Marching Orders

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.

A second surprise is Vermeule’s willingness to support his argument with a parallel drawn from the sphere of religion—a move not often made in today’s legal discourse. Vermeule invokes John Henry ­Newman’s defense of the development of Christian doctrine. Newman had faced the argument that some of the Catholic doctrines accepted in his day were nowhere to be found in the early history of the Church. They were suspect novelties. His response: This was in fact the sort of development that—in Vermeule’s paraphrase—“merely amplifies a legal principle’s internal plan of growth or changes its accidental expression under new circumstances.” So it should be, he concludes, with constitutional interpretation today. Circumstances change, but the law’s role in promoting the common good does not. New problems do not require, as the progressive constitutionalists think, that principles drawn from the past be treated as benighted and therefore as obstacles to be overcome. The author’s example of faithful development is Village of Euclid v. Ambler Realty (1926), a ruling that upheld the constitutionality of local zoning ordinances. The exercise of the power to regulate by zoning was constitutional because, as Vermeule writes, in the case that had come before the Supreme Court zoning was “consistent with the common good.” His example of the reverse, an unfaithful deviation from principle, is Obergefell v. Hodges.

A third example—also a surprising one—is the book’s invocation of current administrative law as a model for constitutional interpretation. Here Vermeule has caused me to reconsider the subject: I was impressed by Philip Hamburger’s recent book, Is Administrative Law Unlawful? (2014), which argues that we have put too much power into the hands of administrative agencies—agencies that, under the so-called ­Chevron deference principle, act without direct accountability to either voters or the legislature. This, for ­Hamburger, amounts to a recipe for the exercise of arbitrary power.

Not so, says Vermeule. Modern agencies have an inner morality that protects us all “from the vagaries and injustices of market forces.” Their role, he believes, is analogous to that of Roman praetors. The ­praetors stated general principles of law, to be applied in the context of individual cases that came before them. Thus they had a certain freedom, but one constrained by ­existing legal principles. Governmental agencies, which act with something like the same spirit, are “the living voice of our law.” Vermeule extends the point: Just as administrative agencies are charged with ­applying normative principles in specific ­circumstances, so judges must apply the law of nature in the particular cases that come before them, and always in service of the common good. However controversial it may appear, ­Vermeule’s argument here is impressive.

The fourth surprise is one I might have expected but did not. It was the harshness of debate in this area of the law. It is a no-holds-barred sort of contest. I thought it would be right to acknowledge that those who differed from the book’s author had made some contributions to the subject. The originalists, for example, might deserve some praise for attempting to rein in the creation of new and unprincipled rights. But no, their position is “an illusion—mere talk.” The same is held of the progressives. Their approach to traditional legal principles amounts to little more than “an ill-considered fit of rebellion.” I do realize, of course, that this harshness is not peculiar to this book or its author, and I grant that the controversy that is the book’s subject may be of greater importance than disagreements in my field of interest, property law. The reach of the rule against perpetuities does not stir up the same emotions as do the remnants of chattel slavery. Still, it does seem a shame that the argument about constitutionalism has become as shrill as it has.

Now for the historical parallels. In a welcome contrast with much contemporary legal writing, Vermeule takes note of some great thinkers from the past. Among others, he finds support in the works of Thomas Aquinas (1225–74), Bartolus of Saxoferrato (1313–57), and Giovanni Botero (1540–1617). In placing his argument in this extended timeline, he opens up the question of how “common good” approaches were once applied. In fact, many of today’s “hot button” issues were also raised in eras when the ius naturale (natural law) and the ius gentium (law recognized by civilized men) were seen as valid parts of law. Then, society’s governors did not hesitate to legislate morality. In fact they were required to do so, and this led them to draw on the ­resources of classical jurisprudence without hesitation. What results followed? Again, here are four ­examples.

The first, an obvious one, is ­slavery, the effects of which have outlasted its abolition by the Thirteenth Amendment to our ­Constitution. Some of the ­American abolitionists invoked natural law in their efforts to rid the land of slavery’s curse. But what ­accounted for slavery’s existence in the first place and for its long continued ­existence? The answer is given by Lord ­Mansfield in Somerset’s Case: “Nothing can be suffered to support it, but positive law.” In many nations, positive law ensured slavery as a fact of life. As Mary Sommar’s ­recent book, The Slaves of the Churches: A ­History (2019) ­demonstrates, even the ­medieval church did not stand against it. Monastic houses and other ecclesiastical corporations owned slaves. They did so without embarrassment. Slavery was one part of existing positive law, and nothing in the canon law itself made it ­illegal. The point is that for ­centuries, even in its role as a ­promoter of the common weal, natural law had not been enough to bring an end to slavery’s existence. Will we do better today on similar issues if we embrace ­common good constitutionalism? One hopes so. But who knows? There may be features of our lives that we accept, but that will one day seem as barbaric as slavery now does. On my list of candidates for ­abolition, violent movies would be near the top. They make no contribution to the common good. But I would be foolish to bet any money on their disappearance actually ­taking place. We can only guess what the future holds.

