Constitutional scholar Adrian Vermeule’s new book, “Common Good Constitutionalism,” offers a fundamental critique of both leading approaches to the debate over constitutional law and interpretation. Although proponents on either side may not agree wholeheartedly with the main thesis, some may be intrigued by his bracing critiques of the other side’s approach to the law.
In 184 pages of closely argued text, Vermeule ’93, the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School, says that today’s two leading methods of constitutional interpretation — which he refers to as originalism and legal progressivism — have failed the nation and betrayed the founders’ true intent. To solve this problem, he urges a return to the founders’ vision of the law and what they hoped it would achieve, namely, a prosperous and well-ordered community as the precondition for the successful exercise of individual liberties.
In rejecting the two approaches to constitutional interpretation favored by modern jurists, Vermeule points to a third way of reading America’s founding charter, one he says is grounded in a classical Western legal tradition stretching back to the Old Testament and running through the Roman Empire and medieval Europe, and all the way up through the beginning of the 20th century, when it fell out of favor.
But first, Vermeule’s assessment of today’s two competing methods of constitutional interpretation. While the “two views are locked in what seems to be a kind of ongoing struggle,” he said in a recent interview, “they actually have a great deal in common.” Both traditions, he added, “fundamentally see law as positivist. That is, they see law as the command of some authorized lawmaker. They think that law need not have any reference to the flourishing of the community as such. And in this way, they both are radical departures from the mainstream Western legal tradition.”
Vermeule’s proposed solution — common good constitutionalism — would be a return to what he said is a classical view that “supposes that the law is ordered, purposed to promote the common good of the whole community, which is the flourishing of the political community as such. That is, that our goods as individuals can’t be enjoyed unless they are enjoyed as part of a broader, healthy, well-functioning political community.”
Vermeule believes that the contemporary fear that prioritizing the common good of the polity represents a threat to individual rights is wrongheaded. “A lot of moderns instinctively place in opposition the individual good to what they think of as the collective good,” he said. “And they think that a central problem of constitutionalism is to decide when the collective good should override the individual good. That is not how classical law sees it. The shared good of living in a flourishing community is itself a critical good for individuals, and, indeed, is perhaps their highest good.”
Vermuele cites “the classical idea that the health of the communities itself is good for individuals.”
Given his appreciation for ancient sources of law, it is perhaps not surprising that Vermeule invoked the words of the medieval philosopher and theologian Thomas Aquinas, himself citing an even more classical source: “The individual good is impossible without the common good of the family or state. Hence, Valerius Maximus says of the ancient Romans that ‘they would rather be poor in a rich empire than rich in the poor empire.’”
But after many years of testing different approaches to the law, how would a return to this classical legal tradition work today? Vermeule offers several examples.
For instance, he says the current doctrine of standing — under which plaintiffs must have suffered a personal injury in fact before being allowed to sue in federal court — would be turned on its head. “This is completely contrary to the traditional vision and concept of the common good,” he argued. “The modern law of standing tries to discourage people from bringing suits to promote public purposes or the public interest and tries to encourage them only to bring suits to represent private or selfish individual interests. And from my standpoint, that’s backward.”
For a model of how courts should apply common good constitutionalism, he says one need look no further than the 1926 case Village of Euclid v. Ambler Realty, in which the Supreme Court for the first time upheld “recognizably modern zoning laws.” Vermeule notes that the Court recognized these are precisely the kinds of ordinances necessary “to promote the common flourishing of communities, [because] it is impossible for each of us to enjoy our individual property in the right way unless it occurs within an orderly scheme of the communities’ arrangement.”
“The case also shows that, through the development of the administrative state, we are not overriding individual rights or interests for collective purposes,” he said. “We are trying to promote the flourishing of individuals by recognizing that they live in a community which has to flourish if they are to flourish.”
The ongoing COVID-19 pandemic offers another illustration of how prioritizing the common good of the community might have changed the way public health measures like masking were considered by courts. Citing Justice John Marshall Harlan’s 1905 decision in Jacobson v. Massachusetts authorizing state-imposed vaccination requirements, Vermuele said restrictions designed to stop the spread of disease “are very much in accordance with the classical perspective and with our law going right back to the beginning.”
“This is another case where you hear a lot of what I take to be a kind of invented tradition, arguing that [restrictions designed to stop the virus] are a betrayal of our founding liberty,” he said. “In fact, it’s quite the opposite — that they represent the founding perspective that the good health of individuals can only be enjoyed in a community in which infectious disease is not running rampant. So, I see it as another actual illustration of the classical idea that the health of the communities itself is good for individuals.”
Mask mandates and compulsory vaccinations are only two of the many hotly disputed modern ideas of individual rights Vermeule says are out of step with the Constitution and the legal traditions on which it is based. As his colleague Professor Jack Goldsmith wrote, “‘Common Good Constitutionalism’ is a bolt from the blue that challenges conservative and progressive constitutional law paradigms alike. It is destined to infuriate, and to reorient.”