For the Balkinization symposium on Adrian Vermeule, Common Good Constitutionalism (Polity Press 2022).
Adrian Vermeule
I thank Jack Balkin for his good offices in organizing the symposium on Common Good Constitutionalism (CGC), and also thank the participants for their thoughts. In this brief contribution, I will offer some thoughts in reply. My discussion will by no means be comprehensive, with the understanding that silence as to any of the points the participants have raised is not necessarily to be taken as signifying either agreement or disagreement. Rather I will address some points that seem to me of the greatest general interest, and on which I have currently have something to contribute. Thus I pass over in silence the excellent contributions of Conor Casey and Daniel Bell, not because I disagree with them, but simply because in the former case I have no impartial standpoint from which to assess Casey’s suggestion that there is a deep continuity to my own work over time, and in the latter case because Bell’s effort to read the classical legal tradition in light of Confucian legal theory is a subject that I will have to study more deeply before I can say anything in a serious academic register — although I have expressed some informal preliminary reactions.
I begin with Sandy Levinson, whose contribution helpfully engaged the ideas from the inside, as it were, rather than assessing them from an external standpoint for conformity to a laundry list of progressive positions (a chronic hazard for the progressive mind, which is dominated by the practical as opposed to the speculative reason). I do have some quibbles with Levinson’s discussion. Levinson, for example, seems to suggest that natural law theory is either just coterminous with Catholic legal theory, or at least necessarily presupposes Catholicism. But this is both historically and theologically erroneous. Historically, natural law theory originates with the pagan Greeks, finds its way by complex pathways to Rome, and is already brought to a high pitch of sophistication by the Roman lawyers of the late Republic and early Empire, largely before Christianity became dominant. When Gaius, a famous jurist of the second century A.D., says (as later reported in Digest 7.5.2.1) that it is impossible to establish a usufruct in perishables even by positive decree, because “natural reason cannot be altered [even] by the authority of the Senate,” he is not speaking from specifically Catholic premises, but rather about the intrinsic nature of the relevant legal principles. Theologically, Catholicism itself holds that the natural law is written in the hearts of all men, and is in principle accessible to the universal natural reason common to all, even the unbaptized. Yet this is inessential to the main points of Levinson’s larger discussion.
Despite these minor missteps, Levinson understands and helpfully explains that the book has both a general and a particular part (CGC 11); it proposes a methodological framework for approaching questions of constitutional lawmaking and interpretation, a framework within which reasonable debates may be had as to how the principles of the classical legal tradition cash out. An example is a useful discussion between Jamie McGowan and Michael Foran about how exactly judicial review of rights works on classical premises. As Foran puts it, “[the book] relies on the common good as a justificatory lens of analysis, focusing on what the overarching point and purpose of constitutionalism should be.” A corollary, which the book explains at some length (beginning at CGC 3), is that the project is definitely not to take particular laws and customs from a point in time and apply them uncritically today. Some historically existing rules and customs were justifiable and others were unjust, according to the criteria of the classical approach itself, even taking into account that fit with extant legal materials is an aspect of justification. Rather the methodological project is to translate and adapt the principles of the classical legal ontology into our world and to elicit the justificatory structure they imply. Linda McClain misses this distinction, which leaves me unable to say anything about her contribution.
That the book argues for, or more precisely recalls, the classical structure of justification explains Levinson’s observation that it proposes a master “standard” or principle for constitutional government rather than a congeries of rules. Putting aside the constraints provided by the duty to avoid intrinsic evils, this is correct, but it is also itself a major point or feature of the classical tradition: subject to those and other constraints the book outlines, the theory does not even purport to specify the particular institutional rules of any given polity, but leaves those to determination within that polity - first at the level of constitutional law (written and unwritten), and then at successively more specific levels of legislation, administrative action, and judicial application to particular cases. I do go on to offer my own interpretations of the specific determinations that have come to characterize the American constitutional order, both in its written and unwritten aspects, but these are (as I said at CGC 12) detachable from the book’s general methodological theses; one can subscribe to the latter while agreeing, or contesting, the analyses of American particulars.
