I read this book for somewhat hazy reasons; perhaps I found the title in a footnote of some paper and it seemed interesting, perhaps I ran across it by doing a search in our library catalog for something else and remembered that someone had once recommended to me another one of Vermeule’s books. But at any rate, I’m glad I did read it, even though the main topic of the book is something that would normally not interest me very much.
The book is basically an attack on the “constitutional” common law, written primarily for (USA
At one extreme we can find the pure originalist position: the constitution should never be changed by anyone. This position is not as crazy as it may look at first glance. Assume that the constitution has survived intact for 200 years (and it has not been ignored during this period). It may then be that the very fact that the constitution has enabled the country to survive for 200 years implies that current constitutional rules are “resilient” – that is, they are broadly adapted to all kinds of circumstances, even if not optimal for any of them. They have been tested by time, with its varied challenges, and come out relatively well. Though different constitutional rules might have produced better outcomes at some points during those 200 years, no other set of rules we could design today would have plausibly produced a better outcome overall. We could perhaps temporarily achieve better outcomes (however defined) by adjusting the rules today, but then we could not be sure that the new rules would be optimal for other, as yet unforeseen circumstances, and we would have to adjust them again and again. And given some assumptions about the likelihood and costs of error, the relative wisdom of the framers versus our current wisdom, and our estimates of the rate of environmental change, it might be that it would never be worth our while to try to change these constitutional rules. We can think of this argument in terms of a trade-off between the benefits of adaptation to current circumstances and the benefits of resilience in changing conditions, given the limits of reason. If our estimates of the benefits of adaptation are low enough, of the resilience of current rules high enough, and of the uncertainty involved in formulating “perfect” rules for current circumstances high enough, perfect conservatism is entirely reasonable. (The earliest version of this argument I know of goes back to Plato’s Statesman, which I discuss extensively here. We also see something like this trade-off in nature: an organism can be too well adapted to its environment to survive drastic changes there. “Generalists” may thrive in changing circumstances, while “specialists” die since they cannot adapt quickly enough to these changes).
But suppose that we do not agree with the pure originalist position. (Few people do). The framers may have been very wise, but they did not foresee everything; and we may have a clearly good idea about how to improve existing constitutional rules (e.g., emancipating the slaves). But the problem still remains, since not every potential change is good: when should constitutional rules be changed, and by whom? The constitutional common lawyers argue that the constitution should (normally) not be changed by legislative assemblies or the “explicit” amendment mechanisms indicated in the constitution itself; instead, it should be changed gradually via the decisions of judges, just as proponents of the “regular” common law argue more generally that law should be changed not via legislative codification but rather through the gradual decisions of judges. Common-law constitutionalism thus tends to be associated with arguments for robust forms of judicial review and a general conservatism on matters of constitutional change, the key assumption being that the limits of reason are less binding on judges than on legislatures or the public, though still quite important.
Vermeule subjects this position to withering (though sometimes repetitive) scrutiny, arguing instead for a position that might be called “Benthamite” or “Thayerian” (as he labels it). On this view, legislatures face fewer epistemic constraints than courts in deciding to adapt constitutional rules to current circumstances, and hence courts should in general defer to them. (Note that this argument does not say much about incentives: it may be that legislatures face fewer epistemic constraints than judges in constitutional matters, but have worse incentives, and it is not clear which constraints would be “binding” in that situation). I am less interested in his ultimate conclusions, however, which are a bit too US-centric (including a plea for including at least one non-lawyer in the Supreme Court for interesting reasons having to do with the virtues of diversity in deliberative groups), than on his general approach to the problem of the limits of reason in politics and law, which is all about trying to figure out how "collective" mechanisms affect those limits.
Vermeule identifies two basic “epistemic” arguments for the constitutional common law position. On one view, the constitutional common law is better than the constitutional law created by legislatures or other explicit mechanisms because it combines the judgments of many judges over time to produce a judgment that is somehow better than the judgments of any individual judge (for reasons having to do with the Condorcet jury theorem, for example, though other mechanisms might be imagined). We can call this the “aggregation” argument. On the second view, which is associated with Hayek and his followers, the constitutional common law is better than the “explicit” constitutional law of legislatures because the process through which it is produced includes a selection “filter” that weeds out bad rules (the litigation and appeals process, for example) in ways that are not possible for explicitly created constitutional rules. We can call this the “selection” argument.
I am not going to discuss in detail all the considerations Vermeule deploys against these arguments. At any rate, it seems to me that the book is written very much like a lawyer’s brief: the constitutional common-law position is attacked from every possible perspective, some of which are less convincing than others. But a couple of points he makes are quite interesting. First, he argues that the “aggregation” arguments tend to suffer from a “nirvana” fallacy, where the benefits of aggregation are assumed to apply only to judge-made law. But in fact laws that are made by legislatures with many people should also benefit from considerations about aggregation (at least assuming equal incentives for information acquisition and sincere voting, which Vermeule discusses in some detail, though not always satisfactorily). And the kind of aggregation over time postulated by common-law constitutionalists may also suffer from informational cascades and epistemic “free-riding”: judges that defer to past decisions at a later time do not add any new information to the law, leaving the first few judges as the real legislators, for example. (“Epistemic free-riding” may also be a problem in legislatures, especially if the legislature is large, since then incentives for information acquisition are smaller. But this is more or less balanced – under some conditions, at least – by the greater epistemic diversity of legislatures, which should improve the quality of their decisions). Second, drawing on some interesting-looking work by Andrei Schleifer, he suggests that there is no plausible “selection” mechanism for the constitutional common law (though he is agnostic on the regular common law) that ensures bad rules get weeded out. Taken together, he is basically arguing that the limits of reason bind judges at least as much, if not more than, as they bind legislators; there are no special advantages to common-law constitutionalism over other forms of constitutionalism, and many apparent disadvantages.
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