Common Good Constitutionalism

Saint Thomas Aquinas, whose definition of law forms the basis for Common Good Constitutionalism.

Common Good Constitutionalism is an attempt to revive and develop the classical legal tradition by understanding enacted law as a positive application of background natural law principles. Within this tradition, law is defined as "an ordinance of reason promulgated by political authorities for the common good." According to proponents, law in this sense is "not tethered to particular written instruments of civil law or the will of the legislators who created them" but instead embody rational determinations of the common good, and it is those determinations, as well as the natural law background against which they are made, which constitute the law. Common Good Constitutionalism, as first advanced by Adrian Vermeule in the 2020s, has been described as a derivative of integralism, a similar application of natural law into politics.

History

In an article in The Atlantic in March 2020, Adrian Vermeule suggested that originalism – the idea that the meaning of the American Constitution was fixed at the time of its enactment, which has been the principal legal theory of conservative judges and legal scholars for the past 50 years, but which Vermeule now characterizes as merely "a useful rhetorical and political expedient" – has outlived its usefulness and needs to be replaced by what he calls "common-good constitutionalism".

Common good constitutionalism has garnered a mix of responses, with many praising its recognition of classical legal theories, while others fear that it could lead to judicial fiat. Notably, Richard H. Helmholz, in a review of Common Good Constitutionalism, described it as "a serious contribution to some of the most pressing legal debates of our times." Jack Goldsmith has praised Common Good Constitutionalism as "the most important book of American constitutional theory in many decades". However, notable originalist scholar Randy Barnett criticized the theory as subversive of America's founding principles. Conservative columnist George F. Will described Vermeule's "common-good constitutionalism" as "Christian authoritarianism — muscular paternalism, with government enforcing social solidarity for religious reasons."

Notable common good scholars include Adrian Vermeule, Conor Casey, and Josh Hammer.

Principles

Thomas Aquinas' defined law as: "an ordinance of reason made for the common good by him who has charge of the community, and promulgated." Common good constitutionalism adopts this definition, treating positive law as a promulgated ordinance of reason, where "ordinance of reason" invokes that law which is ascertainable reason, or the natural law.: 3  Natural law provides background legal principles, such as "do good and avoid evil," that are not necessarily determinate as applied to concrete cases. Positive law, then, is made when a public authority makes a practical determination within the scope of the natural law. For example, public safety is furthered by having cars drive on one side of the road, but nothing about public safety inherently requires choosing one side of the road or the other. Thus within the requirements of public safety, the public authority is free to determine a concrete application, that is, driving on the left or right side.

In the context of the judiciary, interpretation of legal texts must then be made in light of the natural law principles made concrete by the text. They must be reviewed for rationality, but so long as the positive law does not offend reason—the background natural law principles—the judiciary should defer to the legislating authority. To return to the driving example, to require driving on the left side of the road does not offend reason, nor does driving on the right. Both further the common good by promoting public roadway safety, and thus either determination by the legislature should be deferred to.

"Common good" is defined not as a utilitarian aggregation of individual goods, nor as a tyrannical subjugation of the individual to the community. Rather, it is the unification of individual and community goods that leads to personal and social flourishing. A Navy-Marine Corps Court of Criminal Appeals judge wrote in his concurrence in United States v. Tabor that "[t]he classical judge would attempt to discern what common good is desired by the statute and recognize that a statute can have a purpose toward the good of the individual, a purpose toward the good of the community, and an additional good in harmonizing the interests between the two. A statute—a lex—is an attempt to codify a higher law that a nation or a people all know to be true and good, even if it were to limit individual freedom in certain circumstances." Thus individual goods or rights must be justified in light of their contribution to the flourishing of the community.


This page was last updated at 2022-06-29 12:49 UTC. Update now. View original page.

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