Sotirios Barber is Professor of Political Science at the University of Notre Dame. Stephen Macedo is the Laurance S. Rockefeller Professor of Politics at Princeton University. James E. Fleming is The Honorable Paul J. Liacos Professor of Law at Boston University School of Law.
Public trust in the U.S. government has declined steadily over the last sixty years, from 73% in 1958 to 17% in 2018 (Pew 12/9/20). Public support for the U.S. Constitution has remained higher. When support for the government dipped to an all-time low of 15% in 2010, support for the Constitution stood at 74%. But the gap has narrowed. From 2010 to 2017 support for the Constitution fell from 74% to around 50%—a drop of 24 points in seven years (AP/NCC 8/12; Rasmussen 2017). These figures suggest that if Americans continue to believe that their government isn’t working, they’ll eventually believe that their constitution isn’t working.
The prospect of constitutional failure has provoked numerous calls for constitutional reform, including a June 2020 report of the American Academy of Arts and Sciences, the New York Times editorial Board (NYT, 4/19/20), Sanford Levinson’s Our Undemocratic Constitution (2006), and Larry Sabato’s A More Perfect Constitution (2007). This literature concentrates on reforming institutions (e.g., the electoral college and the tenures of office holders, including federal judges). Writers tend to assume that a better constitution would be a more democratic constitution and that a constitution’s chief functions are aggregating popular preferences and securing individual rights. Yet one recent writer departs dramatically from this norm; we refer to Adrian Vermeule (“Beyond Originalism,” The Atlantic, 4/2/20).
Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of strengthening a constitutionalism that aggregates popular preferences and secures negative liberties, Vermeule urges a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. Vermeule calls his constitutionalism a “common good constitutionalism.” This constitutionalism establishes a government primarily to do good things for people. Pursuing what it sees as real goods, not just apparent goods, Vermeule’s constitutionalism assumes objective standards of political morality. It envisions an active government, including a strong president, a strong civil service, and judges exercising reasoned judgment about which results would contribute to the general welfare, correctly understood, not necessarily as understood either by the American founders or the courts. Above all, Vermeule’s constitutionalism would raise Americans above their unreflective preferences and self-indulgent inclinations. A few writers, mostly Catholics, applauded Vermeule. But most of the reaction has been critical. Writers from the American left and the American right have pelted Vermeule with charges of abandoning the traditions of liberal constitutionalism and the rule of law.
Vermeule has admitted some of these charges, as we’ll see. Yet Vermeule’s constitutionalism is a species of positive constitutionalism, and positive constitutionalism is neither new nor inconsistent with American traditions. Both the Declaration of Independence and the Constitution’s preamble assume a government dedicated chiefly to public purposes. A pro-government ends-orientation pervades the Federalist Papers. Representatives of a common-good constitutionalism include Alexander Hamilton, John Marshall, Abraham Lincoln, and Franklin Roosevelt. Post-war scholars in the positive tradition include Martin Diamond, Herbert Storing, Robert Faulkner, Frank Michelman, Michael S. Moore, Walter Murphy, Lawrence Sager, Cass Sunstein, Stephen Holmes, Jeffrey Tulis, and the authors of this comment. Label it a common-good constitutionalism, a positive constitutionalism, or an ends-oriented constitutionalism, this is the only constitutionalism that can make sense of the American Founding as a rational act, for no rational agent would establish a government de novo for the chief purpose of restraining its operations. When the American story is told, power wielded for the common good, and therewith a common-good constitutionalism, will be the only constitutionalism that had a chance against challenges like climate change, rolling pandemics, economic injustice, racial and gender injustice, uncontrolled technological change, advancing oligarchy, and recrudescing white Christian nationalism in America.
By moving the focus of constitutional thinking from negative liberties to positive ends (including the economic and cultural conditions that foster respect for some negative liberties), a positive constitutionalism would move the focus of constitutional thought from the “constitutional law” of academic lawyers to the “constitutional studies” of political science and its philosophic, historical, and behavioral branches. We can see this in the questions that a positive constitutionalism would raise. They include:
- The nature of liberty and whether negative liberty makes sense or made sense as an end of government either to present-day thinkers or to authorities from Locke to Rawls. (Vermeule would add the name of Pope Leo XIII.)
- Whether the American constitutional text represents a constitutionalism of negative liberties secured through litigation more than a constitutionalism of positive benefits pursued through legislation and sound administration. (Vermeule would say no.)
