THE rIGHT IS THE lEFT:

 The status quo has drawn criticism from both left and right. Into this fray, Adrian Vermeule wades in his new book, Common Good Constitutionalism (2022), an ersatz hybrid of progressive and pseudo-conservative sentiment.

Vermeule teaches law at Harvard, one of the nation's most elite universities. He specializes in administrative law--a Progressive Era innovation that some critics contend violates the Constitution's separation of powers--and constitutional theory. Constitutional "theory" often has even less to do with the Constitution than constitutional "law." Oddly, for a subject taught in law schools, the field is dominated by moral philosophers, exemplified by John Rawls and Ronald Dworkin. The attraction of constitutional theory, from the legal scholar's standpoint, is that the canvas is blank, the inquiry is unhindered by text or history, and the only limits are the scholar's ambition and ingenuity. Vermeule, who holds an endowed chair at Harvard Law School, exudes plenty of both.

Each theorist has his own personal preferences, and Vermeule is no exception. He is an ardent devotee of the administrative state (having co-written a bold defense of it in 2020's Law & Leviathan) and a recent convert to Catholicism, which coincides with his turn toward what some observers call "integralism," a movement that "seeks to subordinate temporal power to spiritual power--or, more specifically, the modern state to the Catholic Church." Vermeule's embrace of integralism aligns him with so-called post-liberals led by Patrick Deneen on the Catholic right, as well as some quirky proponents of "natural law" jurisprudence. (Deneen enthusiastically blurbed Vermeule's book.)

In the 1970s, the nascent field of constitutional theory was dominated by liberal law professors seeking to provide cover for the activist decisions of the Supreme Court during the 1960s under the leadership of Chief Justice Earl Warren (which, unfortunately, continued under his successor, Warren Burger). The left's defense of extra-constitutional rights was termed advocacy of "a living Constitution," suggesting that the document is (or ought to be) malleable enough to be putty in the hands of liberal judges. Decades later, libertarian and even conservative scholars got into the act, hoping to inspire judicial activism in a different direction. [...]

Vermeule's jargon-laden critique, incorrectly perceived as coming from "the right," has attracted attention for its man-bites-dog novelty. Vermeule aims to discredit originalism altogether and replace it with his bespoke legal order. The moral framework of Vermeule's integralism (summarized in a 2020 essay he wrote for The Atlantic, entitled "Beyond Originalism") is hostile to the libertarian bent of the Supreme Court's current jurisprudence on free speech, abortion, sexual liberties, and related matters.

Despite charges that Vermeule advocates "a kind of reactionary substantive due process," he is not conservative in any meaningful sense. He represents an odd hybrid of conventional progressivism (support of federal power, administrative agencies, economic regulation, labor unions, and environmental protection) and traditional morality typically associated with social conservatives (opposition to abortion, LGBTQ rights, same-sex marriage, pornography, etc.). Coincidentally, his "constitutional theory" mirrors those views. As Robert Bork wrote in 1982, "the judge who looks outside the Constitution always looks inside himself and nowhere else."

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