How could we not yearn for a politics oriented toward the idea of a common good? Every malicious, mendacious and degenerative force in public life maneuvers to close ever more sites of collective imagining and decision-making. In the face of this hollowing out of democratic life, whether by libertarian conservatives or market-friendly liberals, we might think, we should not be timid. Our goal should be nothing less than articulating new ideals for a new political movement to hold in common.
This, at least, is the perspective that informs Harvard law professor Adrian Vermeule’s argument in his latest book, Common Good Constitutionalism, that state power is vast and legitimate so long as it aims toward “the flourishing of a well-ordered political community.” Building on a widely read essay in the Atlantic, Vermeule’s book gives an extended statement of his sometimes-eschatological rebuke of both progressive liberalism and what he sees as a wayward conservative legal movement. At the core of Vermeule’s vision is the insistence that political authorities are natural and legitimate insofar as they guide the political community toward a higher good. This claim is supported by a Thomistic natural law tradition that, he believes, already informs the better parts of our legal sources and doctrines. According to that tradition, a state’s pursuit of the common good empowers it to legislate for peace, justice and abundance. Vermeule adds health, safety, economic security and a right relationship to the natural environment.
Vermeule’s argument is meant to challenge established legal doctrine across the ideological spectrum. First, Vermeule must wrestle and dispense with two shibboleths of the conservative legal movement since the 1970s. The first and most attention-grabbing of these is originalism—the idea that judges are constrained in their interpretation of text to articulate the meaning of the words as they would have been understood by the public when enacted. The endless debates among lawyers and law professors over originalism is perhaps best understood as an effort to wriggle out from under crushing contradictions. Respectable versions of originalism (of which there are perhaps several) are attempts to address the democratic deficits of a federal judiciary empowered to strike down popularly enacted laws. The contradiction arises because the democratic deficit of the judiciary is endemic to the institution itself, and cannot be addressed by any theory of interpretation, no matter how constraining or prudent it purports to be.
For Vermeule, there is no special need to reconcile the power of judicial review with democratic principle. This is because he rejects “democracy” as the touchstone of legitimate state power: the only proper measure of legitimacy is the common good. (His distance from “democracy” is typographically evidenced throughout the book by scare quotes, as if he is loath to touch the stuff.) The real question about courts is therefore limited to what role they should play in the state’s pursuit of this common good. This leads to the second element of Vermeule’s break with conservative legalism. Vermeule maintains that legislatures—and their partners in lawmaking, administrative agencies—have presumptively valid authority to enact and implement any laws that can be seen as reasoned efforts to promote the common good. Whereas conservative legal orthodoxy has for decades sought to limit judicial deference to agency decision-making (at least in areas other than foreign policy and immigration), for Vermeule, any theory or practice of governance that either denies the fact that the public authority directs power toward the common good, or tries to limit its effort to do so, is “incoherent” and “fraudulent.”
The charge of fraudulence flows from Vermeule’s gleeful account of the development of the academic theory of originalism as an ex-post graft onto a reactionary political agenda. Yet the political needs of religious and capitalist reaction have shifted since the heady days of Robert Bork and the young Antonin Scalia, and the agenda is already moving out from under the theory born to give it cover. This explains why the backlash to Vermeule’s anti-originalism is mostly confined to professors who won tenure on the plausibility of the theory. By contrast, movement conservatism, ventriloquized by Senator Josh Hawley and his raised fist, basically shares Vermeule’s view. If a Supreme Court with a majority of self-professed originalists could decide Bostock v. Clayton, extending civil rights protections to gay and trans people, then “textualism and originalism and all those phrases don’t mean much at all,” as Hawley argued on the Senate floor.
In some conservative circles, then, originalism is a tool happily left behind, or at most selectively employed. For these conservatives—some of them the self-styled “post-liberals” who rose within the party during the Trump years—Vermeule offers a new legal-political technology. Looking to the authoritarian ethnonationalism of Viktor Orbán’s Hungary, many have already noted the potential of a powerful federal bureaucracy to enact its agenda. To this effort Vermeule contributes his defense of the American administrative state. Administrative agencies are the “living voice of our law.” The kind of discretionary judgment they inevitably employ is guided by background principles of natural law and should be shielded from the zealous eye of judicial review. This defense of administrative capacity to enact a moralized agenda has been Vermeule’s lifework.