- The basic institutional relationships of a positive constitutionalism. (Vermeule argues for presidential government, judicial deference, national supremacy, and the priority of governmental powers over the constitutional rights of individuals.)
- The principal methods and institutions of constitutional maintenance (checks-and-balances? constitutional interpretation? education for citizenship? periodic constitutional conventions?).
- The ends of a positive constitution for a large republic—its organic policy commitments, past and future: security? growth? equal opportunity? a competitive market? the soul’s salvation (Vermeule)?
- Needed reforms and their prospects regarding, e.g., the electoral college, partisan gerrymandering, the Senate’s composition, and the federal courts.
A question conspicuously missing from this list is the proper approach to constitutional interpretation in hard cases. The answer to this question has been clear for a long time, thanks to Ronald Dworkin and Michael S. Moore, and Vermeule does constitutional thought a service by acknowledging a Dworkinian approach and treating “originalism” and other claims to avoid moral judgment as mistakes that border on the “fraudulent” (his term; Atlantic 4/2/2020). Constitutional theory may gain something by explaining how these mistakes have survived as long as they have, but this is a problem for intellectual historians, and we leave it aside.
The Atlantic’s publication of Vermeule’s article has benefitted constitutional thought and, indeed, the country. Respondents to the article include Richard Epstein, Randy Barnett, James Ceaser, Garrett Epps, Hadley Arkes, Suzannah Black, and Eric Levitz. Attention from sources of this caliber attests the challenging quality of Vermeule’s work and revives a badly needed debate. We would continue that debate here by revisiting the issues listed above. But Vermeule reopens the debate in a manner that disadvantages positive constitutionalism. Though Vermeule says much of crucial importance about the U.S. Constitution, he speaks as an outsider, not as one who accepts the Constitution’s moral legitimacy. When Dworkin and others, like your authors, proposed a moral reading of the Constitution, they did so in fidelity to the Constitution. Vermeule’s intention is quite different. He proposes a moral reading to subvert the Constitution, and he does so openly. He seeks constitutional change, change at the Constitution’s fundaments, not change within the fundaments.
Vermeule has collected all of his writings on common-good constitutionalism and posted them on Ius & Iustitium, a legal theory blog. These posts, which include Vermeule’s Atlantic article, reveal a more complete picture of his position. That Vermeule would post his views on Ius & Iustitium is itself revealing. Ius & Iustitium is a blog of The Josias, a self-described “manual” of “Catholic Integralism” which seeks “to articulate an authentically Catholic political stance” from which to “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.” Catholic Integralism holds that politics is a science that orders individual human persons to their proper ends, that “man has both a temporal end and an eternal end,” and that “since man’s temporal end is subordinated to his eternal end, the temporal power must be subordinated to the spiritual power.” (http://thejosias.com/about/ accessed 12/7/20).
In a post on Ius & Iustitium, Vermeule mocks the negative constitutionalist’s concern with “the abuse of [governmental] power” by listing acts and ommissions that he thinks ought to count as abuses of power. These include, quite properly, the manner in which liberal governments enable (even suborns) abuses of private power, like the way “common-law rights of property, tort and contract” (in tax-supported civil courts) enable corporations “to engage in costly litigation and lobbying.” Then Vermeule gets to the heart of the matter. The “worst [abuse] of all,” he says, is “the very grave abuse of state power identified by a defender of true liberty.” He then quotes from this “defender of true liberty”:
“Those who are in authority owe it to the commonwealth not only to provide for its external well-being and the conveniences of life, but still more to consult the welfare of men’s souls in the wisdom of their legislation. But, for the increase of such benefits, nothing more suitable can be conceived than the laws which have God for their author; and, therefore, they who in their government of the State take no account of these laws abuse political power by causing it to deviate from its proper end and from what nature itself prescribes.’”
(https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/abuses-of-power.html, accessed 12/7/20).
The quoted passage comes from par. 18 of Libertas, an encyclical of Pope Leo XIII, on the nature of human liberty, dated June 1888. Elsewhere in par. 18, Pope Leo calls “the separation between Church and State” a “fatal theory.” In par. 21, Pope Leo proclaims that “Justice therefore forbids, and reason itself forbids, the State to be godless; or to adopt a line of action which would end in godlessness—namely, to treat the various religions (as they call them) alike, and to bestow upon them promiscuously equal rights and privileges. Since, then, the profession of one religion is necessary in the State, that religion must be professed which alone is true, and which can be recognized without difficulty, especially in Catholic States, because the marks of truth are, as it were, engraved upon it. This religion, therefore, the rulers of the State must preserve and protect, if they would provide—as they should do—with prudence and usefulness for the good of the community.” And in par. 23 of Libertas, Pope Leo says of the “liberty of speech, and liberty of the press” that “there can be no such right as this, if it be not used in moderation, and if it pass beyond the bounds and end of all true liberty . . . [for] it is absurd to suppose that nature has accorded indifferently to truth and falsehood, to justice and injustice. Men have a right freely and prudently to propagate throughout the State what things soever are true and honorable, so that as many as possible may possess them; but lying opinions, than which no mental plague is greater, and vices which corrupt the heart and moral life should be diligently repressed by public authority, lest they insidiously work the ruin of the State.”
