Friday, May 27, 2022
Multiple Levels in Common Good Constitutionalism
A prominent structural feature on the surface of Professor Vermeule's Common Good Constitutionalism is its two-level presentation of CGC. One reason the book has received such divergent reactions is inattention to this two-level structure.
Level one is Generic CGC. This is in Chapter 1. This part is presented—and is to be taken—as correct, even if not entirely at face value. Vermeule deliberately leaves underdeveloped the key concept of the common good with respect to the God and religion, for example. This can be misleading even in ways that the author may not have intended. In any event, Generic CGC can more or less be taken as true except for what it explicitly disclaims addressing.
Level two is Vermeulean CGC. This in Chapters 2 and 5. The author explicitly advises the reader about the detachability of Vermeulean CGC from Generic CGC. Among other features, this insulates Generic CGC from warranting rejection just because Vermeulean CGC is shown to warrant rejection.
So far so good. As a demonstration of the intelligence and strategic foresight of the author, this structural feature has shown its utility in anticipating and enabling facile authorial responses to the divergent reactions to the book thus far.
The divergence is that devotees warmly embrace it at Level One while critics denounce it at Level Two. I'm inclined to believe that both reactions are correct. Generic CGC is to be embraced; Vermeulean CGC is to be abjured.
This inclination is unsurprising, of course, given Vermeule's inability to distinguish Generic CGC from the classical natural law grounding Jeff Pojanowski and I were advocating years ago for fidelity to the U.S. Constitution as positive law. Generic CGC is just another label for the same understanding of classical natural law we and many others rely upon for St. Thomas Aquinas's understanding of law in terms of its four causes. We took up residence on Level One a while ago and are always happy to welcome others.
Pojanowski and I have differences with Vermeulean CGC, to be sure, but then again these are exactly the kinds of differences one would expect from a correct understanding of Generic CGC. As for Generic CGC as a new label for the classical Thomistic understanding of law's essence, the problem with Vermeule's new branding is its emphasis on just one of law's four causes: the common good (final cause). This tends to efface the necessary contributions of law's other three causes: ordinance of reason (formal cause), made by one with public authority/care for the community (efficient cause), and promulgated (material cause).
My advice for people trying to make sense of Common Good Constitutionalism is to pay close attention to the multilevel presentation throughout. This includes the distinction between Generic CGC and Vermeulean CGC. But it also includes attentiveness to other features of Vermeule's arguments both in the book and elsewhere that suggest the book's intentional incompleteness. Roughly contemporaneously with the publication of Common Good Constitutionalism, for instance, Vermeule published with co-author Conor Casey an article titled Myths of Common Good Constitutionalism. At the operational level for lawyers and judges, this Myths piece is much more helpful than the book that Myths tells you how not to read.