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University of Chicago Law Review

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1685

Abstract

Professor Adrian Vermeule proposes an alternative to what he sees as the two dominant schools of constitutional interpretation in the United States: originalism and what he usually calls “progressivism”1 (by which he means what others call “living constitutionalism”2 ). Against these approaches, he advocates for what Freudians might call a “return of the repressed”3: a recognition of the extent to which the “classical” natural law tradition’s concern with the “common good” has continued to animate our public law—explicitly for much of our history, he says, and implicitly more recently.

On Vermeule’s proposed alternative, courts (and other institutional actors4) should explicitly interpret5 the text of the Constitution, statutes, and administrative decrees with an eye to promoting the “common good” as understood in what he calls the classical tradition, meaning that it should be understood in distinctly nonutilitarian and nonindividualist terms.6 Officials should do so using something like philosopher Ronald Dworkin’s method of “constructive interpretation” (CI),7 in which the aim is to reach the decision that would follow from legal principles that enjoy some degree of explanatory “fit” with prior official acts (court decisions, legislation, etc.), but in which the inevitable explanatory gap is filled by reliance on those principles that provide the best moral justification for the institutional history of the legal system. For Vermeule, those moral principles are ones that embody the natural law’s idea of the “common good” rather than Dworkin’s “moral commitments and priorities . . . which [are] of a conventionally left-liberal and individualist bent.”8 As the last remark implies, Vermeule’s own moral commitments and priorities are of a decidedly anti-liberal (or illiberal) and anti-individualist bent.9 Even more importantly, by allying himself with Dworkin, he wants to emphasize that judges who follow this approach are doing what the law requires, not simply exercising discretionary power to make new law.10

There are nuances to Vermeule’s “common good constitutionalism” (CGC) that I will discuss in Part I, below, but this bracing proposal, even in summary form, raises a host of interesting theoretical questions, of which three stand out: (1) Is there really a natural law? That is, are there, as Vermeule puts it, “principles of objective natural morality (ius naturale)”11 and “objective principles of legal justice accessible to [ ] reason”?12 (2) Why should the “common good” be conceived in nonutilitarian and nonliberal terms? (3) Is Dworkinian CI severable from Dworkin’s own moral commitments (as Vermeule supposes), and is it more plausible as an account of law than the legal positivism Vermeule opposes throughout?

Disappointingly, there are few arguments in this book in support of answers to these interesting questions, although answers are presupposed—or sometimes asserted dogmatically—throughout the text.

In lieu of arguments in response to the first two questions, the phrase “in the classical tradition [or conception]” does most of the work: the “classical tradition” takes there to be a natural law; the “classical tradition” conceives the common good in nonutilitarian and nonliberal terms; and so on.13 No reasons, alas, are ever given for thinking that the “classical conception” speaks univocally or that it is even plausible or defensible. As we will see, it is neither univocal nor plausible.

On the third question, Vermeule makes clear that he takes himself to side with Dworkin against legal positivists, although he also, alas, takes over Dworkin’s well-known mistakes about legal positivism.14 Vermeule, to be sure, is explicit that his audience is not “the professional student of jurisprudence”15 like me, although the book is nonetheless full of ambitious jurisprudential claims16—about the nature of law17 and legal positivism,18 for example—and stakes out clear (and sometimes astonishing19) positions on many of them. Not writing for the professional jurisprudent does not, of course, excuse an author from making mistakes about a subject matter. Some of Vermeule’s mistakes about jurisprudential issues are fairly inconsequential, and I let most of those pass in silence.20 Some others, however, are actually central to his entire project, and I will address them most fully in Part III below.

I proceed as follows. In Part I, I describe Vermeule’s idea of CGC in more detail, including his conception of the “common good” and his contrast of CGC with both originalism and progressive constitutionalism. In Part II, I take up the question of whether there is a “natural law,” or even a univocal tradition of claims about “natural law.” In Part III, I consider his use of Dworkin (including, in particular, in connection with the strongest section of his book, on administrative law), and Vermeule’s dispute with legal positivism. In the Conclusion, I suggest that given that there is no natural law, that Vermeule’s idea of the “common good” is idiosyncratic and objectionable, and that there is not a clear reason to prefer Vermeule’s jurisprudential picture to that of the positivists, CGC is best understood as a kind of crude, results-oriented legal realism,21 in which the judiciary and the administrative agencies are to be enlisted on behalf of a political agenda that is unlikely to win democratic support.

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