PROCESS IS NOT SUBSTANCE:

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. More on that later.

Vermeule's provocative book has attracted a good deal of attention. Common Good Constitutionalism is heralded in some quarters (and denounced in others) as an avant garde critique of "originalism"--the notion, popularized by Justice Antonin Scalia in the 1980s, that judges should interpret the Constitution in accordance with its original public meaning--that is, what the document was understood to mean at the time it was enacted. Instead, Vermeule offers an alternative model of government: Elected officials and bureaucrats should act based on their own sense of what would best promote the common good rather than being constrained by the text of the Constitution. Vermeule defines "common good" as "the flourishing of a well-ordered political community," with the goal of achieving "peace, justice, and abundance" (which includes "economic security"). This sounds like New Age utopianism, the realization of which requires centralized power and invites the exercise of broad subjective discretion--precisely the opposite of what the Framers intended.

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