These ideas put Vermeule at odds, however, not only with most conservative legal thinkers but with virtually all mainstream legal institutionalists. Whether identified with the Democratic or Republican Party, Vermeule’s enemies are those who cling to the idea that we can mitigate persistent disagreements via procedural proprieties that limit which goals we can pursue with the machinery of state. Liberals who believe, as the Planned Parenthood v. Casey Court put it when it refused to fully undermine Roe v. Wade, that each person may “define one’s own concept of existence, of meaning, of the universe and of the mystery of human life,” are, Vermeule growls, “abominable, beyond the realm of the acceptable forever.” Likewise, conservatives who wield originalism to limit administrative reach are clinging to an “illusion.” We can no longer, he intimates, tolerate the delusional neutralism of liberal progressives who take the expansion of liberal autonomy to be natural and inevitable, or of conservative originalists who pretend they are just interpreting words on the page.
There is so much in Vermeule’s book to raise the hackles of a sensitive reader that it is important not to accuse him of saying things he doesn’t. He does not argue that all political actors should directly pursue the common good. In particular, he is helpfully critical of judicial supremacy in statutory and constitutional interpretation. He defends a kind of role morality according to which occupants of different roles in the political system have specific, well-defined jobs which only indirectly contribute to the greater good toward which the polity as a whole is oriented. It is true that he thinks judges, when engaged in ordinary interpretive tasks, must have recourse to the general principles of natural law as background. But in claiming that judges must invoke political morality while engaged in interpretation, Vermeule is no radical. He is explicitly parroting the liberal legal philosophy of Ronald Dworkin.
But whereas Dworkin is a liberal who believes the state’s political morality should aim for neutrality between different ways of life, Vermeule is a Catholic convert and integralist who believes that state authority is and ought to be subordinate to the spiritual authority of the Catholic Church. The main argument of Common Good Constitutionalism, he insists, does not depend on his religious commitments. (Though it doesn’t take a Herculean act of interpretation to tease his sacral commitments out of its pages: very few writers bother to emphasize that they are discussing merely “temporal” government if they aren’t also discussing “higher law.”) Even so, there are rhetorical moves worth noticing. Vermeule repeatedly casts liberalism as a kind of gnostic perversion of the true faith: what he calls the “liturgy of liberalism” appears as a kind of relentlessly woke religion of freeing individuals from the constraints of tradition and family. In doing so he is repeating a trope long animating avowed anti-liberals from T.S. Eliot to Patrick Deneen, but which even drips into the work of the Christian right’s more anodyne spokesmen, like Ross Douthat. This framing of liberals as gnostics is important for what it authorizes its proponents to do. When your enemies are pursuing a chiliastic agenda—one, as Vermeule would have it, in which abortion is the “holiest sacrament”—then you may as well go all out in pursuit of your own paternalistic millenarianism.
I would like to say that Vermeule’s representation of progressive liberalism as a corrupt theological crusade is classic projection. And indeed at crucial moments in the book where Vermeule has led us to expect his arguments against progressivism or living constitutionalism, we are instead confronted with paranoid name-calling. Once he labels the “liberal political theology” that weaponizes law in a “ritual drama,” while seeking the “ultimate valorization of will at the expense of the natural reason,” then he alleviates any felt burden for persuasive argument. But if we can set aside the crusading element, Vermeule’s work poses important questions for the left, too. For many on the left are in fact eager to accept the basic posture of Vermeule’s embrace of a politics explicitly oriented toward something called the “common good.”
The title, Common Good Constitutionalism, masks a deep ambiguity. It is unclear whether Vermeule is arguing that politics must be directed toward a (that is, any) common good, or whether it must be directed toward the common good. In his most liberal moment, Vermeule claims that “the common good is, above all, a structure of justification.” Law is legitimate to the extent that it is a reasoned attempt to promote a common good. Interpreted as an analytic point, this is difficult to deny. Governments must set ends in order to act, and setting ends means taking stands on what counts as good to do. It involves picking winners and losers. But this is not an especially novel claim. And it is unlikely that Vermeule’s point is meant to be this merely analytic one that a state is always acting for some good. His intellectual ambitions are far greater than that. (One hint of this is that he ridicules legal positivism for having passed from an era of vitality to its dotage as a “mere thesis of analytic philosophy.”)
