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A Post-Originalism Common Good
Jesse Merriam
The common good legal movement avoids the hard work of making constitutionalism function in the polity we actually inhabit.
This essay was originally published on August 10, 2022 in Law & Liberty.
One of the most hotly contested topics in American political and legal theory is the nascent common good constitutionalism movement, led by Adrian Vermeule. Has a movement ever done so little to cause so much controversy?
In response to Vermeule's 2020 Atlantic article, "Beyond Originalism," the first formal expression of the movement, many pundits and scholars accused Vermeule of pushing for totalitarianism, theocracy, and even fascism. These charges have only intensified with the publication of Vermeule's book, Common Good Constitutionalism, which is, to date, the most developed work on the direction of common good constitutionalism.
James Stoner's essay must be understood in the context of this controversy. Although Stoner has written an excellent piece, he continues the pattern of analyzing common good constitutionalism through the prism of Vermeule's controversial public persona, thus ignoring the complexities of how common good constitutionalism could operate in 21st century America.
My response essay will seek to broaden the conversation by focusing on three issues that Stoner's essay neglects: (1) how common good constitutionalism should be understood as part of a larger political movement, (2) how the controversy surrounding common good constitutionalism yields insight into the moral asymmetry of our political discourse, and (3) how common good constitutionalism, at least as it has been developed thus far, is vulnerable to the same problems that have plagued legal conservatism as a socio-legal movement.
Common Good Constitutionalism as a Response to 2016
As a matter of historical lineage, common good constitutionalism goes well beyond our current political moment. As Stoner notes, "[i]n The Federalist, the common good or public good is ubiquitous." And as Vermeule, the target of Stoner's essay, emphasizes, common good constitutionalism can be traced beyond the Founding, all the way back to ancient Rome. For Vermeule, the common good is ubiquitous in The Federalist because the American Founding was merely an extension of the English common law tradition, which was merely an extension of the classical legal tradition.
Stoner does not object to this genealogy, but he argues that American constitutionalism is distinct in its protection of individual liberties and its system of disaggregated governance. He likewise claims that Vermeule understates the role of individual liberties in the classical legal tradition. For Stoner, "the common law's concern for individual rights belongs to the classical tradition, not its liberal reinvention."
This has been the frame in which the debate has been engaged: Whereas the common gooders argue that American constitutionalism has betrayed its classical roots by placing too much emphasis on individual rights, their critics argue that the common gooders have misrepresented the classical legal tradition by placing too little emphasis on individual rights.
This framing obscures two significant questions: Why we are talking about common good constitutionalism now? And why has this emerged as part of the legal right, even though it is in many ways a better fit, at least as a methodological matter, with the current legal left?
The genesis of common good constitutionalism, as a socio-legal movement, lies neither in ancient Rome nor in the American Founding, but – and I say this only somewhat facetiously – in Donald J. Trump. The truth is that no one talked about common good constitutionalism, or any sort of right-wing critique of originalism, until the populist uprising of 2016. The frustration expressed in that election generated a renewed interest in the meaning of American conservatism, as evidenced in the recent spate of scholarship and public commentary on the subject. In reflecting on the conservative movement and its commitments, many conservative scholars and pundits have started to question whether various positions associated with the Republican Party have proven effective in conserving the American way of life, and this has led to shifting positions on such diverse matters as globalization, social media censorship, and immigration.
The legal conservative movement has generally operated in concert with the broader conservative movement and Republican Party politics, so it is not a surprise that the same sort of questioning has migrated to the world of judicial politics and constitutional law.
Two events in particular have shaped how this has played out within the legal conservative movement. The first arose just weeks before the 2016 election, when many of the nation's leading legal conservatives joined a statement, Originalists Against Trump, explaining how, as originalists, they opposed the Republican nominee. This contradistinction between originalism and Trumpism led some to wonder: If originalists were against Trump, and Trump represented the new direction of conservatism, was originalism, at least as articulated by its leading practitioners, hindering the future of conservatism?
Then, in the last year of President Trump's presidency, the Supreme Court decided Bostock v. Clayton County (2020), the second significant moment in the path toward common good constitutionalism. The Bostock decision, which extended Title VII's ban on sex discrimination to include sexual orientation discrimination, drew a parade of criticism, and unlike the criticism that followed Originalists Against Trump, the criticism that followed Bostock was more normative in nature. According to these critics, Justice Gorsuch's textualist opinion – by reading "sex" in the way that we use the term now, divorced from the historical context in which it was used when the Civil Rights Act was passed – revealed the defects in a purely linguistic mode of interpretation. These critics urged for a form of constitutional and statutory interpretation that incorporates substantive moral values.
