A Fox in the Hedges: Vermeule’s Vision of Optimized Constitutionalism in a Suboptimal World
When Isaiah Berlin wrote his famous 1953 book on Leo Tolstoy’s view of history, he began with a line from the ancient Greek poet Archilochus: “The fox knows many things, but the hedgehog knows one big thing.” It is a line that captures two types of intellectuals: those who advance many insular and interstitial ideas, and those who advance big theories that bring a single unifying theme or idea to the world. These two types of thinkers come to mind when reading Harvard Law School professor Adrian Vermeule’s fascinating new book, The Constitution of Risk. Vermeule has said that his “mad ambition” is to offer a unifying constitutional theory to bring order to a field crowded with too many theories. In doing so, he seeks to fulfill what Samuel Johnson once hoped for a new generation in 1770: “deliverance from unnecessary terrours, and exemption from false alarms.” Deliverance in this case is from precautionary rules designed to combat risks that are unlikely to arise and rules that distort decisionmaking by government officials, judges, and other constitutional actors. Vermeule posits that emancipation from such “terrours” can come only with a fundamental shift away from traditional Madisonian concepts in favor of a more modern view of governmental realities. That certainly sounds very hedgehog-like, but on closer examination, Vermeule proves something of a fox in hedgehog garb. Vermeule’s single big idea is to avoid a single big idea in the context of constitutional analysis. In other words, the hedgehog’s advice is to be a fox.
Vermeule’s book is impressive in its detail, and its synthesis of different theories offers a new perspective in approaching some long-standing problems. Regardless of how one views his ultimate conclusions, Vermeule’s unique view of constitutionalism is likely to leave a lasting impact on scholarship in this area. However, an appreciation for the book is found more in what it is than in what it is intended to be. Vermeule’s critique of past theories reveals a type of antitheory theory, or at least a rejection of a single overarching theory of constitutionalism. The considerable value of this book is found in its detail of risk regulation and not in the big theory advanced by Vermeule. That may not be enough for Vermeule’s “mad ambition,” but it should be enough for any reader interested in a penetrating analysis of the role of constitutions in the regulation of risk.
Vermeule’s book advances two distinct propositions. The first (and the greatest contribution of the book) is that constitutions should be viewed as devices for regulating political risks. Those political risks are referred to as “second-order risks,” as opposed to “first-order risks” such as wars, diseases, and other social ills (p 3). Vermeule details how much of the Framers’ debate reflects a view of the Constitution as a regulation of risk in governance (pp 52–87). Vermeule portrays many of these risks as “fat-tail risks” that are “exceedingly unlikely to materialize, but more likely than in a normal distribution, and [ ] are exceedingly damaging if they do materialize” (p 49). Under “maximin constitutional” approaches, Vermeule suggests that precautionary rules can overcompensate for the low-likelihood risks and even cause the very danger that they seek to prevent (pp 71–72). He offers the separation of powers as an example:
Consider the possibility . . . that the separation of executive and legislative powers, erected in part as a precaution against either executive dictatorship or legislative tyranny, is itself a risk factor for dictatorship or tyranny, perhaps because the separation of powers gridlocks the lawmaking system and thus created pent-up public demand for strong extraconstitutional action. (p 80)
While acknowledging that this is a “remote” possibility, it is a suggestion that Vermeule returns to repeatedly in the book in suggesting that limits on presidential power might trigger presidential abuses or the rise of counterrisks (p 80). The suggestion captures Vermeule’s view of precautionary constitutionalism as myopic in its focus on certain risks. The notion of unappreciated or unaccommodated risks is central to Vermeule’s second proposition: the best way to regulate risk is to avoid obsessive views on risk avoidance or precautions and, instead, to allow greater flexibility in addressing the full array of risks inherent in government (p 52). This “optimizing constitutionalism” is an answer to those who frame their understanding of the Constitution along more-rigid precautionary principles (p 24). As will be discussed below, I remain highly skeptical of both propositions, but Vermeule’s nuanced treatment of constitutional risk regulation is an intriguing perspective. While I am unpersuaded by Vermeule’s proposed abandonment of precautionary constitutional rules, his arguments illuminate some of the core issues in this long-standing debate.
Vermeule maintains that his two propositions in The Constitution of Risk are “partially independent” (p 10). I certainly agree that it is possible to accept the first concept of the Constitution as an instrument to regulate political risks without accepting Vermeule’s theory of optimizing constitutionalism. However, it would be more challenging to accept the theory of optimizing constitutionalism without adopting Vermeule’s riskcentric vision of constitutional rulemaking. Indeed, for functionalists, the thrust of optimizing constitutionalism will be highly appealing. Thus, it is not surprising that academics like Professor Cass Sunstein describe the book as “one of the best constitutional law books in the last half-century.” One can disagree with Vermeule (as I do) on his big theory and still greatly value the book (as I also do). However, the second goal of the book in establishing this theory is more revealing for what it does not establish than for what it proposes. It does indeed come down to a question of risk and, as discussed below, what exactly that means. Vermeule divides his work into these two distinct propositions, which I will discuss (and critique) separately. I have also tried to use Vermeule’s own words as much as possible to allow the reader to consider his arguments directly and thereby minimize translation bias.
