Adrian Vermeule recently made a stir with his proposal for a “common-good constitutionalism.” He argued that originalism had “outlived its utility” now that the right had gained power on the federal bench. Instead it was time for a “substantively conservative approach to constitutional law and interpretation.” We got only a few peaks at the substance, however. It included labeling individual autonomy, including abortion rights, as “abominable,” and jettisoning “the libertarian assumptions central to free speech law.”
Responses have examined whether Vermeule’s constitutional theory is defensible, or rather winks more or less subtly at authoritarian or even fascist ideas. But to me the most striking aspect of the argument was not the substance of the values Vermeule would ascribe to the Constitution, but rather the form of his conservative constitutional structure. Vermeule proposes a version of constitutionalism that, much like the Law-and-Political-Economy framework, goes “Beyond the Twentieth Century Synthesis” in abandoning the liberal separation of the state from the “private” spheres of the market and family. In contrast to the LPE approach, however, Vermeule’s constitution puts hierarchy at the center of its moral universe, with a strong executive at the top. In the mirror of Vermeule’s constitutional frame, we can glimpse the progressive alternative.
Common-good constitutionalism “does not suffer from a horror of political domination and hierarchy,” but rather expects that “[s]ubjects will come to thank the ruler” for fostering “more authentic desires.” Vermeule thus emphasizes a pre- or post-liberal form of government in which the people are rightfully subject to the discretionary authority of political leaders. He prioritizes the executive branch over others, favoring “a powerful presidency ruling over a powerful bureaucracy,” which acts as “the strong hand of legitimate rule.”
These structural commitments are in line with the theory of the “unitary executive,” which can be traced back to Alexander Hamilton’s defense of a “vigorous” presidency in the Federalist. That enlarged conception of the office has continued to influence landmark Supreme Court decisions from Chevron to the Travel Ban Case. But there is another thinker who deeply informs Vermeule’s analysis: Carl Schmitt, the conservative critic of Germany’s Weimar Republic who became the crown jurist of the Third Reich before falling out of favor with the Nazis.
For Schmitt, the Weimar Republic showed that liberalism’s commitment to positive law, rational deliberation, and individual rights was too brittle to withstand serious economic and political crises. Parliamentary democracy gave way to a “governmental state” in which the executive rather than the legislature made the important decisions. Schmitt did not bemoan this transition, but rather envisioned a direct connection between the substantive values of the Volk and the bureaucratic apparatus of the state. Vermeule, of course, disavows Schmitt’s Nazism, and instead fastens onto his critique of liberal legalism, as well as his interest in religious-bureaucratic political form. He follows Schmitt in privileging the executive branch as the best vehicle to carry out a conservative ethical vision.
Some of Schmitt’s most prominent opponents on the left offered up models for an alternative, social-democratic economy of political power. Scholars like Hermann Heller and Franz Neumann endorsed the norms freedom, the rule of law, and the separation of powers that constitute the liberal ideal of the Rechtsstaat. But they argued that those norms could only be preserved under the conditions of twentieth-century capitalism by transforming the bourgeois Rechtsstaat into a social Rechtsstaat. Such a social-constitutional state would infuse economic relations with material equality, and ensure that monopoly power did not undermine individual and collective autonomy. In stark contrast to Schmitt, these thinkers prioritized the legislature over the executive, and bound the latter closely to the norms of the former. Because Heller and Neumann’s hope was to institute general, egalitarian norms through democratic processes, the legislature had to play the lead constitutional role. Momentary decisions of a charismatic leader would not suffice to firmly entrench social equality.
This correlation between the left and the legislature, on the one hand, and the right and executive, on the other, also has purchase for us in America today. Conservatism of Vermeule’s and Schmitt’s variety is grounded on authority, discretion, and hierarchy. It relies on the obedience of subordinates to the commands of superiors who know better, have keener judgment, or who command greater allegiance. That vision runs like a red line through reactionary models of both economic and political structure. While the rhetoric of freedom, choice, and competition pervades the American right, its legal interpretations and policies often function to preserve various kinds of concentrated power, exercised by some persons and groups over others. The last forty years of conservative ideological dominance has generated stark social hierarchies: employers now exercise arbitrary power over employees, monopolists control consumers and smaller firms, capital accrues the gains from labor; status hierarchies surrounding religion, sex and gender, and race are conceived to reflect a “natural” ranking of superior and inferior.
Executive-centered constitutional structure works in parallel to such legally sanctioned social domination. It subjects the hitherto “independent” civil service to the strong hand of presidential leadership, displacing various forms of disciplinary competence, administrative due process, and public input with assertions of value by the “Chief Executive.” This affinity for an “unbound” executive has animated conservative constitutional scholarship since Reagan. As Bill Barr claimed in his strident criticism of the Mueller Investigation, the president “alone is the Executive branch,” and subordinate executive officers are merely “his hand.”
Progressives, by contrast, should be steadfastly committed to legislative constitutional forms. That is because democracy is concerned not with the command of a single person but with reaching a decision amongst a plurality of persons. That process respects the equal worth of each participant. It models a form of human association that recognizes autonomy and yet brings people together to identify shared goals and values.
Legislation should be viewed as an iterative process of popular will-formation. David Grewal and Jedediah Britton-Purdy have shown how democratic constitution-making is a legislative act of the sovereign people to erect a government that acts on their behalf. Ordinary legislation replicates this process within the government, as it brings together the several representatives of the people to reach binding agreements and empower marginalized groups. Maggie Blackhawk, for instance, has shown how the Indian Reorganization Act of 1934 helped to “foster power and to promote collective action” by sovereign Native peoples. Legislative rulemaking within the executive branch takes this democratic empowerment one step deeper down, giving affected groups a role in deciding how economy and society are regulated. As Matthew Cortland and Karen Tani have documented, progressives have used the public comment process during the Trump Administration to thwart unjust and arbitrary executive actions ranging from approval of Medicaid work requirements to narrowing the definition of sex harassment in education. Kate Andrias has unearthed precedents in the New Deal for establishing workplace democracy in and through the administrative process. I’ve explored in my own scholarship how this legislative version of agency procedure stretches back to the institutions and ideologies of the Progressive Era.
The legislative left therefore does not ignore or sideline the executive branch, but rather aims to recreate parliamentary values, processes, and organizations within the executive. A corollary to this vision is that the president should not be able to fire executive officers at will, as the unitary executive theory would hold. The scope of the president’s removal power is currently before the Court in Seila Law v. CFPB. An executive branch that honors democratic principles should recognize a qualified equality amongst officials. Officers whom Congress has given rulemaking powers should not be subject to implied direction by the president, but rather should lead a broader deliberative process that incorporates affected publics.
Such a legislative constitutional structure, it should be noted, runs counter to strong tendencies and historical traditions amongst American Progressives. From Teddy Roosevelt and FDR to LBJ and Obama, egalitarian programs have often relied on an empowered presidency. And I don’t wish to malign the important persuasive role the president can play as a spokesperson for the people, nor the movement building potential of executive action. But much is lost in pinning our hopes on a particular presidential candidate and what she or he can accomplish once in office. That approach is particularly likely to fail with a conservative Supreme Court that will strike down “novel” administrative actions, or deny deference on “major questions.”
Progressives and social democrats are concerned with freedom, equality, and solidarity. While there might be temporary victories for such values in the hands of a capable and charismatic president, a durable democratic future must take a form that mirrors democratic substance. If we want to recognize and institute the equality of persons, we must all become legislators.
Blake Emerson is Assistant Professor of Law at the UCLA School of Law.