http://www.vatican.va/content/leo-xiii/en/encyclicals/documents/hf_l-xiii_enc_20061888_libertas.html (accessed 12/7/20)
The views of Pope Leo and The Josias are hardly self-refuting. They are worth discussing. Who can have lived through the era of Donald Trump, Fox News, Newsmax, OANN, and Parler without questioning the theory that an unrestrained “marketplace of ideas” ensures the health, rather than the rot or even death, of popular government? It’s worth asking whether equal freedom for, and the equality of, all faiths and no faith in the eyes of the state diminish every religion’s claim to truth, as Pope Leo held. It’s worth asking whether popular morality may well depend on belief in the soul’s immortality and fear of punishment (for successful tax cheats, child abusers, NRA executives, etc.) in some afterlife. The most secular rationalist who would serve the common good has more than ample reason to take the views of Pope Leo and The Josias seriously. We note their views not to embrace or deny them, but to clarify the nature of Vermeule’s constitutionalism (and to raise the question to what extent he wishes to incorporate them into his common good constitutionalism).
Conclusive evidence of what Vermeule is about lies in his review of Patrick Deneen’s Why Liberalism Failed. Vermeule applauds Deneen’s account of liberalism’s “slow-motion collapse” but decries Deneen’s remedy: retreat of nonliberals into Tocqueville-style small communities that serve their members’ economic, cultural, and spiritual needs – communities that are nonliberal without threatening the broader “liberal frame” in which they exist. Vermeule rejects Deneen’s remedy as a lapse into the liberalism that Deneen condemns. Vermeule argues that Deneen would leave his nonliberal communities to the sufferance of a crusading liberal vanguard that possessed greater material and ideological resources. Vermeule wouldn’t decentralize, therefore; he’d centralize. He would go for the top, though he would go through the trenches, rather than charge over the top. He would “bring[ ] about the birth of an entirely new regime, from within the old,” by having true-believing antiliberals occupy its courts and bureaucracies (attention Amy Coney Barrett) and “nudge” the country in the right direction. This paternalistic nudging would continue until liberalism “‘is rooted out to the last fiber, the place where it grew being seared as with a hot iron.’” (https://americanaffairsjournal.org/2018/02/integration-from-within/ accessed 12/7/2020); the internal quote is from James Fitzjames Stephen, Liberty, Equality, Fraternity, ed. Stuart D. Warner (Indianapolis: Liberty Fund, 1993) (originally published 1873)).
Vermeule holds that American judges can do their part in this searing-out thanks to “the majestic generalities and ambiguities of the written Constitution.” But we won’t pause to ask whether nudging is the word for a searing rooting-out or whether constitutional provisions are sufficiently majestic, general, or ambiguous to accommodate Pope Leo’s insights into true liberty. For it’s clear to us that Vermeule’s real interest is constitution making, not constitutional maintenance. He’s less interested in constitutional interpretation than constitutional change. He would be a founder, not a judge. We say this not to criticize, but to clarify, for at this perilous point in American history, we could use a few founders. We do ask one question with critical intent, however: Should students persuaded to Vermeule’s political theology cross their fingers when swearing fidelity to the U.S. Constitution?
In any case, Vermeule has complicated the task of positive constitutionalists. Before he appeared, they could have argued that the negative constitutionalism of William Rehnquist and John Roberts had crippled the national government’s ability to serve the common good and that the nation should return to the positive constitutionalism of Alexander Hamilton and the New Deal. More is needed now, however, thanks to Vermeule. Before positive constitutionalists can make their affirmative case now, they must show that they create no more opening to rule by Catholic orthodoxy than to any other revolution. That showing might begin with an argument that Vermeule may appreciate: God, we’re told, created humankind. If so, God made humans to think for themselves, and they seem unable to do otherwise. Creatures so made could not submit to Vermeule’s constitution.
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