Monday, April 18, 2022

Review: Vermeule's Common Good Constitutionalism by R. H. Helmholz | First Things



In a friendly review of Adrian Vermeule's Common Good Constitutionalism  University of Chicago property law professor and natural lawyer R.H. Helmholz at First Things attends to some of the challenges that Vermeule faces in his quest for influence.  I agree that his book is a challenge to both progressives and conservatives.  

But is Vermeule's idea of the common good anything more than a quest to persuade judges that theirs is a search for a moral basis of decisions?  Vermeule is an enemy of individualism, like his conservative Catholic confreres at The Josias.  That reactionary Catholic movement believes that "the temporal power must be subordinated to the spiritual power.  This view of politics is called “Catholic Integralism”.  The Josias declare they 
"resist the tides of liberalism, modernism, and ignorance of tradition which have, in the past century, so harmed the Church and tied her hands in the struggle to advance the social reign of Christ."

Edmund Waldstein, an Austrian monk and editor of  The Josias, embraces Leo Strauss's critique of the modern Enlightenment and the Hobbesian idea of the primacy of rights.  Waldstein explains in his essay Rights and the Common Good that  
"the consequence of this shift [from rights as derivative of duty]  is modern individualism. The ancients (meaning Plato, Aristotle, and Cicero, not, say, Lucretius) had been convinced that man can reach his telos only as part of a city, and that the common good of the city is therefore teleologically prior to the private good of the individual. Man’s duties towards the city and his fellow citizens are, as a consequence, prior to any claim of rights against them."

Helmholz notes several challenges for common good constitutionalism.  First he notes the limited power of the classical legal tradition which tolerated slavery, but now confronts abortion and homosexuality - both of which Vermeule deplores. 

Yet Vermeule, in his book with Cass Sunstein Law & Leviathanrejects the Calvinist `you're on your own' model.  Vermeule embraces the modern administrative state for a providing essential security for individuals.  Unlike John Roberts' hostility to the administrative state Vermeule embraces it.  "Our Executive-centered government" he says, "acts through the principles of administrative law's inner morality with a view to promoting solidarity and subsidiarity".

But central dilemmas in law and life remain unanswered by the classical tradition.

James Somerset's American master Charles Stewart brought his servant to England where Somerset  escaped but recaptured and held aboard ship. In 1772 the Law Lords denied Stewart the right to keep Somerset and transport him from England.  But Somerset was spared only because unlike the law of the colonies there was in England no "positive law" recognizing slavery in England.  Lord Mansfield's decision barred Somerset's transport against his will to Jamaica to be sold. 
 Colonial and early American lawyers, law-makers, and judges drew the plain lesson: where local (state) law so compels slavery is to be enforced despite its repugnance under natural law. The legacy of Somerset's case - funded by the great abolitionist Granville Sharp - is presented by William M. Wiecek in his Somerset: Lord Mansfield and the Legitimacy of Slavery in the Anglo American World, 42 U. Chicago L. Rev 86 (1974).  Another now classic account  is in Robert Cover's Justice Accused.  There is no plainer demonstration of the dominance of posited law over natural rights than Prigg v. Pennsylvania (1842) which declared state law obstructing recapture was preempted by the national Constitution's fugitive slave clause.  The Massachusetts Democrat did not take the course of his home state judges who had barred slavery in the 1781 Quock Walker case.  Security of human property was, said Story - as learned a jurist as any in America -  a compromise essential to the formation of the union. It must therefore be honored.

Since the classic tradition embraced by Vermeule did not overcome so grave and massive a system of oppression as chattel slavery, one can agree with Vermeule that common good constitutionalism is not necessarily a broad license to embrace natural rights over posited law.

But passion and interests may overcome uncertain boundaries.   For example Vermeule declares plainly that "the Supreme "Court's jurisprudence on free speech, abortion, sexual liberties and related matters will prove vulnerable under a regime of common good constitutionalism."  He labels as "notorious" the joint opinion in Planned Parenthood v. Casey.  He denounces as "abominable and beyond the realm of the acceptable forever after" its declaration that "each individual may `define one's own concept of existence or meaning, of the universe, and of the mystery of human life".

