Two Cheers for "the Common Good"

A reconsideration of Adrian Vermeule's "Common Good Constitutionalism"

MILAN, Italy—November 23: The three happy warriors of the Three Whisky Happy Hour yesterday found themselves at the Universita Cattolica de Sacro Cuore, where “Lucretia,” Professor of Law Filiberto Brozzetti, and Harvard Law’s Adrian Vermeule, author of the controversial book Common Good Constitutionalism, gathered before the law faculty and students for a spirited roundtable discussion of Vermeule’s audacious book, skillfully moderated by Prof. Allesandro Mangia of the law faculty at the university.

Vermeule’s compact book is controversial with nearly everyone because there is something in it for both left and right to like—and dislike. Part of his project is recovering what he calls the “classical legal tradition,” which he admits in several places is a euphemism of sorts for natural law. He is slightly coy about using the term very often in the book because he observes correctly that both the left and the “originalist” right are allergic to natural law. (For examples, see Lucretia’s answer to John Yoo in the third installment of our debate.)

This makes him a general ally in the long running debate playing out here on “Political Questions” between natural law and legal positivism. One reason Vermeule’s book is controversial among many conservatives is that he breaks the omerta among conservatives against criticizing “originalism” (it was great fun using “omerta” before an Italian audience), since “we’re all originalists now,” and originalism, in its various imprecise and contested forms, is nowadays providing the ground for halting and reversing decades of “living constitutionalism” of the New Deal-Warren Court era. Much of this originalism is incoherent, and if you gather five originalists (or originalist judges) in a room, and you will likely get five different versions or theories.

Vermeule notes that the natural law or classical law tradition is originalism rightly understood, but he thinks the term “originalism” is so degraded that it is beyond salvage. Instead he proposes replace originalism with a return to an explicit disposition toward “the common good,” which recalls directly Thomas Aquinas’s definition of natural law in part as “an ordinance of reason for the common good, made by one who has care for the community and is promulgated.” (“Promulgated” means essentially that natural law must be translated to or expressed in the positive law, but I digress.)

There’s an important subtext and difficulty here: the modern liberal democratic idea defines “common good” as the mere sum total of individual preferences, because the heart of the liberal idea is that the highest good is individual choice or supreme individual autonomy over any conception of the common good. Hence the contemporary obsession with choosing or even defining out of nothing your own special “identity.” My own phrase for this state of affairs is that we live in “the age of proprietary truth,” which is what is implied whenever you hear someone say “my truth is. . .” Can anyone imagine Isaac Newton saying, “My truth is that gravity makes the apple fall on my head, but hey—'your truth’ may be different, and maybe for you the apple falls up to the sky.” At the heart of today’s radical autonomy is a rejection of nature—including human nature.

Vermeule wishes to shake us up from the complacency or acceptance of this state of affairs, and revive the disposition to think in terms of a substantive common good, even though what constitutes the common good has been, and always will be, controversial, and why we argue about it endlessly. That does not mean there is no such thing as the common good; it merely means that it is the subject of constant debate, entailing constant adjustments and changes. This is called “politics,” in the older sense of the term, and is entirely healthy so long as the regime in which such arguments takes place is decent, which seems to be accomplished only in some kind of constitutional government. This was as true in Plato and Aristotle’s time as it is today, which is why constitutionalism may be said to have originated with Aristotle.

Vermeule insists that his thesis is not intended to be a new theory of judicial review (though he does provide some sketches of what he considers common good judicial reasoning, one of which directly disagrees with my own reading of Justice Harlan’s dissent in Lochner discussed in a previous installment here), and that achieving the common good is not the work of judges, but of all three branches of government. He also makes an important distinction between the Catholic principle of “subsidiarity” and federalism. (Subsidiarity is the view that that decisions should be made by the lowest or least centralized authority that is competent to do so.) As he puts it in the center of the book, “Common good constitutionalism is, of course, not merely the province of judges; it is the proper governing approach for all public officials.”

But Vermeule also says Common Good Constitutionalism is not a work of political theory, and in his remarks on the panel he reiterated the point by saying his inquiry is not directly connected to political philosophy or philosophy of law. To be sure, an inquiry that tried to include even a cursory discussion of relevant aspects of political philosophy, whether ancient or modern, and its connection to law would have required a much longer and more difficult book. 

But the necessity of confronting some basic aspects of classical political philosophy to any project of recovering an older and more principled understanding of the classical law tradition is inescapable. Early in the book Vermeule writes:

Of course a simple return to the classical legal tradition and its peculiar rules is neither desirable nor even possible.

This may be correct, but is worth of a lot more discussion. My counter-proposition is that the loss of dignity (as he calls it) of the classical legal tradition and the classical tradition in political philosophy are co-terminous, and the revival of either requires the revival of both.

But Vermeule’s declaration reminded me right away of Leo Strauss’s observation in his later preface to Spinoza’s Critique of Religion that “a return to pre-modern political philosophy is impossible.” Or as Harry Jaffa put it once in a long letter to Ernest Fortin of Boston College:

Aristotle’s polity is not possible in the modern world. Any attempt to insist upon the priority of the state (which has replaced the polis) to the individual would result (as it has resulted with both Nazis and Communists) in some form of totalitarianism. How then can Aristotle’s intention be fulfilled in a world in which classical political philosophy cannot be applied directly, or in its own terms?

