In an essay for a symposium in The American Mind responding to Harvard Law professor Adrian Vermeule’s call for a “Common Good Constitutionalism,” James Wilson Institute deputy director Garrett Snedeker sympathizes with Vermeule’s call for a “reading of the Constitution that references moral judgements” but cautions against replacing our constitutional deference toward judicial supremacy with executive supremacy. In his article, Vermeule suggests that Common Good Constitutionalism would lead to a powerful executive at the head of an expansive bureaucracy. Snedeker argues that Vermeule’s conception leaves no room for internal debate between the branches of government, with the public left at the mercy of the “internal morality” of the administrative state. As an alternative, Snedeker proposes a natural law constitutionalism achieved through a renewal of the separation of powers doctrine. According to Snedeker, the common good and the constitutionality of government action are best determined through an “ongoing conversation between the branches” of government rather than by a single supreme branch, whether it be the judiciary or the executive.
Some quotes from the article:
“I am sympathetic to Vermeule insofar as he wishes to restore a reading of the Constitution which references moral judgments broadly aligned with the natural law but not found explicitly in the Constitution’s text. In his pursuit of this goal, however, Vermeule places the cart before the horse.”
“Does Vermeule look to the American Founders or perhaps Lincoln as exemplars? No. The reason is that while Vermeule’s moral reading of the Constitution aligns with the vision of the American Founders, his view of the separation of powers does not.”
“…ultimately Vermeule’s scheme subjugates wide swaths of legislative and judicial power to the executive with an enlarged bureaucracy that supplants interbranch deliberation.”
“Conservative lawyers ought to renew their faith in an originalism that encompasses a wide berth of natural law, and have confidence that judges, along with legislators and an executive, may make reference to ultimate values in constitutional deliberations.”
You can read the full article here.