Chattel slavery was certainly "abominable and beyond the realm of the acceptable forever after" but the "classical" tradition Vermeule seeks to restore was inadequate to the task of recognizing and restraining that evil.  It is certainly fair to ask what principles would restrain and guide judges in the world Vermeule seeks.  

Vermeule emphasizes that the common good is an underlying principle that does not demand any particular form of government - not democracy, nor monarchy, nor judicial nor legislative supremacy.  The constraints on common good jurisprudence would therefore be political, not compelled by the law.

- GWC  April 18, 2022

Marching Orders by R. H. Helmholz | Articles | First Things May 2022 issue

Common Good Constitutionalism
by adrian vermeule
polity, 270 pages, $19.95

This is an ambitious and timely book. It confronts one of the most perplexing and unfortunate developments of our day: the rise of disputes about the correct way of interpreting the Constitution of the United States, and the consequent politicization of judicial appointments. True, disagreements among lawyers about the correct approach to constitutional interpretation are nothing new, and preference for judges drawn from the party of the nominator has long been a fact of life. Both of them are part of the price we pay for our experiment in democratic government. But these conflicts seem particularly dis­quieting today. On issues such as racial equality, abortion, voting rights, and even an individual’s choice of gender, the strongest sort of disagreement exists, and each side has ceased to pay attention to the other. What little discussion takes place has become a dialogue of the deaf. In Common Good Constitutionalism, Adrian Vermeule, who teaches at Harvard Law School and was once a colleague of mine at the University of Chicago, proposes a way out.

The answer, he argues, lies in the recovery of a classical approach to law—that is, one in which we acknowledge that law should aim at the promotion of society’s common good. For purposes of constitutional interpretation, this means that ­judges should openly recognize law’s inherent moral purposes. It requires the rejection of both originalism and progressivism as the principal approaches to interpreting the language found in our country’s highest law. For Vermeule, who appreciates law’s historical connection with classical jurisprudence and natural law, we must instead look to the past. We must recover what we have lost.

For me, an aging teacher of property law whose research has focused on legal history and whose recent attention has been taken up by tracing the history of natural law as it was applied in European, English, and American courts prior to the mid-nineteenth century, Vermeule’s book has an obvious and inevitable appeal. Even for such a relative stranger to today’s theories of constitutional interpretation, the book is of sustained interest. It contains several surprises, and opens up the reader’s historical imagination. What follows is a discussion of four examples of what is particularly notable in the book, followed by four historical additions to its subject.

The first surprise is ­Vermeule’s rejection of a commonly accepted account of legal history. As is generally agreed, our country’s Founding ­Fathers accepted the classical view of natural law, using it (in Vermeule’s words) “to interpret texts” and to “ground the authority of government in the pursuit of the common good.” American lawyers of subsequent generations took the same approach, as ­European lawyers had done for centuries. According to the standard account, however, in the second half of the nineteenth century American lawyers abandoned natural law. Thus began a move toward legal positivism, the subject of Stuart Banner’s recent book, The Decline of Natural Lawyers: How American Lawyers Once Used Natural Law and Why They Stopped (2021). The hostility to natural-law reasoning shown by jurists such as Oliver Wendell Holmes won out.

But according to Vermeule this account is incomplete, even incorrect. Although most American lawyers may have ceased to refer openly to the law of nature by 1900, they did not cease to apply its substance. Natural law thinking was simply “driven underground.” They may have abandoned the vocabulary of the natural law, but American judges continued to apply principles drawn from it. This usage lasted until the 1960s. Only then did they begin to “­deviate from classical principles into ever-­more stringent forms of liberal individualism.” In other words, the supposedly long-standing American divergence from natural-law reasoning is actually a recent development.

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