Part I of this Review briefly discusses Vermeule’s concept of risk regulation in constitutional rulemaking and his distinction between first-order and second-order risks—a subject that I return to at the end of the Review. In Part II, I address Vermeule’s description of precautionary constitutionalism and his use of theories of futility, jeopardy, perversity, and ex post remedies to evaluate its success as a regulation of risk. Vermeule’s discussion of past theories under the rubric of precautionary constitutionalism is a highlight of the book, offering a single conceptual framework running from David Hume to James Madison to contemporary theorists. His critique of precautionary constitutionalism, however, sometimes appears forced and artificial, even considering the largely abstract level of discussion in the work. By defining this prior work as focused on risk avoidance, Vermeule attempts to show how precautionary constitutionalism fails in this purpose, can prove futile in combating those risks that rulemakers “obsessively” fixate on, and can even create new collateral risks (p 187). Moreover, Vermeule engages in arguments that are classic examples of the “reaction rhetoric” described by Professor Albert Hirschman in his classic work on the futility, jeopardy, and perversity theses. While Vermeule seeks to present precautionary constitutionalism “in charitable terms, in order to put them in their best possible light,” (p 28) his analysis reveals “little patience” for opposing constitutional theories that are presented as seeking to avoid a narrow range of risks. Vermeule’s failure to make the best case of precautionary constitutionalism—and particularly the values that it seeks to protect—undermines the credibility of his later arguments in support of his theory of optimizing constitutionalism.
In Part III, I turn to Vermeule’s second proposition in favor of optimizing constitutionalism, including his ultimate description of “virtues” to guide rulemakers in the use of a “mature” optimizing position (p 187). While insular issues like agency decisionmaking may naturally favor the flexible and balanced approach that Vermeule advocates, there remain sweeping generalities even in the “applications” section of the book (see, for example, pp 176–85). The lack of concreteness no doubt fits with Vermeule’s desire to inspire “[c]onstitutional [r]ulemaking [w]ithout a [s]tyle” (p 186); however, it also lacks a certain substance in terms of how the theory can advance decisionmaking. The theory and the related Vermeulean virtues remain underdeveloped to the point that they are difficult to objectively evaluate. While questioning Vermeule’s optimizing position may appear a case for “immaturity,” the vague quality of much of the analysis raises concerns over its viability as an applied theory and the danger of the neutral-sounding risk lexicon hiding inherent bias. Accordingly, I look most closely at Vermeule’s treatment of the recent controversy of recess appointments as a concrete context for evaluating the usefulness of this theory. That application magnifies the concerns over the lack of definition of some of the key terms in Vermeule’s analysis. Yet, his theory does achieve part of what Vermeule desires. For functionalists, it offers a new basis for an approach founded in risk theory. His big idea as no big idea is certainly novel and holds a certain “uncola” appeal in the context of old, labored theories. However, for those who harbor formalist tendencies, it will likely taste a lot like the old Coke of functionalism when you take it to its inevitable finish.
In Part IV, I summarize the problems identified in the two propositions of Vermeule’s work (particularly the second proposition of a unifying, risk-centric theory) into two basic critiques: the uncertain definition and weight given to different types of risks in trade-offs, and the failure to properly account for other constitutional values—particularly in the constitutional structure itself. What should be a compelling discussion of risk avoidance underlying constitutional rulemaking is undermined by the need to overextend this one dimension of government decisionmaking to support Vermeule’s ultimate theory. Ironically, while criticizing those who obsess over theories like precautionary constitutionalism, Vermeule succumbs to the same seduction in trying to advance risk avoidance as the overriding purpose of the Constitution to the exclusion of other organizing concepts. This risk-centric analysis tends to devalue such positive conceptions as deliberative democracy and ordered liberty. Something is lost in the translation of such values into risks. When those risks are addressed, the analysis often seems subjective, if not outcome determinative. For example, Vermeule’s treatment of risks such as aggrandizement reveals not only his own skeptical view of the real danger presented by the rise of a more powerful executive but also the relativistic quality of his risk analysis (p 60). In the end, I am not sold on Vermeule’s elevation of risk as an all-encompassing purpose of constitutional design and rulemaking. Moreover, unless one adopts a more fungible notion of risk, I do not believe that the case is made that precautionary constitutionalism, as Vermeule calls it, is suboptimal for risk. It depends on how one weighs the risks involved in governing, even if one accepts risk analysis as the best measure for success of a constitutional system. Indeed, if one considers certain risks such as aggrandizement as existential threats to a constitutional system, Vermeule’s optimizing constitutional approach hardly seems optimal in any sense, including as a mechanism of risk regulation.
To conclude, I discuss an alternative view of constitutional structure from a more deontological perspective. While the Framers clearly saw constitutional rules as avoiding particular risks, constitutional structure is also tied to normative values and cannot be accurately reduced to a purely instrumental function. Without delving too far into that alternative view, the concern is with the distortive effect of Vermeule’s overarching threshold assumption as to the function of the system. In the end, the reader ends up where she began: trying to understand risk and, more importantly, what Vermeule understands as the risks (and purpose) of constitutional structure.