This critique came from several directions. Josh Hammer, who had been one of the Originalists Against Trump signatories, wrote in favor of a "common good originalism," an approach to originalism that draws from natural law as well as from Federalist Party figures like Alexander Hamilton and Chief Justice Marshall. In 2021, the James Wilson Institute's Hadley Arkes (joined by Hammer, Matthew Peterson, and Garrett Snedeker) wrote a similar article, expressed more in the form of a manifesto. Yoram Hazony's "nationalist conservatism" engages many of these same themes in embracing a constitutionalism devoted to centralization and nationalism.
Even though the Federalist Society was created as a support structure for legal conservatism, it was organized as a debating society without any enduring ideological commitments.
It is hard to imagine a more motley crew of political pundits and scholars to constitute a political movement. Indeed, the two leading figures within this movement are Hazony (an Orthodox Jewish political theorist who, until 2016, focused on issues related to Judaism and Zionism) and Vermeule (a recent Catholic convert who, before his Atlantic article, was principally known for his scholarship on administrative law and executive power). It sounds like the beginning of a bad joke: A Catholic convert and an Israeli Jew walk into a bar and form a political movement .…
While the group may seem too diverse to constitute a movement, it is a mistake to treat each in isolation. It is likewise a mistake to conflate this movement with Trumpism and populism. Common good constitutionalism was initiated by the 2016 uprising but it has almost no substantive overlap with it.
At least three principles define the broader political movement. One, this movement sees radical individualism, growing out of an unmoored view of individual rights, as the principal cause of our constitutional, political, and social dysfunction. Two, this movement views "big versus small government" as an outmoded way of conceptualizing the American political spectrum. Three, the movement favors using the arsenals of national power – including the federal judiciary and administrative state – for the purpose of restoring the traditional family structure, fostering a common national identity, and enforcing a religiously infused moral order.
The common gooders have not identified a concrete agenda, but even these broad principles have been sufficient to stir many on the Left into a frenzy – which is itself revealing of how our political discourse operates.
The Moral Asymmetry of American Political Discourse
As mentioned above, various liberal commentators have "contorted themselves into knots trying to explain how Vermeule is a crypto-fascist." For example, the New Republic's Matt Ford called Vermeule's essay "unabashedly authoritarian," and noted that many commentators have gone further, accusing Vermeule of being "a fascist" and even condemning "The Atlantic for publishing [Vermeule's] arguments in the first place." Likewise, Eric Levitz of New York Magazine responded to "Beyond Originalism" by accusing Vermeule of seeking "to transform the United States into an authoritarian, Catholic theocracy."
Vermeule's colleagues in the legal academy have not been much more restrained in their speculations. For example, law professors Micah Schwartzman and Richard Schragger warn that, even though Vermeule's book does not emphasize the role of religion, it clearly represents "a dangerous shift in jurisprudence on the right," a shift that would create "the establishment of a state integrated with – or, more accurately, subordinated to – religious ends." Schwartzman and Schragger even wonder whether the book cover, which features "three ancient coins," conveys a crypto-theocratic message in suggesting but concealing that "religious images are on the other side."
Similar accusations have been levied against Hazony's "nationalist conservatism." Even after Hazony released a statement of ten "nationalist conservatism" principles, with one principle specifically extolling civil rights and "condemn[ing] the use of state and private institutions to discriminate … on the basis of race," pundits still found that the movement "has an awful lot in common with fascism."
No matter how much Vermeule broadcasts his eagerness to "favor immigrants from Africa, Asia, and Latin America" and no matter how many times Hazony condemns racism and the American South, their efforts to defend a decidedly non-progressive political morality are treated as a threat to the governing system and thereby condemned as "fascist." And that leads to the third point – why this movement does not, and perhaps cannot, have an agenda.
A Movement Without an Agenda
Here's a challenge: Read the various works that constitute the common good movement (such as Vermeule's, Hammer's, and Hazony's recent contributions) and look for a set of items that could be said to organize the "common good" agenda. What you will find are plenty of complaints about what the common gooders don't like (liberalism, individualism, originalism, federalism, etc.). You will also find plenty of material about the importance of a nation supporting a traditional family structure, a common national identity, and shared religious practices. In some of these works, there is even some discussion of how other societies, past and present, pursue these values. But what you will not find is much detail on how our regionally polarized, ethnically diverse, and religiously divided nation can resemble these other (much smaller and much more homogeneous) societies with respect to these values.
