The Living Voice of the Law: Debates over Common Good Constitutionalism

REVIEW ESSAY
Common Good Constitutionalism
by Adrian Vermeule
Polity, 2022, 270 pages

The Federalist Society may be the one legacy institution that both old‑line conservatives and the New Right admire. And Fed Soc bears none of the unsightly blemishes of other conservative organizations, staffed as they are with incompetents, weirdos, and malcontents. In our legal republic, supposedly governed by laws, the success of the Federalist Society also means that it, and the entire legal conservative apparatus, is one of the most powerful and important organs of the American Right. Therefore, it should not come as a surprise that a battle for the soul of legal right-wingery is afoot.

As a combatant in this war, Adrian Vermeule frequently comes in for criticism—and caricature. His recent book, Common Good Constitutionalism, lays out an admiring vision of the administrative state—or, at least, its potential—a vision of jurisprudence which is more pragmatic than philosophical. It is a vision which, drawing on classical sources, is grounded, cogent, and coherent, and which, peculiar to books these days, takes as a starting premise the presence and possibility of great men accomplishing great things.

In the following review, I will avoid making judgments about the substance of common good constitutionalism. Rather, I hope to place this emerging theory in the context of current debates within the con­servative movement—disputes over the proper role of authority, rights, and the administrative state—to read it in its “best light” and to understand it on its own terms.

A concise statement of the case: The classical legal tradition, in Vermeule’s view, is the beating heart of American law. This tradition was well understood and relied upon by the founders and subsequent generations of American lawyers, jurists, public officials, and philosophers. The classical tradition sees law as a “reasoned ordering to the common good . . . an act of purposive and reasoned rulership that promotes the good of law’s subjects.” In faithfulness to the law’s telos, the “master principle of [American] public law should be the classical principle that all officials have a duty, and corresponding authority, to promote the common good.” In short, the American tradition of law is planted in the larger tradition of the West. This blend and mixture of Roman law, natural law, canon law, and civil (positive) law is the ius commune.

The Classical Tradition:
A New Way Forward for Legal Conservatism

Common Good Constitutionalism is a broadside against legal positivism—particularly against the idea, commonly held by conservatives, that there is no law outside the enacted text, whether that be the text of the Constitution or the text of statutes. The classical tradition distinguishes in the first place between ius and lex, a distinction which Vermeule argues is entirely confused in contemporary American jurisprudence. Lex is positive law, the enacted texts of a ruler or ruling authority. Ius, on the other hand, is the legal order as a whole, comprising both the enacted positive law and the background principles and traditions of the legal and moral order of the West. Ius incorporates not just the positive law—the text which is the intense focus of originalists—but the princi­ples of law in the classical definition. Remember that law is a rational ordinance to the common good, a product of human reason which seeks to instantiate the principles and precepts of natural justice—“to give every man what is due to him.”

But natural law or justice may be very general, containing precepts that are not directly applicable to every case or situation. The natural law, and other unwritten legal principles which form the ius commune, are specified in a process called determination (determinatio). Through this process, the general principles of the ius commune are determined, bounded, and specified through a lawmaking body.

As an illustration, the classical tradition understood natural law to guarantee to every human being the right to defend oneself against harm; this was a right that was a natural by-product of our existence as individuals. But this general principle, easily inferred from the ontology of human beings, does not give us specific guidance on what kinds of defenses are allowed or not and in what situations they are allowed, what counts as harm, and how much harm must be perceived in order to defend oneself, and so on. This general principle of natural law must be determined to fit all the circumstances of human life. In the context of the natural right to self-preservation, this principle was extended to the protection of one’s life, liberty, and property in the course of litigation. These procedural rights ensured that individuals had the right to speak in their own defense, and that every person affected by a ruling should have the opportunity to be seen and heard before an impartial judge. Summary proceedings, in which an individual was affected and bound by a judgment without being present or receiving notice, would be violative of the natural right to self-preservation, determined in this way.