Vermeule means that law is legitimate to the extent that it is a reasoned attempt to implement the common good. This is the only reason he gives for why Obergefell v. Hodges, the Supreme Court case legalizing same-sex marriage, was wrongly decided. Obergefell was wrong because it “distorts the essence of the natural institution” of marriage. The same sub-rosa invocation of a weaponized Catholicism underpins Vermeule’s argument that the First Amendment does not protect blasphemy, and that principles of subsidiarity justify limited dictatorship in moments of exception (which, he admits, “sounds alarming”). Are there other consequences he knows better than to publish in a book? Surely for women and gender minorities, for Jews and Muslims and really for anyone who doesn’t embrace Vermeule’s conservative brand of Catholicism, this is an urgent question, and it is one that Vermeule conspicuously avoids when publicly answering his critics.
It might be tempting to reply from the left that Vermeule is structurally correct—that he just has the wrong conception of the common good. In other words, progressives and leftists would do well to join Vermeule in his criticism of liberalism’s proceduralist temerity, and to embrace the obvious truth that politics is about forming a vision of the good and then pursuing it. And indeed, many on the broad left, from the mainstream to the margins, have embraced the language of the common good. Cory Booker’s 2017 book United offers the senator’s thoughts on, as the subtitle has it, “Advancing the Common Good.” Defenders of progressive policies like the Green New Deal often invoke the language of the common good. Congressman Ro Khanna has argued in this magazine that “when you talk about Medicare for All, that’s the common good.” Meanwhile, important actors in the labor movement have rallied around the idea of Bargaining for the Common Good: building support for unions by portraying the fights for new contracts as an opportunity for unions to promote the good of the wider community.
Vermeule’s rejection of liberal individualism is bound to have some appeal to these progressive politicians and movements. Vermeule, unlike many in the Democratic Party establishment since the 1990s, recognizes the humanitarian and environmental catastrophes that have resulted, in part, from instrumentalizing a libertarian conception of rights as trumps over public legislation. It is common ground between right and left today that neoliberalism has thoroughly hollowed out public institutions, leaving rising generations atomized, lonely, alienated, mostly hopeless and holding the bag. In the face of this, here in the twilight of neoliberalism (if indeed we have made it that far), a call to return to a “common good” politics is nigh irresistible.
But the embrace of the concept by a conservative Catholic integralist like Vermeule might also inspire us in a more indirect way—by forcing us to think harder about what we mean by pursuing a politics of the “common good.” There are, it is plain upon reflection, two components to a “common good”: commonness and goodness. As I see it, the force of the critique of individualism is its recognition that we lack a “common” politics. The obvious response is consequently to form the idea of and to work toward commonness. But it is a mistake to think, as both Vermeule and many on the left seem to do, that we can only conceive a genuine political community as one in which we all cohere around a shared vision of what is good. We can and should aim to conceive a common politics that is not yet a politics of the “common good.”
Even Vermeule balks at an uncompromising idea of a common good. This explains his repeated, anxious insistence that the common good must be “understood as itself including the good of individuals” and that the “common good of family, city, nation” is “itself the good of individuals.” But he never gives any reason to accept this assertion. Nor could he, for it is false. It is a cruel joke to insist that the good of a trans child includes the gender rigidity of Vermeule’s common good. Nor is the problem unique to Vermeule’s vision. Labor unions have an uphill battle convincing the public that bargaining for higher wages is in everyone’s individual interest. Making that case distorts both the point of collective bargaining and the interests of non-parties to the resulting contract. Any acknowledgment of the agonism of democratic politics concedes the point.
Perhaps the idea is better put by saying we need to ask everyone to learn to identify with the common good. The possibility of society rests on the possibility that people can come to see their interests as, in some respect, subordinate to the common interest. That’s true enough. But there are several ways to interpret it. On one interpretation, the goal is to identify a conception of the good that is so compelling that everyone should spontaneously accept it. But there is another option: not to ask people to identify with a conception of the good, but to identify with each other.
