A Jurisprudence of Hope

“A society based on the letter of the law and never reaching any higher fails to take advantage of the full range of human possibilities. The letter of the law is too cold and formal to have a beneficial influence on society. Whenever the tissue of life is woven of legalistic relationships, this creates an atmosphere of spiritual mediocrity that paralyzes man’s noblest impulses.” – Aleksandr Solzhenitsyn’s Commencement Address at Harvard University, June 8, 1978

In Common Good Constitutionalism, Professor Adrian Vermeule sets out on an ambitious project to inspire a new generation of attorneys, especially of younger attorneys and law students, to seek the common good and to expand the postliberal legal and political imagination. For decades, right wing attorneys have labored under the hegemonic stranglehold of originalism. Aspiring lawyers and even some judges and senators, however, have begun to question the conservative legal project and to turn to sources long considered heretical by the originalist conclave. To liberate these minds from the false binary between originalism and progressive constitutionalism and to show them a better way, Vermeule wrote this book.

Turning to the professor’s critique of originalism, Vermeule dispels the legal fiction that judges are apolitical figures engaging in an apolitical exercise. From the nomination of a judge, to her choice of interpretive method, and to her last decision, the whole enterprise is suffused with the political. No public official can escape commitment to at least some conception of political morality. Everyone seems to accept this except originalists. They vociferously deny this as a matter of form. The Federalist Society famously takes no “policy positions.” Originalist scholarship dances around matters of moral substance and political philosophy and instead focuses on esoteric language theory and exacting historical research. Originalist decisions invent standards that studiously avoid truth claims about human nature or what is good for it.[1] Instead of seeing jurisprudence as the objective science of according true justice, originalists see their work as a subdepartment of history or linguistics. The late Justice Scalia used to remark that the role of the judge was not to do justice and argued that St. Thomas Aquinas was simply wrong on this point. Ironically, in seeking to be completely impartial, originalist judges became impartial toward the very nature of law and the judicial function.

This stifling and strait-jacketed approach has come at a cost. In the moral void, progressives introduced their own corrupt and disordered principles into American law. From abolishing the concept of woman in Bostock to redefining marriage as a mere association between consenting adults for mutual satisfaction in Obergefell, the progressive wing of the court has done considerable damage to the nation’s moral and psychological health and unleashed waves of legal persecution onto religious traditionalists, including Muslims, Jews, Protestants, and Catholics. Young children are increasingly exposed to the cultural ramifications of those decisions. Vermeule pays special attention to Bostock and Obergefell for other reasons as well. Although progressive outcomes, Vermeule notes that prominent originalists authored or defended them. The thrust is that originalism is just as easily a vehicle for progressive outcomes as it is for ostensibly conservative ones due to its decidedly thin metaphysical account of law. Indeed, the most cited originalist scholar is a progressive. Vermeule relies on Dworkin’s famous level-of-generality argument to mount this attack. Namely, originalism lacks the inner theoretical resources to pinpoint the level of specificity or generality at which a given text should be read. Originalist theorists must refer, consciously or otherwise, to an extra-textual moral-pragmatic anchor to make these assessments.[2] In making this observation, Vermeule demonstrates that originalists are just as “living constitutionalist” as their progressive enemies.[3] 

Against these morally-drained or corrupted views, Vermeule tells us that jurisprudence is “the art of goodness and fairness” ordered to attaining the political common good. Judges, and all public officials, should consciously seek and instantiate this good within their respective spheres of competence and authority. Judges, in particular according to Vermeule, protect the integrity of the positive law by squaring it with the natural law or ius commune, the correct background principles of political morality. In so doing, judges generate parameters that allow coordinate public officials to seek the common good in ever more specified, yet rationally choice worthy, ways. The dereliction of this duty by progressive and originalist judges has impoverished and corrupted the American legal tradition. But this is no alien innovation, Vermeule tells us. By way of caselaw, he demonstrates that the classical legal tradition was the primary method for ascertaining legal meaning in American jurisprudence until about the mid-twentieth century. Most interestingly, Vermeule observes that founding generation attorneys used legal textbooks arranged according to classical models originating in the Roman Empire—showing that they had a legal mindset alien to the modern originalist. And contrary to gross caricatures, Vermeule does not license judges to engage in all-things-considered-moral decision-making—a slander repeatedly made against him.[4] He points out that judicial officers should attend to the meaning and context of a legal enactment to apply it wisely.