In the classical tradition, law has an essential telos. Law is a rational ordinance to the common good. Because public authorities are presumed to be making law—and not simply issuing dictates unmoored from rationality—any discrepancies between the ius commune and the enacted text must be settled in favor of harmonization with the ius commune, which contains the enacted text within it as a definitional matter. Public authorities are granted wide latitude to decide what is conducive to the common good; on the other hand, this presumption of rational ordinance gives judges enhanced toolkits with which to judge these ordinances.

As we will see, the notion of “background principles” is not foreign to American law. In the area of administrative law, in particular, judges and regulators seem to operate under certain notions of what law is and what it is not. While upheld by precedent, these notions are not elucidated in any statutory text or in the Constitution. As Vermeule and Cass Sunstein have argued elsewhere, these actors tend to assume certain principles which are considered fundamental to any legal system—for example, that agencies must explain their departure from a regular course of action, that agencies must follow their own rules, or the norm against retroactive application of the laws.¹

The Common Good in American Law:
The Police Power

Having described the meaning of law and the ius commune under the common good framework, we must now investigate the slippery term itself—we must explain what is meant by “the common good.” The phrase’s mere appearance raises the hackles of originalists and their would-be defenders. To critics, the common good is at best a pretense for some yet unspoken motivation; at worst, it is the coercive imposition of a peculiar morality. They fear that the “common good” is “just a shorthand for the preferences of those in power.”

But the common good, Vermeule argues, is already woven into the fabric of American law. It is not an “alien irruption of a newfangled or ominous idea.” Consider, for example, the many statutory, regulatory, and Constitutional references to the “general welfare,” “the public good,” and the “public interest.” Although these clauses are often used as “hooks” for ideological actors, rejecting an overly broad reading of such references does not mean that we can ignore them.

To Vermeule, the common good can be summed up by a simple triptych—peace, abundance, and justice. All lawmaking authorities, if they are legitimate—if they are indeed making law—will have as both their guidepost and their boundary the peace of their society, abundance for its families, and justice for its people. This triptych was recognized as the aim of law and the form of the common good. Echoes of its influence can be seen in the preamble of our own Constitution—to establish justice, ensure domestic tranquility, and promote the general welfare—justice, peace, abundance.

For those searching for a clear example in the American tradition of the common good framework, Vermeule points to a line of cases which set out the boundaries of the so-called police power. Perhaps the most infamous of these cases is Lochner v. New York. Vermeule draws heavily from Justice Harlan’s famous dissent in Lochner, as a clear and concise restatement of the common good framework in the American legal tradition.²

Harlan’s framework at its simplest is the notion that states possess a general, unbounded power to legislate for the health, safety, and security of their citizens. It is the power that a state retains by virtue of its being a legitimate public authority. Summed up by Justice Harlan, the police power stands for the principle that “no one may rightfully do that which the lawmaking power, upon reasonable grounds, declares to be prejudi­cial to the general welfare.”³ Public authorities, acting within their “constitutional sphere of competence,” may act on a reasonable concep­tion of the common good, which consists of the legitimate ends of gov­ernment—health, safety, and morals—by making “reasonable, non­arbitrary determinations about the means to promote its stated public purposes.”

The police power is fairly close to the classical understanding of rulership. The police power has no precise circumscription; it is not enumerated in a text. It is the presumptive ability of the sovereign authority to promulgate laws which protect the health, safety, and security of the citizens it rules, taking as axiomatic that such rules and laws are legitimate, and will be promulgated in pursuit of the com­mon good, reasonably understood. As Justice Harlan explains, quoting prior Supreme Court precedent, the Court has “with marked distinctness and uniformity, recognized the necessity, growing out of the fun­damental conditions of civil society, of upholding state police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health, and property which each state owes to her citizens.”⁴

“The Living Voice of Our Law”:
The Administrative State and Its Enemies

The “police power” was traditionally exercised by the states. But the growth of the federal government’s power and the importance of the national Constitution through the Reconstruction amendments natu­rally led to a kind of federal police power, exercised chiefly by the federal administrative agencies—this despite the fact that, according to predominant federalist theories, no such power exists.⁵ In reality, however, the federal administrative agencies regulate wide swathes of American life, from public health and safety to economic relations, in a way that resembles the traditional police power.