I have argued, now and for a number of years, that if Aristotle had in the 17^th or 18^th centuries been commissioned to write the political book for modern constitutions, he would have written something very closely approximating, if not entirely identical with, Locke’s Second Treatise.

Now there’s a lot more involved in this argument, found at great length and depth in A New Birth of Freedom, which perhaps we’ll take up in further installments of our natural law series here. Lucretia offered a precis of the importance of Lockean social contract principles, which everyone neglects or derides today, but we weren’t able to follow up the matter completely because it takes more time than we had.

My main contribution to the panel concentrated on Vermeule’s defense of the administrative state. Early on in his book he states that one of his aims is to present “the administrative state in its best possible light.” This seems a recognition that this might prove a heavy lift. His purpose is to find a way for executive power to be a bulwark of the common good as much as the legislative and judicial branches can. “The administrative state can, when rightly ordered, provide a modern translation of the classical triptych of goods (peace, justice, and abundance adapted to include health, safety, and security). [Emphasis added.] He thinks that the administrative state can embody and implement long-standing classical legal principles, and that the president can provide effective control and direction to the whole apparatus, which will come as a surprise to every president since Nixon.

There is much in the rest of the book with which it is possible to embrace and cheer for, but here is a bright line impossible to cross. Vermeule fundamentally misunderstands the nature and character of the modern administrative state, and why it is inherently impossible for it to be “rightly ordered.”

Many of the arguments against the modern administrative state are arguments about bureaucracy (efficiency, competence, cost, path dependence, public choice self-interest, etc), and I actually agree with Vermeule’s impatience with those arguments alone. The core problem of the administrative state is that its core theory, as expressed by Woodrow Wilson most prominently, is precisely to remove the deliberation and decision from the realm of public debate and legislation, and seal it off from politics by privileging an expert class to manage matters. In other words, the administrative state is an obstacle to the common good, or at the very least the vast expansion of the modern administrative state actually degrades public deliberation and choice about the common good, and contributes to the growing lack of public trust in out government today. (As an aside, I’ve long thought it would be possible to have a reality TV show in which contestants, drawn especially from elite political science and law faculties, are challenged to name every single federal agency and bureau. No one could do it. Also, no sensible person would watch such a show, which would make paint-drying or pipe-smoking competitions look exciting by comparison.) A narrower critique is that the structure of our administrative state violates one of the core principles of the classical law tradition, namely that no man shall be a judge in his own cause. Most federal regulatory agencies violate this principle every day before breakfast.

At one point Vermeule draws support for his argument by referencing what he considers the defects of Roscoe Pound’s 1923 essay “The Growth of Administrative Justice,” before moving on to more modern critiques including Carl Schmitt and Ronald Dworkin.  I rather think a different and overlooked contemporary of Pound’s had a better and more accessible critique of where we were headed and what was wrong with it. In 1922, the then vice president of the United States, Calvin Coolidge (the last American president with a classical education, fluent on both Greek and Latin) delivered a speech before the American Bar Association entitled “The Limitations of the Law.” After noting that modern industrial society did indeed require more government involvement and active supervision—recall that as governor of Massachusetts Coolidge was known as something of a progressive—he goes on to argue against the centralization of authority and rule by an administrative state in the following way:

Here are these enormous obligations which the people found they themselves were imperfectly discharging. They therefore undertook to lay their burdens on the national government. Under this weight the former accuracy of administration breaks down. The government has not at its disposal a supply of ability, honesty and character, necessary for the solution of all these problems, or an executive capacity great enough for their perfect administration. Nor is it in the possession of a wisdom which enables it to take great enterprises and manage them with no ground for criticism. We cannot rid ourselves of the human element in our affairs by an act of legislation which places them under the jurisdiction of a public commission. . .

Under the attempt to perform the impossible there sets in a general disintegration. When legislation fails those who look upon it as a sovereign remedy simply cry out for more legislation. A sound and wise statesman ship which recognizes and attempts to abide by its limitations will undoubtedly find itself displaced by that type of public official who promises much, talks much, legislates much, expends much, but accomplishes little. The deliberate, sound judgment of the country is likely to find it has been superseded by a popular whim. The independence of the legislator is broken down. The enforcement of the law becomes uncertain. The courts fail in their function of speedy and accurate justice, their judgments are questioned and their independence is threatened.

There’s much more in Coolidge’s complete essay which I recommend to everyone, but it is possible to state its point in one sentence: The problem with the administrative state is that its reach exceeds our grasp. This is not fixable, though important reforms are both possible and necessary. But that’s for a future series.

So two cheers, not three, for the idea of reviving the common good as a touchstone of our constitutionalism.

P.S. It is possible that perhaps a revival of the classical law tradition as Vermeule understands it is starting to make a minor comeback in the courts, as I note in an article I wrote recently for Law & Liberty, “The Return of the Common Law?”