The idea of a common good is at best an indirect response to the problem of a lost sense of the possibility of collective political action and communal life. This is because a call to the common good is, first and foremost, a plug for some conception of the good, and only later an appeal to people to identify with that good. The ideal is that you really nail it and articulate a good with which people are bound to identify. Vermeule’s patriarchal integralism obviously isn’t it, but perhaps democratic socialism is. One’s task as a political actor, on this view, is to figure out how to bring people around to agree that the common good really is their own, individual good. Politics becomes about trying to get people to agree with an idea or a goal. But the goal is “common” only in the very thin sense that it is something on which people can converge.
Socialism can be thought of in this way. The “common good” it identifies will involve a rich set of public goods, common ownership, emancipation from patriarchal and racial hierarchies and freedom from the destabilizing dynamics of capital. Liberalism, too, is often thought of in this way—only the “common good” liberalism holds up is either so shopworn and frail or so clearly a thin disguise for the interests of capital that it is unable to command allegiance except under extraordinary and exceptional circumstances of, say, postwar prosperity. This is the liberalism whose first face is the liberalism of fear, or worse, the liberalism of cowardice. This is the global liberalism that settled for the NGO-managed regime of minimalist civil and political human rights, the liberalism that neurotically fails to make any crisis count while flying the false flag of #Resistance.
But there is an alternative to thinking of socialism or liberalism in terms of a politics of the common good. One which, as the arch-liberal philosopher John Rawls taught, frames the original drama of politics as a space in which we decide together what we are going to do. Thinking of politics as what we are going to do together directs us not primarily to a goal, but to each other. Genuinely acting together—building or preserving a world of which we can each claim authorship—also means finding common ground, forging shared and inclusive visions. Even Vermeule feels anxiety that the common good is impersonal, abstract and potentially alienating. So he lies: he pretends that each of us will blissfully receive deliverance. The truth is that achieving commonness is neither easy nor guaranteed. It requires compromise and trust: as organizers and activists know, it is often only in the course of real interactions, forming fragile relationships with actual people, that we discover our aptitude for solidarity, for making others’ needs our own.
A politics of commonness turns first not to an ideal but to relationships. It begins with solidarity and a commitment to cooperation. It requires, we must admit, something like hope that this cooperation can ultimately cohere to a sufficient degree to allow collective action. Hope that by expressing and demonstrating solidarity with one another—by doing things for each other, even things we don’t quite agree are worth doing for their own sake—shared goals and priorities will emerge. We have to show others that we’re on their side. Of course, any politics of solidarity is threatened by the fact that our common world has already been hollowed out; any idea of those to whom solidarity is owed is likely to appear at first as unacceptably partial and tribalistic. This could either doom sincere efforts at building coalition, or brand them irredeemably with the marks of fascism. Therefore, a central task for the left is not simply to spell out a platform of the common good to which we can all flock. It is also, and I think more importantly, to grow and nurture the social bonds that allow us to take risks for one another. It is to find a way for a common politics of solidarity to be inclusive and sustainable.
After decades of interest-group pluralism, of public-choice critiques of democratic decision-making, of hiding our values under facially nonsensical doctrines like “substantive due process,” and of what seems to be the insatiable liberal thirst to cater to the hard-headed median voter at the center of the center, we are all looking for something real to grab hold of in politics. Kant, a student of the same natural-law tradition Vermeule seeks to restore, called this need to grab hold of something “orientation,” and he considered the question of whether we are able to orient ourselves in thought to be the crucial factor in whether enlightenment will proceed or whether it will stumble over the forces of mystification. And while it is tempting to think that one can only orient oneself by finding something fixed in the distance—a polestar—to strive toward, this is not so.
In an electrified Queensbridge Park in that distantly hopeful October 2019, Bernie Sanders made this palpable. Another way to orient yourself, Bernie observed, is not to look to the heavens for a stirring ideal, but to look to your left, to your right, and to ask yourself whether you are willing to fight for and with the people standing next to you, for someone you don’t know. Solidarity, in other words, can be its own source of orientation and direction in politics. I’ve always understood the kind of political virtue Bernie advocates to be a willingness to fight for what your neighbor needs because she matters, not because you agree that what she needs is part of the good. Nurturing or, if need be, rebuilding the bonds that connect us to one another is the first step toward a renewed politics.