The administrative state has remained a bogeyman for the American Right—opposition to the administrative state is one of the few through lines which connect the old conservative establishment to the so-called New Right. Whether through the sophisticated arguments of Gundy v. United States and West Virginia v. EPA, or frenetic gesturing to the unaccountable “deep state,” conservatives have remained hostile to our bureaucratic empire.

It is on this topic of the legitimacy and normative value of the administrative state that common good constitutionalism stands out among the conservative arguments jockeying for support in a post-Trump world. Far from reflexive hostility, Vermeule calls the administrative state “the living voice” of American law.

Like the urban praetors of Rome, our agencies act under the “authority of great, often very general statutes and executive orders . . . [which] need to be fleshed out, supplemented, and adapted to changing conditions over time.” In the administrative state, these adaptations take the form of orders, rules, directives, interpretations, and adjudications—all the instruments in an executive agency’s toolkit. These “determina­tions,” over time and throughout many years, cases, and issues, eluci­date, elaborate, and fit the law to changing and particular circumstances, transforming the “general” into the “particular,” just as the natural law and the principles of the ius commune are determined to fit the changing nature of society. This is the “voice” of American law, the adaptation and determination by our public authorities of general principles of the positively enacted law to particular circumstances, conducted with due process, good faith, and reasoned argumentation.

A traditional conservative might scoff—what, exactly, is to prevent the public authority from abusing its power, or simply misusing it? And what compels an administrative agent to act in pursuit of the common good? Most importantly, how can law maintain its internal morality when administrative agents may make new law through executive fiat and ad hoc decision-making, the chief concern of conservative skeptics? According to this argument, agency actors, given a wide zone of dis­cretion, will abuse and misuse their power, and otherwise fail to act reasonably. We cannot put our faith in individual actors to make decisions for the common good. Rather, conservatives might say, we must rely on the positivist structures—specific statutes and the Constitution, read with a textualist methodology—to avoid caprice.

To this last question, Vermeule offers an empirical, historical answer. The expansion of the administrative state did not lead to a proliferation of rules, directives, and codes which lack internal consistency and which leave citizens at the mercy of arbitrary rulemaking. Instead, it has incentivized a new focus on general principles. Critics of the nascent administrative state in the early twentieth century feared that the “gen­eral rules” of the common law system would give way, in an increasingly complex economic environment, to ad hoc, ex ante rulemaking, decid­ed at an ever-more granular level, forgoing generality entirely. But Vermeule argues that the increasing complexity of the problems faced by the administrative state has led to a new “triumph of principle.” Far from rule by executive diktat or caprice, we see instead a case law which abounds with reasoned argumentation, based on principles gleaned from the American legal tradition, the classical tradition, natural law, and the case law which has developed over time.

This new age of “principle” was inaugurated by the Administrative Procedure Act (APA), the statute which governs the practice of the administrative agencies to this day. Originally enacted in 1946, the APA was a compromise between the architects of the administrative state and its critics. The APA

is best seen as a charter of general principles. Administrative action must not be “arbitrary” and “capricious”; agencies may make rules without public process so long as “the agency for good cause finds” that compliance would be “impracticable, unnecessary, or contrary to the public interest”. . . . Our great charter of administrative procedure is full of generally stated principles whose interpretation inherently requires judgements of political morality. . . . The APA is the modern equivalent of the “natural law codes” of the Napoleonic era, codes built around general principles.

These principles are the boundaries within which the jurisprudence of the administrative state takes place. We may all agree as a matter of normative justice that decisions by administrative agencies should not be arbitrary or capricious. What exactly constitutes arbitrariness and capriciousness is left up to the internal negotiation between actors in the system, including administrative agents and judges.