The methodological generality of the classical approach also explains my rather puzzled reaction to the contributions of Balkin and Stephen Griffin, whose main effort is to reduce the American instantiation of the classical framework to the civic republican tradition. Balkin seems to think that a master concern for the common good of the res publica is in some sense uniquely civic republican. In fact it was and is the common property of all participants in the classical legal tradition, whether before or after the flowering of civic republicanism in the 15th and 16th centuries, and whether they were (in the conventional modern sense) republicans, or instead monarchists, or, like many of the leading lawyers of the Roman and continental ius commune, imperialists. As the comparativist Elisabeth Zoller put it, citing the 3d century A.D. imperial lawyer UIpian, “Public law, in the sense first defined by the Romans, is the law of res publica, literally the public thing, that is, the public interest or common good.…The content of the res publica in Rome was well articulated in the opening statement to the great compilation of Roman laws that form the Digest [of the Emperor Justinian I]: ‘Public law is that which has reference to the administration of the Roman commonwealth; private law is that which concerns the interests of individuals; for there are some things which are useful to the public, and others which are of benefit to private persons’” [publicum ius est quod ad statum rei Romanae spectat, privatum quod ad singulorum utilitatem: sunt enim quaedam publice utilia, quaedam privatim]. Griffin, if I am reading him correctly, rather oddly assumes that the common good is exclusively a concept of high-level political morality, rather than a legal and constitutional concept. In fact it was always the latter first and foremost, and is so treated in the book; the very office of the Roman praetor was linked to and justified by his legal mandate to promote the bonum commune (common good).
So too, the lawyers of the late medieval ius commune in the 12th to 15th centuries, both before and after the advent of civic republicanism as usually defined, engaged in endless debates over the legal relationships among empire, monarchies like that of France, and the paradigmatic republican city-states of Italy and elsewhere. Some took one view, some another. But they engaged in these debates within a larger, longstanding framework and vocabulary of jurisprudential concepts, in which the legal principle that the law of the res publica should serve the communis utilitatis (common benefit) or bonum commune was shared by all parties. The basic legal ontology of the classical tradition was set long before, and independently of, the civic republicanism of the Renaissance and early modernity that influenced (some of) the framers.
In other words, Balkin has made a kind of category error: the classical legal tradition and civic republicanism occupy different levels in the hierarchy of relevant concepts. The classical legal tradition offers an ontology of legal norms, including and subsuming both the positive written law (lex) and background principles of legality (ius), not only the the civil law but also the natural law and law of nations. (And of course divine law, which I do not discuss in any detail, confining myself to the temporal ends of the civil community. Pace a suggestion by Richard Primus, the point of this, as explained at CGC 29, is not at all to bracket the question of ultimate ends for the sake of civil peace and out of respect for comprehensive disagreements, but rather on grounds of the scholarly division of labor, in order to respect the limits of my own competence as a civil lawyer rather than a canon lawyer or theologian). Although the classical tradition incorporates a subset of political morality within law, namely the subset bearing on the virtues of general justice and regnative prudence, of which the common good is the object, the classical legal ontology is compatible with a wide range of broader commitments at the higher level of political morality and political theory tout court. To the extent that the framers were classical lawyers, they might also be civic republicans, but were not the latter because they were the former, nor the former because they were the latter. They participated in the classical legal tradition qua lawyers drawing upon the common fund of jurisprudential concepts available in their time, the mainstream Western legal ontology, which could be and was used by lawyers with all sorts of higher-level commitments of political morality.
If that ontology was agnostic on some dimensions, it was not at all so on others. What is clear, for example, is that the framers’ legal ontology was simply not that of the modern positivist, and it is a wild distortion of their public understandings and arguments to read them as though they were modern positivists. This point explains my reaction to the thoughtful contribution of Richard Primus, who correctly says that at the stage of lawmaking, as well as that of legal interpretation, not just any legislation (or constitutional lawmaking) is compatible with the classical conception of the common good as the proper and natural end of constitutional government. Legislation rightly understood represents a determination of background principles of the natural law, ordered to the common good. Conversely, legislation aiming, for example, to maximize the freedom of individuals from all unchosen constraints, including the constraints of political and social obligation, familial relationships and perhaps even of the human body itself, would on the classical view fail to make law in the fullest sense, at least insofar as it is ordered solely to the private good of individuals rather than the public good of the community. Such legislation would represent a kind of violent pseudo-law, a perversion of law, as Aquinas puts it - although as Aquinas also notes, the common good may require that pseudo-law must be obeyed anyway, if the harms of disobedience would be greater than the benefits. Furthermore, there are separate institutional questions, which different polities may answer differently, about which actors in the legal system are authorized to identify pseudo-law, and what if anything they are authorized to do about it.
