Baude and Sachs:_Common Good Manifesto - reviewing Vermeule's Common Good Constitutionalism

William Baude & Stephen Sachs"_A Common Good Manifesto

Review of 

COMMON GOOD CONSTITUTIONALISM. By Adrian Vermeule. 

Medford, MA: Polity Press. 2022. Pp. viii, 270. $59.95. 

In Common Good Constitutionalism, Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism. That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to o'er an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into con(ict with theoretical rigor.

3.1 History 

Like other apparent challenges to originalism,134 Common Good Constitutionalism nonetheless takes pains to establish its own originalist pedigree, as “the fundamental matrix for the thinking of the whole founding generation” (p. 2). Certainly natural law ideas were circulating in some fashion at the time of the Founding and for a long while a/er. The book usefully incorporates the arguments of other scholars on this point, such as Professors Richard Helmholz 135 and Stuart Banner,136 and it will likely draw further attention to this history. And we certainly agree with Vermeule about the laws of the “revolution led by Justice Holmes around World War I” (p. 202 n.132), which sought to reduce unwritten law to “decision by judge-made precedent” (p. 203 n.136).137 

Unfortunately, Vermeule overplays this hand, exaggerating the centrality to American jurisprudence of his own vision of the common good. On Vermeule’s account, the Preamble’s reference to “the Blessings of Liberty” must be understood, not as aimed “to maximize individual choice,” but as “teleological and ordered to the ends of the good” (p. 39). In this respect it resembles “the classical tradition of ragion di stato, specifying the substantive aims and purposes of government” (p. 39). Given “the backdrop of the classical tradition,” the U.S. Constitution must be read “so as to promote,” not liberty in the colloquial sense, but “the classical trinity of peace, justice, and abundance” (p. 39).

 134. See, e.g., STEPHEN G. BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005). 135. RICHARD HELMHOLZ, NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE (2015) (cited pp. 44, 55, 56, 153, 185 n.2, 200–04 nn. 108, 110, 135, 142, 144, 148, 150). 136. STUART BANNER, THE DECLINE OF NATURAL LAW: HOW AMERICAN LAWYERS ONCE USED NATURAL LAW AND WHY THEY STOPPED (2021) (cited pp. 55, 203 n.137, 204 n.145). 137. The hostility to unwritten law of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny le/ an unwritten-law-shaped hole in modern legal landscape. This hole is sometimes patched by overreading written law, see Baude & Sachs, supra note 49, at 1085–93, or by the raw judicial revision of unwritten law, see Sachs, supra note 104, at 579–81—e+orts that carry precisely the sorts of dangers which Vermeule attributes to originalism and progressivism, respectively. The main text of Common Good Constitutionalism doesn’t address Erie or Swi" v. Tyson, 41 U.S. (16 Pet.) 1 (1842) (cited p. 202 n.132), despite their potential centrality to the project. Yet careful attention to the distinction our legal tradition draws between general and local law might shed light on Vermeule’s use of these concepts (pp. 8, 18), or even vice versa. See generally Swi", 41 U.S. at 18–19; Caleb Nelson, The Persistence of General Law, 106 COLUM. L. REV. 503 (2006); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 WM. & MARY L. REV. 921, 924–49 (2013); William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513 (1984).