In practice, the Article III courts and the agencies themselves have developed a complex body of case law—a body of work which is spirited and lively, and concerned not only with technical matters of interpretation but “fundamental issues of rationality and political morality.” The resulting body of law, claims Vermeule, is neither arbitrary nor abusive, but rather is “some of the most normatively and theoretically saturated jurisprudence to be found anywhere in public law.” In other words, the actors within the system, guided and structured by the general principles of reason, morality, and the Western tradition, have ruled in good faith.

Indeed, the absence of the administrative state would lead to much more capricious governance. By the early twentieth century, the com­plexity of the various spheres subject to administrative regulation had resulted in broad “zones of discretion” where the law had “run out.” The positive law, the enacted texts of statutes, had been outdistanced by the increasing complexity of society.⁶ In historical circumstances, before the complexity of the modern economy, enacted positive law, while not exhaustive, may have covered most of the necessary ground, leaving small zones of discretion to executive agents in the truly difficult cases. This is the preferred world of conservative critics of the administrative state, whose constant dressings-down of Congress to “pass a law” reflect their suspicion of wider zones of discretion.⁷

Vermeule, drawing from the work of Ronald Dworkin, suggests that in response to this increasing complexity, administrative agencies re­treated to a soft anti-positivism. Instead of assuming that there cannot be any legitimate law outside the boundaries of enacted text—which would demand of legislators a specificity, in a complex society, which they could not accomplish reasonably—judges and legislators in the twentieth century instead developed “general principles of strategy and fairness” which would guide the development of administrative action. Judges and legislators would develop codes “based on abstract, general jurisprudential principles, cast at a higher level of generality.” This simultaneously retained the legitimacy of enacted codes of law, while avoiding the clear problems with case-by-case, overly specific rulemaking.

In the realm of administrative procedure, Vermeule sees the full flowering of this view of general jurisprudential principle guiding relatively free agency action. The law of administrative procedure is “full of principles that courts state confidently and use routinely, but whose source in positive law is often unclear . . . these principles function independently of any positive-law source.” Indeed, Vermeule notes that many of these general principles—for example, that agencies must follow their own rules or that a court can review an agency action solely on the justifications that the agency itself relied on—are based in caselaw that predates the Administrative Procedure Act.

The result is a development of a “jurisprudence of principles.” This jurisprudence, as is obvious, relies on the talent and skill of its practitioners—it relies on the trustworthiness and reliability of lawyers, judges, and executive agents to pursue the common good, subject to control, oversight, and the ambitions of the other branches and interests in the federal government. Through this, admittedly idealized, process, the administrative state functions as a self-sustaining ecology, an organic embodiment of the tensions and principles of the American legal, moral, and ethical tradition. It is the living voice of American law.

Originalism and the Living Constitution:
Two Sides of the Same Coin

Vermeule’s full critique of originalism as a methodology is beyond the scope of this essay. Nevertheless, a certain aspect of his criticism of the originalist method requires treatment, because it reveals something important about common good constitutionalism.

Vermeule accuses the originalist methodology of acting as a cloak for the essentially libertarian bent of most of its adherents. Especially on issues of free speech—Vermeule notes that blasphemy and obscenity laws were broad and common in the founding era—the originalists prove themselves hypocrites.⁸

Without accepting the totality of this argument, it can hardly be argued that the legal conservative movement does not have a certain preoccupation with an individualist understanding of the Constitution and the protections it affords. This preoccupation reflects relatively recent conceptions of individual liberty read back into the Constitution and com­mon law tradition. However pure their intentions, originalist lawyers and judges are human beings; their moral commitments to freedom and liberty, in the contemporary understandings of those words, will surely, despite their best efforts, influence their methodology.

This is also a frequent criticism levied by so-called liberal originalists,⁹ but the “meta” debate between the common good constitutionalists and the conservative originalists is not solely about interpretation, the role of positively enacted texts, or the role of a jurist. Fundamentally, the clash between common good constitutionalists and the conservative originalists is between right and authority, between an individualist understanding of what rights are and a communitarian understanding.

