Reading the Presumptive Textualism of Vermeulean Common Good Constitutionalism Between the Lines

One of the challenging features of interpreting Professor Adrian Vermeule’s Common Good Constitutionalism that Jeff Pojanowski and I encountered in Recovering Classical Legal Constitutionalism was to assess the extent to which Vermeule’s book is best read esoterically. We decided to respond to the exoteric argumentation on its own terms while also suggesting what we understood to be the main esoteric message. The book, we think, is best understood not as offering guidance for how to operate within and maintain the existing constitutional order in the United States of America that remains tethered to the promulgated Constitution, but rather as a way of facilitating regime change to a different constitutional order. We wrote:

Vermeule’s highly abstract notion of continuity with the original Constitution and its order suggests that he may be more interested in laying the theoretical foundation for a new order than in identifying the law of this one. All told, the book seems less a classical approach to our actual Constitution than a permission structure for a new and improved constitutional order. In this respect, the best reading of Vermeule’s two-level approach in Common Good Constitutionalism is one between the lines.
98 Notre Dame L. Rev. at 460 (emphasis added).

Our citation here was to Arthur M. Melzer, Philosophy Between the Lines: The Lost History of Esoteric Writing (Univ. of Chicago Press 2014).

As an example of a between-the-lines reading, we highlighted continuities between Vermeule’s decision-theoretic textualism in earlier writing and his “presumptive textualism” in Common Good Constitutionalism. We wrote:

The Vermeule of Judging Under Uncertainty did not embrace the idea that interpretation is something like the search for the reasoned ordinance of an actual legislator; rather, he claimed that philosophical arguments about the point of legal interpretation are pointless. This presumptive textualism is a “firmly [rule] consequentialist” exercise in decision-theoretic “interpretive choice.” Though we assume Vermeule, now a classical natural lawyer, is not a rule-consequentialist all the way down, his presumptive textualism still bears the mark of the public-choice inflected method of his earlier adherence to decision theory. Judges are better off if they “stick to the ordinary meanings of texts” (also phrased as “apparent meaning[s]”) since judges are “prone to error.” The classical tradition, by contrast, treats the text as a (very important, but not exclusive) pointer to the legislator’s authoritative, reasoned choice, which in its particularity may be different or more complex than what we find with some exercises of clause-bound textualism.

The extent to which Vermeule believes he has adhered to or departed from his earlier approach to interpretation is beside the point. Something very much like the surface-level, clause-bound textualism of that earlier work enables his ascent to moral readings in response to apparent ambiguity or vagueness that interpreters find when they read text in that fashion. After all, these “highly general and abstract clauses have to be given some content or other.” In Judging Under Uncertainty, judges were not to solve such puzzles with the wide-ranging tools that classical lawyers (and modern textualists and purposivists) use, but rather defer to bodies like administrative agencies or legislatures. Reading between the lines, one sees in Vermeule’s generic account of common good constitutionalism a way forward to a regime in which centralized agencies are the living oracles of the natural law and the common good. Vermeule draws such a picture in the particular “Applications” section of his book. The surface-hugging, clause-bound character of presumptive textualism is crucial for realizing that arrangement, however, since a more detailed search to find the Framers’ reasoned choice may correspondingly limit the remit of agencies (or, if you prefer, legislators) to give some content ordering law to the common good.

98 Notre Dame L. Rev. at 426-47 (emphasis added).

Vermeule contends that what he calls his “classical textualism” “rests … on an institutional claim: for a certain class of decision-makers, under given circumstances, certain goods are best attained by requiring those decision-makers to stick closely to the ordinary, conventional meaning of text.” Instead of understanding the role of text by means of decision theory and a Dworkinian understanding of law, as the Vermeulean interpreter would, Pojanowski and I have argued for understanding legal texts as a material cause of the promulgated law. This metaphysical perspective provides a sounder foundation for the classical legal interpreter, in our view, than decision-theoretic Dworkinianism. A sounder foundation, that is, for continuing to operate within the order we have rather than the one Vermeule aims to midwife.

adjudication-related considerations in Sheetz v. El Dorado

The Supreme Court’s recent decision in Sheetz v. El Dorado County (2024) features a unanimous opinion for the Court by Justice Barrett and separate concurring opinions by three other Justices (Sotomayor joined by Jackson; Gorsuch solo; and Kavanaugh joined by Kagan and Jackson). These separate opinions address themselves in different ways to the narrow scope of what was decided in the opinion for the Court.

The question presented was whether conditions imposed on building permits are exempt from regulatory takings scrutiny because they are imposed pursuant to legislation rather than administratively. The Court answers this question “no.”

Sotomayor (joined by Jackson) wrote separately to note that there is an antecedent question, one not addressed by the Court, which is “whether the permit condition would be a compensable taking if imposed outside the permitting context.”

Gorsuch wrote separately both to note that the Court’s opinion did not address another question and also to suggest that this question had an easy answer. This was the question “whether the Nollan/Dolan test [i.e. the test that governs the Takings Clause inquiry in this context] operates differently when an alleged taking affects a ‘class of properties’ rather than ‘a particular development.’” The easy answer to this question, implied Gorsuch, was “no.”

If this question was so easy, why didn’t the Court address it? It appears that at least three Justices have a different view than Gorsuch. Kavanaugh (joined by Kagan and Jackson) concurred “to underscore that the Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’” The reason to underscore the limited nature of the Court’s decision, presumably, is to prevent others from reading that opinion to have resolved the issue.

From this brief description of the scope of the opinions, the question naturally arises how the Court decided to calibrate the breadth or narrowness of this opinion. The answer to this question is not something that one tries to answer as a matter of constitutional interpretation. The answer turns instead on the nature of the judicial function within the particular place in the judicial hierarchy occupied by the Supreme Court of the United States, together with a justice’s understanding of how best to carry out that function as a single individual on a multimember appellate court with jurisdiction that is both limited and discretionary. To the extent that these kinds of understanding are informed by a distinctive theory, that would be a theory of adjudication rather than a theory of interpretation or law.

Pope Francis’s Remarks to International Federation of Catholic Universities

On January 19, 2024, Pope Francis was scheduled to deliver “a lengthy address” to the International Federation of Catholic Universities. Because he was a “bit short of breath,” he instead got right to the point of what he was going to say and then let his prepared text speak for itself. Here’s what he said viva voce:

I was planning to deliver a lengthy address, but I am a bit short of breath; as you can see, this cold is not going away! I am giving you the text so that you can read it for yourselves. I thank all of you for this meeting and for all the good that our Catholic universities do by communicating knowledge, the word of God and an authentic humanism. Never tire of persevering in the splendid mission of Catholic universities. It is not their confessional status that gives them their identity: that is one aspect, but not the only one. It is perhaps that clear humanism which makes people realize that human beings have values and that these need to be respected. This is perhaps the finest and greatest thing about your universities. Thank you very much.