I have some questions

My questions concern Adrian Vermeule’s already-much-talked-about argument for “Common-Good Constitutionalism” — especially this paragraph: 

As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule. The state is to be entrusted with the authority to protect the populace from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment. Unions, guilds and crafts, cities and localities, and other solidaristic associations will benefit from the presumptive favor of the law, as will the traditional family; in virtue of subsidiarity, the aim of rule will be not to displace these associations, but to help them function well. Elaborating on the common-good principle that no constitutional right to refuse vaccination exists, constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds — biological, social, and economic — even when doing so requires overriding the selfish claims of individuals to private “rights.” Thus the state will enjoy authority to curb the social and economic pretensions of the urban-gentry liberals who so often place their own satisfactions (financial and sexual) and the good of their class or social milieu above the common good.

The entire paragraph is cast in the future tense: the auxiliary verb “will” appears seven times. But note that it undergoes a transformation. At the beginning we learn about what common-good constitutionalism (CGC, let’s call it) will favor; but most of the paragraph concerns what will happen under the beneficent rule of CGC. Vermeule starts with a dream and then assumes that the dream will come true. 

But what are the chances? How will CGC manifest itself electorally? Will the Republican Party be converted to CGC, or will there be a new party that emerges to promote and embody it? 

More: What is the role of Congress in this vision of CGC-in-action? At one point Vermeule says that “the general-welfare clause, which gives Congress ‘power to … provide for the common Defence and general Welfare of the United States,’ is an obvious place to ground principles of common-good constitutionalism,” but if so, why does he describe how it works exclusively in terms of “a powerful presidency ruling over a powerful bureaucracy”? The whole vision seems to be focused on policies created and overseen by the Executive branch — what need has CGC for Congress?

And if there is no substantive role for Congress, then in what sense is CGC “constitutionalism”? It sounds more like Viktor Orban’s Hungary than the United States of America. It’s hard for me to see how CGC emerges, at least as it’s described here, without significant changes to the Constitution itself, including perhaps changes to the Bill of Rights. (In one mention of rights he puts the word in scare-quotes, in another he writes, “Libertarian conceptions of property rights and economic rights will also have to go.”) What are the rights recognized by CGC? Or, to put the point another and more general way, what is the constitution in relation to which this is constitutionalism? 

Finally: Who, in Vermeule’s vision of CGC, determines what the common good actually is? As I read the essay I kept thinking of Rousseau’s “general will,” which does not know itself and therefore has to be instructed, in a sense created, by Those Who Know. 

April 2, 2020

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