If there is one conclusion to be drawn from Common Good Constitutionalism’s legal theory, it is that authority is central to the American constitutional order. Not only should judges defer in most cases to the reasoned decisions of public authorities, but the whole edifice of American caselaw which sees rights as trump cards—as inviolable zones surrounding a person, which will defeat public action, even rationally pursued—must be skeptically questioned.

On the contrary, common good constitutionalism is a theory which “reads constitutional provisions to afford public authorities latitude to promote the flourishing of political communities, by promoting the classic triptych of peace, justice, and abundance, and their modern equivalents and corollaries.” It is a theory which “ensure[s] that the ruler has both the authority and the duty to rule well.” This vision differs considerably from the mainstream conservative understanding of law as a constraint on the power of public authorities. “Constraints on power are good only derivatively, insofar as they contribute to the common good,” retorts Vermeule. This general principle would allow the public authorities to regulate in areas which conservatives and libertarians may prefer were inviolable—in property rights, speech, sexuality, and public morals.

Vermeule draws on the work of William J. Novak and his book The People’s Welfare: Law and Regulation in Nineteenth-Century America, to add color to his broad sketches of the police power and the common good framework. Novak’s book sought to puncture the myth of a “stateless” nineteenth-century America which eventually gave way to a continental bureaucracy. Instead, he shows that much of American life was governed by public ordinances in pursuit of a “well-regulated society.” Much of American law, in Novak’s telling, had as its goal the harmony of social relationships, wherein private interests gave way to public good. Towns, cities, municipalities, and states were given wide latitude to govern their communities for salus populi, for the people’s welfare. It was presumed that these authorities could regulate broadly in economics, health, safety, and even morals. We find this assumption plainly in Justice Harlan’s dissent in Lochner v. New York.

But as Novak points out, this world of the common law’s “well-regulated society” was bound up tightly, if not inextricably, with pre–Civil War America. The localist ethos of prewar America could not survive contact with the postwar federal expansion, which hastened a “constitutionalization” of American law.¹⁰ This “liberal state” replaced the well-regulated society’s preference for “articulating the roles of asso­ciative citizens in a confederated republic. . . . Power and liberty, for­merly interwoven in the notion of self-regulating, common law commu­nities, were now necessary antipodes kept in balance only through the magnetic genius of an ascendent American constitutionalism.”

Parallel to the unfolding centralization of the American state came a new focus on individual rights and absolute liberty. “Abolitionism, emancipation, and radical Republicanism renewed interest in the in­herent, natural, and absolute rights of individuals, dethroning a public-spirited common law as the source of American fundamental law.” The new philosophy emphasized “individual freedoms and personal autono­my rather than the duties incumbent upon members of organized and regulated communities.”¹¹ These two theories of American law and politics—centralization and individualization—grew up in tandem, both conspiring to put an end to the intermediate institutions which existed between them.

What resulted was our current liberal constitutionalism, of which originalism and living constitutionalism are only warring factions. Lib­eral constitutionalism sees power and liberty as definitionally separate, not “interwoven” as in the common law tradition. Fundamentally, there is the central state, possessing power, and the individual citizen, pos­sessing rights or liberties. The negotiations between power and liberty would be presided over by an almost scientific application of constitutional principles—a structural analysis in which the units were separate and apart, instead of being intermixed as in the common law tradition. This is a “vision of law and society emphasizing a harsh, overarching separation of the private and the public, the individual and the state—the dichotomy is total and the two are often seen as intrinsically hostile and antagonistic.”¹² Judges in this scheme are the “border guards of an all-important frontier between public powers and private rights.”

