A scholar of administrative law and constitutional law and theory, Professor Adrian Vermeule ’93 has written the new book “The System of the Constitution” (Oxford University Press), in which he explores how individuals and larger institutions together shape the constitutional order. “[I]nstitutions, groups and other aggregates … can have emergent properties that cannot be deduced by inspecting their components or members in isolation, one by one,” he writes. “Those properties arise from the interaction and relationship of the components.” Vermeule recently spoke about his book and an event in London that featured discussion of his ideas.
Your book draws on systems theory, which isn’t usually applied to the law. How did you get interested in the subject?
I came across a sophisticated yet accessible account of systems theory in the work of Scott Page, a political scientist with the University of Michigan and the Santa Fe Institute. As I dug further, it turned out that there had been some attempts to apply earlier versions of the theory to politics, but there were precious few legal applications – one notable exception being a fine article on federalism by Jenna Bednar, also of the University of Michigan. Overall, it seemed an ideal opportunity to arbitrage a useful and interesting body of social-science work into legal theory.
What do you mean when you describe the constitutional order as a “system of systems”?
I mean that the constitutional order is composed of nested systems at two levels. On the first level, individual actors, such as officials, interact to make up an institution, such as Congress or the Supreme Court; each such institution is a system of interactions. On the second level, the institutions themselves interact to form an overall system – the “system of the constitution” that appears in the book’s title. At either level, the body of theory I bring to bear can be used to illuminate the relevant interactions. Surprising effects can occur because of the two-level character of the constitutional order. An example the book discusses, drawing on some interesting work in political science, is that even if almost all the members of the Supreme Court are politically biased in one particular direction, they may behave as though they are impartial under certain conditions. If the pool of statutes enacted by Congress is biased in the opposite direction, the Justices will have no choice but to approve all and only those statutes that make everyone better off.
You write that judging is an interdependent activity. How would the makeup of a court influence an individual judge’s action?
It depends upon what the judge’s goals are. But the general point is that if other judges have a different philosophy or approach than you do, it might not be best to do whatever you would want to do assuming that everyone else agreed with you; it might instead be best to depart from your own ideals. To choose one of the book’s examples: suppose you are a strong believer in following precedent, but you share the bench with ideological judges who will overrule any precedents that contravene their ideology. If you stick to your precedent-based approach, then the other judges will destabilize the law, and furthermore the set of overrulings will display an ideological skew, so the law will tend to drift in a particular direction. It might then be best to engage in a strategy of retaliatory judicial activism, or at least threaten to do so. In other words, threaten to overrule precedents that the other judges like, unless they behave as though they are impartial precedent-followers. Such a threat might induce the other judges to follow precedent even if they would otherwise refuse to do so, and might thereby actually move the law closer to your ideals, whereas mindlessly sticking to your ideals, come what may, could end up producing the worst possible results.
Can you point to an example of how this interdependence has played out in an actual court decision?
The dilemma I mention above – just one example of systemic interdependence on multimember courts, among those discussed in the book – has been a recurring one in the actual cases. For example, in cases like Payne v. Tennessee (1991), the Rehnquist Court’s conservative justices said that cases involving “property and contract” rights deserve greater protection from overruling than do cases granting criminal-procedure rights. How should other justices react? The discussion in the book outlines the possible strategies in situations of this sort.
You recently participated in a symposium at University College in London about your book. How did British scholars respond to your ideas?
Quite well, I think, at least in the sense that I learned a great deal from the British scholars – both because of the high intrinsic quality of their comments, and because talking about the book’s ideas in the setting of a different constitutional order permitted a kind of useful triangulation, by way of comparison and contrast. Over the past decade or so, the United Kingdom has undergone a rapid series of important constitutional changes – such as a reformation of the House of Lords, increased devolution to Scotland and other sub-polities, and the creation of a separate Supreme Court – but those changes have been piecemeal and uncoordinated, with no systematic attention to interaction effects between or among them. We discussed the idea that, on a systems-theory perspective, this is a cause for concern, and that it would be a good idea, at a minimum, to appoint an informed special committee to attempt a synoptic overview of interactions among all these constitutional developments.