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Looking for the Common Good with Adrian Vermeule and William Shakespeare
Sczygelski, Lucas P.
Sczygelski, Lucas P.
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Abstract
In a March 2020 essay for The Atlantic, Harvard Law professor Adrian Vermeule called on fellow conservative legal thinkers to renounce the bedrock principle on which Originalism rests—the separation of law and morality. Instead of placing legal reasoning inside an airtight box into which no moral or political exigencies may enter, Vermeule counseled the conservative legal movement to permit moral and legal claims to mingle freely, to drop the drab positivist hermeneutics and embrace a vibrant form of natural law oriented to the “common good.” The essay provoked intense reactions, and in the process Vermeule—an administrative lawyer theretofore known primarily for his robust if increasingly lonely conservative defense of Chevron deference—became something of a legal celebrity on the integralist right. His recent attempt to expand his 2020 essay into a book entitled Common Good Constitutionalism is the subject of this Article. I read Vermeule’s book against Shakespeare’s The Merchant of Venice in an attempt to draw out some of the unsettling ahistorical patness at the center of Vermeule’s theory. Where Vermeule assumes that legal questions can have a single correct solution coterminous with the common good, The Merchant of Venice provides that legal subjects, in their ineradicable and splendid human inconsistency, will have no trouble suggesting others.