The common law jurisprudence of the common good—of salus populi—instead understood power and liberty as necessarily intermixed. “Rights were . . . social (as opposed to individual) and affirmative (as opposed to defensive) . . . they were also distinctly relative (as opposed to absolute).”¹³ The common good jurists of the nineteenth century emphasized “the relational and qualified nature of rights. . . . All rights were defined by and subject to the larger society from which they sprang.”¹⁴ This understanding “poses some problems for contemporary legal and historical scholars who insist on seeing rights, first, as absolute shields and trumps protecting individuals from society and government; and second, as the definitive achievement of a unitary and continuous liberal constitutionalism.”¹⁵

Vermeule reiterates that this mistaken view, shared by originalists and living constitutionalists, of government powers and individual liberties as being definitionally opposed, is a chief distinction between common good constitutionalism and liberal constitutionalism. According to current doctrine on “strict scrutiny,” for example, fundamental rights may be “trumped” or “overridden” when certain conditions are met, balancing the public interest with the private right.¹⁶ At first glance, this may seem to be harmonious with a relational conception of rights. Vermeule argues, however, that “[t]he implicit premise of this framework is that the interests of ‘government’ as representative of the political collective . . . and the rights of individuals . . . are opposed and must be balanced against each other.”

The common good framework, on the other hand, sees rights not as separate from the public good and opposed to it in some fundamental sense, but rather rights are “always ordered to the common good.” “The issue is not balancing . . . but internal specification and determination of the right’s proper ends, and therefore, its proper boundaries or limits.” As William Novak puts it, the constitutive parts of the well-regulated society—the common good, rights, etc.—were interlocked and mutually reinforcing, each containing within it the definition of the others. “Rights,” Vermeule writes, “are always ordered to the common good, and that common good is itself the highest individual interest.” Rights are thus determined in a given case, just as the natural law is determined in a specific case.

In the common good framework, then, our jurisprudence surrounding individual rights would be upended. Rights would still exist, con­trary to critics’ assertions, and they would not be toothless. Individual rights are legitimate interests, and they need not yield to any reasonable determination whatsoever. But like constraints on power, they are good only derivatively, to secure the blessings of liberty, not liberty for its own sake. Rights would be relational—all rights deriving their legitimacy from the public welfare. There is no way in this framework to construe, for example, the publication of pornography as protected speech. “Speech” which affects the common good negatively is not free speech properly understood. “From the classical perspective,” writes Vermeule, “one of the core tasks of political authority is to protect the health, safety, and morals of the public from those who would degrade them. . . . It is not just a matter of ensuring individual consent (the liberal theory of rights, founded in autonomy), but of ensuring a public environment that is not overrun by material damaging to the moral well-being of the political community.”

Legal Training as Moral Training

Mainstream legal conservatism, along with its concern for individual liberties, is also preoccupied with structure. It is the structure of the Constitution, and the institutions which owe it their existence, which ensures good governance. The separation of powers is key to this scheme. The central role of constitutional law, then, is to preserve the unique constitutive parts of the American sovereign. Not only must these powers remain distinct—the judicial, the legislative, the executive—but they must remain separate unless explicitly mixed. One might even say that, to a legal conservative, the separation of powers is identical to good government. It is the separation of powers which prevents oppressive abuse thereof and which preserves liberty; the preservation of liberty is itself the main objective of government. To the extent that liberty is threatened in our age, or to the extent that good governance has become difficult, it is due to the distortion and perversion of our constitutional order, according to this view: legislative powers exercised by executive agents in the administrative state; lawmaking in the form of judicial overreach; and a legislature which is unwilling to assume its prerogatives and responsibilities. This is a constitutionalism which is focused intently on structure, on the distinc­tion between power and liberty, right and authority. In this view, legal training is doctrinal and principled. It is also, of course, prudential and ethical, but it is chiefly a matter of investigating the positive law and the structure of the Constitution, in order to maintain the internal consistency of the constitutional order.¹⁷

A constitutionalism of the common good is not as intently focused on formal structure. What, then, if not the structure of the Constitution—if not the separation of powers—controls and constrains the actions of public authorities? Though structure is important—it could not be seriously argued that the form a government takes has no effect on its capability, competence, or moral stature—it is not the only aspect of good governance. At the center of common good constitutionalism, the beating heart which lends vitality to the classical legal tradition, is the reasoned good faith of the actors in the system. A classical lawyer—which is to say, a Western lawyer—must exercise the faculties of reason, good faith, and prudence in the court room. Likewise, the public authorities must exercise the same in the promulgation of the laws. The separation of the judicial and legislative power is important not because it protects liberty per se, but because the good faith of the lawyers sitting in judgement and the legislators or magistrates acting as promulgators ensures a proper, reasonable check on the exercise of lawmaking powers. “The whole point of the classical view,” Vermeule writes, “is that governance and law are themselves suffused with and constituted by reason . . . [the resulting law] requires courts to make reasonable judgements, in good faith, about whether public authorities have themselves made reasonable judgements, in good faith.” Common good constitutionalism, then, is necessarily a project which requires human excellence and virtue, bent toward the aims of ruling well.