As a result, a serious and open-minded scholar can read these works without coming much closer to knowing whether he identifies as a common good constitutionalist as applied to modern-day America. Indeed, one of the more revealing moments in Stoner's essay is when he confesses that he does not know whether he is a common good constitutionalist. As he explains toward the end of his essay, he identifies as a common good constitutionalist "if 'common good constitutionalism' means that our constitutional rights recover what I have called their common-law and their republican interpretation, where liberty is not confused with autonomy and the exercise of freedom can be judged as better or worse." But, Stoner proceeds, he is not a common good constitutionalist if it justifies "the expansion of a centralized administrative state … where choices about how to live are increasingly removed from the hands of ordinary people, local communities, and the several states."
The Establishment Clause did not change because of Enlightenment liberalism. The Establishment Clause changed because America was no longer a Protestant nation.
Stoner must couch his commitments in hypotheticals because, even after carefully reading and thinking through all of the relevant materials, he is unsure what common good constitutionalism means for our America. And he is unsure what it means for us because the common gooders have not translated their theory into an agenda.
In this sense, common good constitutionalism represents not a departure from, but rather an extension of, the problems that have challenged legal conservatism as a socio-legal movement. As various judicial politics scholars have observed, a successful socio-legal movement needs a concrete agenda that can bind and organize its agents across professional disciplines and areas of public affairs. The common gooders like to talk about how originalism has failed because of originalism's lack of a substantive moral core. But the common gooders ignore the lessons of political science on what makes a movement succeed. The research on socio-legal movements suggests that originalism has failed in the way the common gooders identify not simply because of any defect that inheres in the theory itself, but more importantly, because of how originalism has been structured as a movement.
Even though originalism was borne out of a concrete political struggle over the Warren Court's legacy, it was never moored to that particular agenda. Likewise, even though the Federalist Society was created as a support structure for legal conservatism, it was organized as a debating society without any enduring ideological commitments. This meant that when the practitioners of originalism changed in ideological orientation, changes in the application of originalism would follow. Accordingly, as libertarians replaced conservatives as the leading right-of-center figures in the legal academy, originalism as a practice took a "libertarian turn" – a shift from providing a conservative critique of the Warren Court's exercise of judicial power to pushing for a libertarian embrace of judicial engagement in the enforcement of rights.
A big part of this "libertarian turn" has to do with who controls the legal academy. As James Lindgren has documented in an extensive empirical study, "the largest underrepresented groups [on law school faculties] . . . are white Christians, Christians, white Republicans, and Republicans." In such an environment, criticizing the Warren Court is not just politically unpopular. It is also not professionally acceptable.
And therein lies the problem for the common good movement: If simply announcing a theoretical framework for common good constitutionalism raises the specter of fascism, what would developing an actual agenda that reflects that framework elicit? That may be a step that even common good constitutionalism's "most virile source" is unwilling to take.
But in addition to that strategic matter, the common gooders face a problem that is even more threatening to their project – the problem of how to construct a common good for a nation that is increasingly divided by faith, ancestry, and identity. The common gooders might very well confront the possibility that common good constitutionalism can operate only in a society with the pre-existing coordinates of commonality.
Consider the topic of church-state separationism, which in some variety appears in all of the common good writings. Even the common gooders who are not Catholic integralists prefer greater integration of church and state, so as to permit various policies that the Supreme Court has prohibited under the Establishment Clause, such as Bible reading in public schools and Sabbath requirements. The common gooders treat the Supreme Court's post-war Establishment Clause jurisprudence as expressions of Enlightenment liberalism. But anyone familiar with how these disputes were actually litigated – where the cases arose, which movements supported the litigation campaigns, how the arguments were framed – would know that this was not about the Enlightenment or a letter Thomas Jefferson wrote to the Danbury Baptists in 1802. This was about political struggle – more particularly, the political struggle wrought by the transformation of the nation through 20th-century immigration.
All of a sudden, new questions arose. Which Bible would be read in public schools – the Old or New Testament? Which version of the New Testament – the Douay Rheims or King James Version? Whose Sabbath? The Establishment Clause did not change because of Enlightenment liberalism. The Establishment Clause changed because America was no longer a Protestant nation. And there is no going back to an American religious tradition now that America is no longer a Protestant nation.
This is likely why the common gooders (as well as many of their critics) prefer to stay up in the ether, tangling over the vagaries of natural law. Translating common good constitutionalism into an agenda would require coming down to grapple with the particularities of human life. And that would require coming to terms with the fact that there is no common good agenda that can be implemented in a nation this large and diverse.
The struggle that American conservatives will face in the coming decades is how to learn from the common gooders in displaying the intellectual fortitude to confront the progressive egalitarian framework, while doing the hard work of making constitutionalism function in the polity we actually inhabit. It may be that what emerges will not look much like originalism or the common good constitutionalism currently being offered as its replacement.
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