The No-Good Constitution

Anthony Sanders · April 1, 2020

Like many others, I’ve read Adrian Vermeule’s recent essay at The Atlantic on “common-good constitutionalism.” I thought we at the Center for Judicial Engagement should briefly comment on the ideas he outlines because he (1) asserts that a libertarian view of the Constitution is not in keeping with its original understanding (he’s wrong, but that’s a debate for another time) and (2) explains that under the approach he advocates, “libertarian assumptions central to free-speech law and free-speech ideology” will “fall under the ax,” as will “[l]ibertarian conceptions of property rights and economic rights.”

But other than quoting this Jacobian metaphor there won’t be much to say about his ideas on constitutional interpretation. That’s because his proposal for how to interpret the Constitution is not a theory of constitutional interpretation at all; it’s a proposal for unchecked government power with the Constitution sitting idly by. In other words, it’s a proposal that we simply cast the Constitution aside. That may be a political or policy argument, but it’s not an argument about constitutional law. It’s an argument for constitutional nullification.

Distilling his argument down, Vermeule asks political conservatives to advocate for a certain set of fairly nebulous policies—basically a modern-day version of corporatism. He seems to be in favor of broad environmental protections, support for unions, support for some kinds of “pro-family” traditional morality, and similar policies. This perhaps isn’t too different from other “big government conservatism” that many others have advocated for, but it has a starkly more explicit call to moral inculcation and respect for authority. He wants to pursue these policies through a strong presidency and expansive administrative state, something he’s not been shy in championing in past writings.

Notice something weird about this summary of his argument—about a piece concerning “common-good constitutionalism”? The Constitution isn’t mentioned. That’s because he doesn’t see a role for the Constitution in any of this. He brings up the Constitution not because he’s advocating a certain reading of it is superior to any other, but because he wants it out of the way.

The problem with a constitution is it makes some substantive policies, and some procedures used to further any substantive policies, unconstitutional. These limits can be policed by legislators, the executive, and the courts, although given political pressures the courts (the third firewall) are usually where constitutional issues are discussed. But whoever is enforcing it, if a constitution means much of anything, certain things that policymakers want to do will not be allowed. Thus, an act of Congress is not an “Act of Congress” unless a majority of each house votes in favor of it and the president either signs it or Congress overrides a veto. Further, if one of those Acts (even duly passed) abridges the “freedom of speech,” then it would be a violation of that part of the Constitution which prohibits “Congress” from “abridging the freedom of speech.”

To the extent that any of these rules get in the way of Vermeule’s substantive big government conservatism agenda, he argues that judges should interpret the Constitution to allow them. (He even appeals to the Constitution’s preamble, usually a Hail Mary invocation in a losing appellate brief.) In this way he’s much like various brands of “living constitutionalism,” where (mostly) politically liberal or leftist advocates press for the Constitution to not be stuck with outdated understandings of the Constitution’s centuries-old terms (such as “commerce among the several states” or “obligations of contracts”), but instead interpret that text to further some overriding goal, such as “social justice.” This is in contrast to Vermeule’s immediate target, originalism, which Vermeule thinks is bad legal theory in any case, but further has outlived its usefulness now that its more-libertarian advocates use it in the name of courts finding various laws unconstitutional.

However, what’s different about Vermeule from living constitutionalism is he says nothing about what laws judges should find unconstitutional. Although they generally like laws regulating economic liberty and property rights, living constitutionalists usually also have a long list of policies they want to prohibit, from privacy invasions to censorship of (certain, at least) political minorities to oppressive police tactics. This was true of Ronald Dworkin, whom Vermeule mentions in his essay. Instead, Vermeule doesn’t seem to have a list of laws that judges should rule are beyond what the Constitution allows (and even if he does, the omission from this important essay is a silence speaking volumes).

Thus, in the end Vermeule doesn’t care about what the Constitution says. He cares that it not say anything. Why he doesn’t just come right out and call for a system with no constitution or a British-style unwritten “constitution,” or an extremely minimal one, is unclear. Perhaps he simply thinks judges (in addition to congressmen and presidents) ignoring the Constitution is a more politically palatable option than outright repealing it (or even just repealing the Bill of Rights and the Fourteenth Amendment, for example).

But we shouldn’t lose sight of this. His critique of originalism has nothing to do with why originalism isn’t the proper way to interpret a Constitution. It has to do with the Constitution getting in the way of authoritarian power. In turn, that should remind the rest of us exactly why we have the Constitution in the first place, and why defending it against statists like Vermeule is important in this time of crisis more than ever.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.