constitutional politics." Such a work must "expound a philosophical vision of constitutional law and politics" that's intellectually serious but "nonetheless accessible to a broad audience." Not only that, it must be "politically savvy, so that it may guide a political and legal movement in particular directions over time." Yet the case for its constitutional method, "openly defended as a tactic for achieving a political agenda," can't succeed as a political matter if it also adheres to traditional academic values like "a commitment to public candor." If it tries to split the difference, the wires will show.
One of those scholars, Professor Adrian Vermeule, has now tried his own hand at the genre. Three years ago, he announced that originalism had "outlived its utility" for producing a "substantively conservative approach to constitutional law and interpretation." In Common Good Constitutionalism, he offers a new constitutional manifesto, expounding a philosophical vision that might "direct persons, associations, and society generally toward the common good." Alas, the wires still show.
Common Good Constitutionalism has been accompanied by an impressive intellectual and rhetorical campaign, and it has already been widely (if mostly skeptically) reviewed. We share the skeptical bottom line, but we worry that the book's critics have yet to cut down to the bone. What's wrong with the book is not that it advances a form of living constitutionalism, that the common good is unknowable, or that pursuing the common good will necessarily lead to untoward results. Indeed, the book highlights important strands of Founding-era and nineteenth-century legal thought, of which scholars of all stripes should take account. What's wrong with the book is that it fails to hold up at a theoretical level — either on its own terms or as compared to the originalist approach it purports to threaten. Vermeule is a very deep thinker, working with a many-centuries-old legal tradition, yet the results are surprisingly superficial.
The problem, we think, is that the demands of a political and legal campaign and those of a constitutional theory are not the same. Though Vermeule writes with extraordinary skill, the sort of red meat that inspires a movement can, on reflection, seem rather thin gruel. Vermeule once reminded his many Twitter followers "that twitter is a dark arena of rhetorical combat, not an academic seminar. Tweet accordingly." We fear that the spirit of the dark arena has now spread to the monograph — and that the tools and techniques that serve so well in one medium turn out to be handicaps in another.
Nonetheless, we take the book seriously as an intellectual challenge, which is why we feel compelled to respond. This poses a further issue. If Common Good Constitutionalism were more straightforwardly structured, it might be easier to lay out its argument, to explain where we disagree, and then to set out the evidence that might support one position against another. Instead, communicating a full sense of the book sometimes requires careful attention to its rhetorical strategies and direct criticism of what seems to us to be failures of scholarship. Noting such failures can sound ad hominem, particularly because you, the reader, have no way of assessing them, short of reading the book yourself and deciding whether we have been fair. If these constraints lead in places to an unusually sharp tone, we apologize for its necessity.
In any event, we proceed as follows. In Part I, we take Common Sense Good Constitutionalism on its own terms, arguing that the theory fails to support the book's hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. In Part II, we argue that its chief objections to originalism are unpersuasive and already answered in the literature it cites. In Part III, we attempt a sympathetic reconstruction of the book's arguments as contributions to originalist debates, though we find them underbaked as a matter of both history and jurisprudence. In Part IV, we discuss Vermeule's political aims and their relation to the book's cult following.
And the conclusion:
Common Good Constitutionalism is both an achievement and a disappointment. While Vermeule performs a real service in refocusing attention on the American natural-law tradition, his account of that tradition may mislead as much as it enlightens. And while his forceful writing will win him wide readership and some applause, it also keeps him from engaging carefully with alternative views or recognizing potentially shared ground. Opposing views are composed of "myths," "shibboleths," "chatter," "horror," and "panicky, bewildered outrage" (pp. 18, 34, 62, 67), while his own views are pugnaciously, though inconsistently, expressed. A rhetorical pose in which common good constitutionalism must always be victorious, its enemies always cringing and pitiful, lends itself more to political than to intellectual advance.
Some readers might not mind. They might favor common good constitutionalism for the outcomes it promises to license, or even just for the combative posture it lets them take. We have little to say to these readers: one doesn't need to read a book to lobby for preferred outcomes or to start fights online.
What Common Good Constitutionalism purports to add to the project is an intellectually rigorous foundation. If it had, it could have moved the scholarly ball forward, persuading some to share its views and obliging the rest to refine their own views in its light. Unfortunately, it too often lets other goals get in the way. So while we can't root for the book's success as a manifesto, movement, or call to arms, we wish it were better as a book.
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