A Harvard Law School professor named Adrian Vermeule has caused a sensation with an article advocating “common good constitutionalism” in The Atlantic. The libertarian right has reacted with horror, but blames progressives for his rejection of historical norms. The left’s reaction can be simply described as “Holy fascism, Batman!”
“Common good constitutionalism” has both legal and political components, as follows:
1. Vermeule’s ideal government consists of a powerful president, supported by a vigorous and ultra-competent bureaucracy; Congress is a minor player in this scheme. The president’s most important task would be to create a virtuous country by stamping out practices that (according to Vermuele) are self-evidently evil, such as abortion, homosexuality, and pornography. Corrupt, tyrannical, or incompetent presidents could be removed through periodic elections. Otherwise, there would be no effective checks on presidential power.
2. Legally, this approach requires a rejection of the prevailing right-wing originalist/textual approach to constitutional law. Judges would rely on natural law instead of history, precedent, and the text of statutes and the Constitution. Vague language in the Constitution, such as the general welfare clause, would be reinterpreted to make this possible.
My reactions to this are as follows:
1. Elizabeth Warren has to know this guy. It certainly would be fun to watch her debate him.
2. The intersection between “common good constitutionalism” and the unitary executive theory are obvious. Bill Barr would approve.
3. Vermeule acknowledges that a degree of coercion would be necessary to bring about his virtuous state. He thinks it would be worth it. It is unlikely that the majority of Americans agree. So how could this happen? He doesn’t lay out a blueprint, but it presumably involves voter suppression on a massive scale, probably during an emergency.
4. Left-wing jurisprudence is not responsible for this train of thought. The left criticizes right-wing originalism, not because it relies on history and the wording of texts, but because it inevitably involves unprincipled cherry-picking, and leaves out too much of the story. To use one painfully obvious example, freezing American values in 1787 means disregarding the outcome of the Civil War and the Reconstruction amendments. That is not a fair reading of the American experience. “Common good constitutionalism,” on the other hand, is a complete rejection of American history; if there is one thing the Founding Fathers all would have agreed on, it was the rejection of a theocratic state with an elected king.
How does this relate to Trumpism and the GOP factions? More on that in a later post.