My difference with Primus, if we have one, is that I do not think that invocation of the non-positivist category of pseudo-law is confined to self-identified classical lawyers, by any means. It is just that classical lawyers are uniquely transparent about it and uniquely willing to explain how the category follows from the other parts of their theory. When Professor Neil Siegel and Dalia Lithwick write that Dobbs v. Jackson is a “lawless” decision, it irresistibly brings to mind the natural lawyer’s shorthand that “an unjust law is no law at all.” The progressive lawyers who dominate the American legal academy and commentariat have their conceptions of ius and of higher law just as much as natural lawyers do, when push comes to shove. It is at best unclear that there are any consistent positivists on the American legal scene, and even whether there could be any. As the book argues, positivism is essentially illusory, not only for the jurisprudential reason that considerations of legal justice inevitably become necessary both to make and to interpret positive law, but also because positivism is ultimately an academic theory in the pejorative sense, one that is immediately discarded when real stakes emerge. The only jurisprudential question, in the end, is whose conception of ius is correct, and the only political question is which conception will prevail.
Let me end with another important point raised by Levinson, which deserves more detailed discussion elsewhere: the issue of “nationalist parochialism.” Levinson correctly discerns that I am not a “nationalist,” in the sense that I believe (and the book argues, following the tradition) that the public authority of particular national states is founded on the ius gentium, a transnational common enterprise developed by and among recognizably lawful constitutional polities. As the Digest (1.1.5) famously put it, “as a consequence of this law of nations, wars were introduced, nations differentiated, kingdoms founded, [and] territories distinguished” [ex hoc iure gentium introducta bella, discrete gentes, regna condita, dominia distincta]. This classical conception is explicit in our law as late as the Curtiss-Wright case in 1936, in which our Supreme Court, finding “the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations,” held that the the external sovereignty of the United States “did not depend upon the affirmative grants of the Constitution” and that “[t]he Union existed before the Constitution.” Although in limited circumstances, nationalism can serve as a useful second-best and temporary expedient for resisting the impositions of a larger liberal order, such as that of the current European Union, if nationalism is taken as a first-best master principle of the constitutional order, it is a betrayal rather than an application of the classical tradition. In their modern incarnations in the 19th century, nationalism and liberalism were born twins, and often became the incestuous parents of legal positivism.
I would add, however, that the main purveyors of nationalist parochialism, at least on the American legal scene, are not the figures that Levinson mentions. Rather nationalist parochialism appears in a particularly virulent form in American originalism and the conservative legal movement that surrounds it. At panel after panel run by the Federalist Society, one can actually hear legal scholars claim with a straight face that originalism is the only way to do law qua law — a view whose startling implication is that no one was doing law in the Western legal tradition until roughly yesterday, and that throughout vast stretches of Europe, Latin America and Asia, “from China to Peru,” no law is done today. This puts mere parochialism to shame. Likewise, reputable American lawyers can actually be heard to claim that the United States’ constitutional oath entails originalism, ignoring (or perhaps simply unaware) that the world is full of constitutional systems that require very similar oaths, yet that also utterly eschew originalism in anything like its American sense. As a broad generalization, legal systems in Europe, Latin America, and other parts of the world influenced by the classical tradition retain a lively sense of participating in a larger transnational legal enterprise, to which the conservative legal movement in the United States — largely for reasons involving the unique historical and intellectual position of the American empire and its elites after World War II — is unfortunately oblivious.
Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School. You can reach him by e-mail at adrian.vermeule@icloud.com.
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