Some have jumped on this last point to argue that Vermeule is really a closet originalist. (One wonders then why they oppose him so.) Others have argued that, because originalists have always been applying some conception of political morality, originalism is indistinguishable from common good constitutionalism. These criticisms(?) fail to appreciate the great metaphysical chasm between originalism and common good constitutionalism. Originalists, in practice if not in theory, reject the relevance of natural law and instead appeal to some form of social convention as the foundation for all law. Classical lawyers, on the other hand, see the natural law as real law promulgated by God that judicial officers must apply and conform positive law with to perform their functions properly.[5] To evade this responsibility is for a judge to violate his oath to the Constitution and to the American people. Although some originalist critics have played down the differences between originalism and common good constitutionalism for rhetorical effect, their hostility to Vermeule’s thinking belies their claims. To me, these arguments amount to nothing more than defenses of status-quo originalism indistinguishable from the prevailing positivistic theories of originalism. “Natural law” is doing no work in these accounts except to exclude practical natural lawyers from the legal discourse.  

Turning to the latter half of the book, we see Vermeule’s prudential applications of classical legal theory to the political situation at hand.[6] Namely, the professor supports a strong federal executive making specifications of more generalized natural law precepts with a deferential judiciary reviewing for arbitrariness.[7] For example, he supports stronger executive and judicial promotion of environmental and economic justice and connects these positions to classical legal theory. Vermeule does not provide much in the way of substantiation here, but he admits at the outset that he’s providing merely a rough outline. His originalist critics, despite professing complete indifference to policy outcomes, seem to especially hate this part of the book. In a certain respect, I sympathize with the originalists on pragmatic rather than ideological grounds. The bureaucracies are dominated by progressive members of the professional managerial class. Undiscriminating judicial deference in these times will certainly not serve the nation’s moral health in the immediate term. However, I don’t think Vermeule is ignorant of this fact, and he has repeatedly emphasized that judges should review for arbitrariness and ensure compliance with the natural law, and that the federal government ought to cooperate with state governments in allocating responsibilities. With courageous and imaginative enough judges, these criteria would pose serious impediments to progressive overreaches. And had judges been actively employing a robust natural law jurisprudence in past decades and social conservatives not ceded the bureaucracies to their political enemies, it’s plausible that the right wing would currently favor a strong executive. In other words, “big government” isn’t the problem—unjust and irrational government is.

I think these critics also fail to pay attention to Vermeule’s thoughts on customary law and popular sovereignty and the manners in which they might limit state action or even modify the interpretation of positive law.[8] But in any case, until the administrative state is brought into general compliance with natural law directives and to ensure the integrity and common sense of the American legal system, I think more judicial interference than Vermeule might be comfortable with is warranted to defend the nation from executive and legislative action clearly meant to promote cultural progressivism and the interests of woke elites. And, given that progressive jurists fundamentally altered the nature of the judiciary and the other departments of government accepted this change through both executive advocacy and congressional inaction, such a judicial approach would certainly not be unwarranted or unprincipled. Political custom, as St. Thomas notes, has the force of law. Judges have been employing non-originalist, even activist, approaches for decades without serious pushback from the other branches of government or the American people. This might constitute a structural change in the American constitutional scheme that right wing legal practitioners continue to ignore at their peril.  Although this may not be an ideal arrangement (is any ever?), it is a politically necessary one until more favorable conditions develop.[9]              

Despite these concerns, the book presents a relevant and refreshingly realistic take on American law and will certainly expand the imaginative realm of the politically possible for anyone who reads it. Although Vermeule’s ideas may not have immediate purchase given originalism’s vast economic and sociological resources as well as rhetorical simplicity, and the virulence of the progressive legal academy, I believe that over time it will carve out its own space in the legal discourse like a steady water current eroding stone. In the end, the professor is not terribly concerned with whether his ideas will have immediate practical effect anyway. His goal is right thinking. As he says, “I think it is a category error for scholars to worry overmuch about such things . . . If we have a true account of law, what the great and the mighty make of it is up to them, and is mostly determined by the vagaries of history and politics rather than by anything a book may say.” For Vermeule, the truth is its own reward.