What is the real significance of this difference in emphasis? Vermeule admits to the importance of separate founts of power and ambition, and establishing a system based on the separation of powers was certainly a central objective of the constitutional framers. On the margin and in a given case, a common good constitutionalist might be less concerned about the extent to which executive, legislative, and judicial powers are often wielded by the same administrative agencies, in seeming contravention of the principles of power separation. Instead of conducting a structural or historical analysis of which and how many powers can or cannot be exercised, a common good jurist might instead look to the reasonableness of an action in a given case. They might inquire about the reasons, justifications, and the motives of the agency or executive actions. If this sounds familiar, it is because much of the Administrative Procedure Act is focused on just this sort of inquiry. Common good jurists are less concerned with the strict formalism of the separation of powers, and more concerned with how a given agency is exercising that power.

In this way, legal training is moral training. Lawyers must be trained in history, doctrine, principle, and structure—but they must also be familiar with a prudential understanding of what it means to make law for human societies. They must further have a deeper understanding of the West—they must be acquainted with the Bible, with Roman and canon law, with the entire corpus of the Western legal tradition—the ius commune. The Western lawyer, then, is more than merely a student of law; he or she is a student of the West, a recipient of that grand tradition, formed by it and forming it in turn. The ius commune—comprising both structure and positive law, and the more supple tradition of reason, principle, and history—is what controls, domesticates, and guides the rulemaking, legislating, and argumentation of a Western lawyer, not only the structures of other, secondary institutions.

Yet if good faith is at the heart of the classical “common good” tradition, essential to its function—and even if it continues to play a role, often behind the scenes, in today’s jurisprudence—it is only natural to ask how our own society, beset by mistrust, suspicion, and polarization, can produce the kinds of men and women who can rule and rule well. In the analysis of traditional conservatives, at least, we can focus on the structure of precarious political institutions. If men were angels, we would need no government, and let us say that our society lacks for angels. If the fault lies in the very hearts of Americans, in a great social sickness, what hope is there to raise the kinds of people who might make use of a constitutionalism of the common good? Of what hope is legal and moral training if there are few willing teachers and fewer eager students?

Earlier in this essay, we explored the “well-regulated society” of nineteenth-century America—a time when the classical tradition, in the form of the police power, was central to the American legal system. It is unclear how Vermeule’s own, contemporary common good constitutionalism fits with this history of the common law’s well-regulated social order. As Novak makes clear, the common law social order was studded with communities within communities, structures within structures. The proliferation of rules and regulations was midwifed by a landscape of governing authorities—communal, local, municipal, state, and federal. The ability of communities to regulate for the common good was predicated on pre-political social structures which have long since dissipated. Is such governance possible at the federal level, in a country and society as deracinated, atomized, and massive as our own? Even if the administrative state could take the place of the common law courts of the nineteenth century—as Vermeule suggests—could it mimic their function and efficacy in a completely different environment? Indeed, it may even be the case that, to return to a social landscape where the common good framework, the well-regulated society, can flourish, we may require a de-federalization, a de-constitutionalization, of our political economy.

It should not be taken for granted that our impersonal administrative agencies might be able to pursue the common good ensconced in a centralized state, far away from the regions and localities they seek to govern well. If the classical tradition requires determination of the general into the particular—of the principles of the ius commune into the particular circumstances of a country, a city, a town, a case—can a massive, continental, impersonal bureaucracy be expected to conduct such determinations in a nonarbitrary and reasonable way, attendant to all the intricacies and differences inherent in American social life?