The second of today’s “hot button issues” with ties to the past is abortion. Its similarity to the exposure of infants, widely practiced in the ancient world and justified in Roman law by the strength of patria ­potestas, is obvious. True, the analogy is imperfect. An abandoned Roman infant had a chance of survival; an aborted fetus does not. There were also ameliorative aspects to the ancient law on this subject, as shown by John Boswell’s famous book, The Kindness of Strangers (1988). The same thing is true today, at least after a fashion. American law ­currently allows parents to deliver their ­unwanted infants to a nearby hospital, firehouse, police station, or other emergency medical ­facility so that they may be kept safe and ­adopted. No questions are asked. For ­assessing the role of the strength of the law of nature, however, even in the form of the common good of ­society articulated in this new book, the Roman precedent is unsettling. Vermeule’s footnote on the subject of ­abortion “leave[s] the issue for future work,” although he does go on to suggest that it would be right “to grant unborn children a ­positive or affirmative right to life.” The ­classical Roman jurists, respectful as they were of natural law, did not reach that conclusion. Positive law ­prevailed.

This is a historical example that might be relevant today. It was only a change of mind among educated men and women, seemingly influenced by the Christian religion and placed among imperial enactments, that gradually brought an end to the practice of infant exposure. Its disappearance from the formal law was not a result of the invocation of natural law, at least not directly. Natural law was a guide, not a benevolent dictator. A change in the positive law is what brought about exposure’s obsolescence. Something like this may be happening again today, although in the opposite direction. Our law does not recognize anything like the Roman law’s patria potestas, but it is evident that for many among us the availability of abortion set out in Roe v. Wade is an accepted part of our own positive law. That change—to permit abortion—has taken place in other parts of the civilized world as well. Even if Roe v. Wade is overruled, we will face the question of abortion’s place in our law.

The subject of voting rights has likewise become a matter of heated controversy in our land. The contest is between those who aim to secure all Americans’ right to vote and those who seek to guarantee the integrity of the voting process. What does common good constitutionalism tell us? Vermeule’s discussion of this subject is typically interesting. Democracy has never been required by natural law; that much is clear. It has never been more than a permissible choice. Thomas Aquinas held that monarchy was preferable. The choice having been made, however, the traditional approach holds that the system chosen should aim to avoid the abuse of power within its framework. “What touches all should be approved by all,” a principle found in the ­Justinianic Codex, pointed in the right direction. In most circumstances today, that cannot happen in a literal sense. There are too many of us. But within the system selected, there should be measures to check the abuses of power to which any system of government can lead. Monarchs may abuse the power they possess, but so may legislatures.

This fact has a connection with natural law and the ius gentium. Traditional ways of thinking held that society was first organized in order to protect the common interests of all. Once established, law should retain and be guided by that principle. How does gerrymandering fare in this way of thinking? Not very well, it seems. What about the filibuster? Somewhat better, because it can be a protection against abuses of power, though it may sometimes have the reverse effect. Vermeule’s book does not discuss these examples, but his endorsement of Euclid v. Ambler, mentioned above, indicates his likely response. Voting may promote the common good, but if it does the reverse, harming the overall good of the community, that would be a quite different matter.

The fourth question disputed today but with roots in the past—choice of gender—is one of which it is almost shocking to find any coverage in traditional legal thought. Shocking but true. Roman law dealt with it, and indeed more than one early modern treatise was devoted to the subject, under the heading of hermaphroditism. The rule adopted by the jurists was that when a person was born with both male and female reproductive organs, the more prevalent of the two determined the person’s status. No choice was given to the ­hermaphrodite. This answer was typical of the attitude of the classical jurists: They almost invariably chose an objective way of thinking about problems like this one. Gender was not a matter of an individual’s wishes. An objective classification was final. It is almost as if they had heeded the warning found in this book, whose author repeatedly urges us to “reject the relentless expansion of individualistic autonomy.” Better to have a certain rule rooted in probability than to leave things open to ­subjective ­desire.

When I had finished reading Common Good Constitutionalism, the four examples from comparative legal history just sketched occurred to me. Then I read the book again. The second reading cemented them in my mind, but it also left me with an admiration for the work and its author. Vermeule has made a serious contribution to some of the most pressing legal debates of our times, and he has written about them with clarity and skill. What success his presentation will have in this crowded and contentious field is hard to say. It is quite beyond my ability to predict what the future will bring. One thing I do know. After the Nuremberg trials, which put the seal on the outcome of the Second World War, there were predictions that a revival of natural law was likely to take place. Little in existing positive law supported the prosecutions, it was acknowledged. However, a widely accepted moral law justified the postwar ­sentences that were meted out. The revival never did take place—but things may be different today. Vermeule’s book has the merit of providing some of the details about how such a change might occur. It also includes some marching orders.

R. H. Helmholz is the Ruth Wyatt Rosenson Distinguished Service Professor of Law at the University of Chicago Law School.