Daniel Whitehead clerks for the United States Court of Appeals for the Seventh Circuit. The views expressed here are the author’s and do not reflect those of his employer.  

[1] When it comes to religious liberty, for example, the Supreme Court asks whether the invoker sincerely holds the belief—not whether the belief is good or true. Justice Scalia: “It would doubtless be unconstitutional . . . to prohibit bowing down before a golden calf,” that is to say, pagan idol worship. In the wake of Roe’s expected overturning, Satanists will seek protections for ritual abortions by exploiting such weaknesses in our designedly truth-allergic religious liberty jurisprudence.

[2] Originalists must also assume a theory of language that the posited text does not explicitly provide for. The classical legal position assumes a realist account of language, whereas the originalist tends to adopt a nominalistic account. Nominalism, of course, is fatal to thinking correctly about reality.  

[3] Some originalists have critiqued the book’s brevity and lamented that Vermeule does not engage enough originalist scholarship to their satisfaction. I think they miss the point of this book. Anyone who’s read Vermeule should know that he considers originalism chimeric and debating the incorrigibly originalist a fool’s errand. Originalists and natural lawyers simply have theories of law at total variance, and at a certain point constructive discourse is no longer possible. Vermeule has written this book for those who have already intuited that there’s something not quite right with ideological originalism.

[4] This is an absurd claim given that Vermeule has repeatedly argued that judicial officers should pay great deference to administrative agencies on second order matters so long as they fall within the first order reasonable parameters of the classical legal tradition..

[5] Implicit, I think, in the originalist oath-keeping argument is an inherent anti-theism and rejection of natural law for the originalist does not see natural law as real law promulgated by God. See Romans 1:20. This probably explains why “natural law” originalists turn to “new natural law” scholar John Finnis for support—Finnis denied that belief in God was necessary for the good natural lawyer. Without a promulgator, natural law immediately loses its political relevance and status as law. I also believe that Finnis rejects the classical account of the common good as well. Granted that I’m correct, these positions deviate from the Thomistic and classical natural law tradition. For a better account of natural law, read Charles De Koninck.

[6] I emphasize that these are Vermeule’s own prudential applications because a debater’s trick has arisen whereby originalists conflate Vermeulianism (often in a pejorative sense without engaging the substance of his ideas) with natural law/common good constitutionalism. Although natural lawyers share the same jurisprudential-metaphysical outlook, they do not necessarily share the same opinions about the best course of action. Nonetheless, they do not speak past each other because they share the same framework and account of law—constructive discourse and disagreement are possible in this setting. 

[7] I strongly recommend reading Law and Leviathan and The System of the Constitution.

[8] To be fair to the critics, Vermeule does not discuss customary law in his book. However, a serious return to ius commune sources must involve study of the mos maiorum, the customary laws of the Romans. I have a pet theory that some cases identified as originalist are actually judges vindicating longstanding social or political customs (mos maiorum) of the American people against executive or legislative action lacking sufficient rational support for altering said customs. In more complicated ways, I think state governments protect these social customs as well. Unfortunately, rather than just outright say this, the judiciary and state governments usually justify their actions in positivistic or libertarian terms. There’s a better (natural law) way to do this.

[9] My approach, as opposed to Vermeule’s, might aptly be described as common good or natural law pragmatism. Again, this is not “living constitutionalism” for it appeals to a true account of legal principles.

Daniel Whitehead clerks for Judge Manion on the U.S. Court of Appeals for the Seventh Circuit. He previously clerked for Judge Joseph Toth on the U.S. Court of Appeals for Veterans Claims. Additionally, he was an appellate litigator in the appellate division of the U.S. Department of Veterans Affairs and also a civil rights analyst in the Conscience and Religious Freedom Division of the U.S. Department of Health and Human Services. Daniel graduated from Ave Maria School of Law and Ave Maria University with a degree in Classics and Literature. He is a Fellow of the Leonine Forum run by the Catholic Information Center.

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