Populism, Democracy, and the Common Good

Despite the urge among young conservatives to rethink the legal wing of the conservative project, including a reassessment of liberal constitutionalism and originalism, the administrative state has perhaps never been under so much sustained fire from the Right. A new conservative Su­preme Court majority, for one, has been more than willing to reconsider the long-standing principles of the Court’s approach to administrative agencies. Justice Gorsuch is a strong, if often polemical, voice on the Court for more drastic reconsiderations of administrative power. The pandemic, too, has shown conservatives—and not just them—how many administrative actors have an understanding of the “common good” which is woefully inadequate; how their “expertise” is precarious, resting on the edifice of the credentialing syndicate of the American university system; how they are often captured by special interests or ideological pet projects; and—it must be said—how many of them are simply bad at their jobs, their commitment to the common good not­withstanding.

Objections to the administrative state, whether in their populist or elite manifestations, represent a powerful strain in conservative thought. Common good constitutionalism, on the other hand, is at this point an elite and even aristocratic project. It relies upon rule by executive administrators. These administrators, to pursue the common good rightly understood, must necessarily be insulated from the vagaries of the political process—not absolutely or hermetically, but prudentially. Of course, this understanding is not new; many of our grand independent agencies, including the Federal Reserve, are insulated from the president by protection against at-will removal and other politicized influences. The administrators who exercise considerable power are also drawn largely from a small slice of American society—college educated, often with advanced degrees, often from urban environments or careers in them. Sociologically, they are unique, different not only from the Republican electorate but from the polity as a whole. It must necessarily be so, and this is why any idealistic vision of the administrative state must necessarily be aristocratic.

How can the aristocratic nature of administrative rule be squared with the populist impulse currently driving the conservative party? Much of Republican politics is concerned not with insulating the admin­istrators, but subjecting them; not with ensuring their independence, but exercising control over them. Widening the zone of discretion for the college-educated bureaucratic elite seems, to them, more like surrender than good government.

I suspect Vermeule knows this. Would he recommend a delicate two-step? An assertion of presidential power over the administrative state, in order to rid it of troublesome bureaucrats but gentle enough to leave the great machinery intact? And where would these new administrators come from? The conservative coalition is not ready to staff it, and does not have the institutions necessary to form the kinds of men and women which might do so. It would take a leader of legendary dexterity to simultaneously channel the populist energy of the Right and at the same time to remake the institutions of higher cultural nobility. The conservative movement can’t make up its mind between the brute force of politics, in which the common good is subordinated to political ends, and the aristocratic project of the classical tradition.

This only underlines boldly the reality that there must be, at some point, a reckoning of the disparate factions, impulses, and instincts of the tremulous conservative movement. For now, united by their mutual enemies, the contradictions can be held in abeyance, suspended until some real actions must be taken. We can have common good constitutionalism along with Trump and along with Kevin McCarthy; we can have tax cuts with culture wars.

As we have seen, more than any of the competing theories, common good constitutionalism relies on the stature of the lawyers, judges, and public officials who call it their creed. The classical legal method re­quires a classical training. The common good, rightly understood, cannot be pursued if it is not understood. The classical lawyer must think like a classical lawyer. In making the determinations so central to the telos of rulership, the determiner must be schooled and bred in that tradition; must drink deeply from its cup; must think clearly, reasonably, and morally, and understand oneself as serving a grave purpose. In other words, a reinvigoration of the classical legal tradition in America would require the kind of person of which our poor, sick republic has precious few.

Theory can only get us so far. The conservative intellectual elite has plenty of theorists. It has fewer managers, administrators, and executors. It is an open question whether our country can still produce this blend of intellectual and practical excellence. If it can, Adrian Vermeule’s book is one long admonition to conservatives to build organizations, institu­tions, and societies which will train administrators, lawyers, and legisla­tors to operate within and alongside the state, not in opposition to it. A right-wing politics which embraced this vision would transform a great many things, including itself.

This article originally appeared in American Affairs Volume VII, Number 1 (Spring 2023): 159–76.

Notes