Common good constitutionalism

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Thomas Aquinas, whose definition of law forms the basis for common good constitutionalism Saint Thomas Aquinas Reading.png
Thomas Aquinas, whose definition of law forms the basis for common good constitutionalism

Common good constitutionalism is a legal theory formulated by Harvard law professor Adrian Vermeule that asserts that "the central aim of the constitutional order is to promote good rule, not to 'protect liberty' as an end in itself". [1] Vermeule describes it as an attempt to revive and develop the classical legal tradition by understanding enacted law as a positive application of background natural law principles. [2] Within this tradition, he claims law is defined as "an ordinance of reason promulgated by political authorities for the common good." [2] Vermeule states that law in this sense is "not tethered to particular written instruments of civil law or the will of the legislators who created them" [1] 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. Vermeule says that these principles include "a candid willingness to "legislate morality." [1]

Contents

Common good constitutionalism, as first advanced by Adrian Vermeule in 2020, has been described as a derivative of integralism, both of which were created "to combat the legitimate societal threat of modern liberal individualism and reintroduce the spiritual common good into our political and legal discourse." [3] Vermeule himself argues the notion natural law theory is either just coterminous with Catholic political theory is "both historically and theologically erroneous". Vermeule highlights that historically, natural law theory originates with Greek and Roman philosophers, largely before Christianity became dominant. Theologically, Vermeule argues that "Catholicism itself holds that the natural law is written in the hearts of all men, and is in principle accessible to the universal natural reason common to all". [4]

Common good constitutionalism is opposed to both originalism [5] and liberal legal theories such as a living constitution. [6]

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". [1]

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. [7] [8] 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." [9] Jack Goldsmith has praised Common Good Constitutionalism as "the most important book of American constitutional theory in many decades". [7]

However, notable originalist scholar Randy Barnett criticized the theory as subversive of America's founding principles. [10] Conservative columnist George F. Will described Vermeule's "common-good constitutionalism" as "Christian authoritarianism — muscular paternalism, with government enforcing social solidarity for religious reasons." [11]

Notable common good scholars include Adrian Vermeule, Conor Casey, and Michael Foran. [12] [13] [14] [15]

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". [16] 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. [17] : 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. [17] 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. [17] 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 subjugation of the individual to the community. Rather, it is the unification of individual and community goods that leads to personal and social flourishing. [17] 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." [18] Thus individual goods or rights must be justified in light of their contribution to the flourishing of the community. [2]

Reception

The concept of common good constitutionalism has sparked considerable debate and disagreement within the academic and legal communities.

Support

Many natural lawyers have welcomed it as a valuable contribution to legal theory. University of Chicago legal historian Richard Helmholz described Common Good Constitutionalism (Polity, 2022) as a "serious contribution to some of the most pressing legal debates of our times ... written ... with clarity and skill." [19] University of Texas law professor Sanford Levinson described it as "truly an important book deserving wide readership and intense discussion" [20] while University of Michigan law professor Richard Primus saw potential in its "simple and powerful frame" but felt the book "stops short of fully describing the common good that Vermeule envisions." [21]

Writing in the Modern Law Review , University of Glasgow legal scholar Michael Foran said the theory offers "powerful critiques of the foundational assumptions of liberal constitutionalism". [22] University of Georgia law professor Eric Segall wrote that common good constitutionalism offers a "critique of the never-ending debates between originalists and living constitutionalists--debates that have not furthered constitutional discourse in a helpful manner." [23]

One scholar noted its potential relevance for environmental law, stating that "[E]nvironmental advocates can benefit both from considering the common good constitutionalist approach in its own right and as a catalyst for action." [24]

Various practicing lawyers have praised common good constitutionalism as positively contributing values and rationales that are perceived by some to be missing from the political and judicial discourse. [25] [26] [27] [28]

Criticism

Common good constitutionalism's grounding in a Catholic moral framework has led to charges that, in practice, it is inherently theocratic. [29] David Dyzenhaus has heavily criticized Vermeule's conception of Common Good Constitutionalism, hailing it an "authoritarian" idea seeking to instill "Christian theocratic rule". [30] He criticizes Vermeule for invoking "justification [via] a body of allegedly timeless and universal principles that animate right-wing Catholics and Evangelicals in the US", and for "worshipping the executive" which can put those ideals into practice. [31]

Linda C. McClain has criticized Common Good Constitutionalism for the moral positions which underpin the conception of the common good adopted by its advocates. In particular, the enthusiasm for restrictions on abortion and reproductive rights and heavy reliance on jurists who endorse "the exclusion of women from full participation in civic, political, and economic life" make her doubt whether women's rights are reasonably secure under the providence of the common good; the prevalence of 'natural law' values which promote segregation and discrimination, and the fact that Vermeule and his associates are "notably silent about problems like religiously-inspired racism and white supremacy" give rise to further concerns that Common Good Constitutionalism, in practice, advocates for a view of ethics palatable only for religious conservatives who share Vermeule's own moral values. McClain expresses a "profound doubt that a free and equal people ... would submit" to the moral framework which common good constitutionalists promote. [32]

Former White House Counsel under Ronald Reagan Peter Wallison criticized Vermeule for failing to define "the common good." Wallison also stated that the political order formulated by common good constitutionalism "is highly authoritarian, perhaps even totalitarian" citing Vermeule's assertion that: "Constitutional concepts such as liberty and equality need not be given libertarian or originalist readings." [33]

Legal theorist Martin David Kelly has raised several challenges to Common Good Constitutionalism, including that the relationship between the highly abstract conception of the common good and the concrete policy outcomes that Vermeule advocates is unclear, and that Vermeule's book lacks proper engagement with the academic literature on the common good (and on natural law theory more generally). Kelly notes that there "are many who think that, at least in some parts of the world, we have gone too far in promoting individual autonomy at the expense of our mutual interests and that, if we’re going to solve existential problems like climate change and global pandemics, some rebalancing is needed" but concludes that "anyone hoping to find, in CGC, a well-researched and thoughtful reflection on how we should perform this kind of delicate rebalancing exercise will be disappointed. Vermeule’s scholarly contribution is too thin — in failing to engage with the literature, and in leaving so many key questions unanswered (or entirely unaddressed) — and, as a political manifesto, it is unlikely to persuade any well-informed ‘floating voters’ to embrace his vision of Vermeulitania". [34]

See also

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References

  1. 1 2 3 4 Vermeule, Adrian (31 March 2020). "Beyond Originalism". The Atlantic.
  2. 1 2 3 Casey, Conor; Vermeule, Adrian (2022-02-09). "Myths of Common Good Constitutionalism". Harvard Journal of Law and Public Policy. 45 (1): 103–146. SSRN   4030763.{{cite journal}}: CS1 maint: date and year (link)
  3. ↑ Frohnen, Bruce P. (14 April 2022). "Common Good Constitutionalism and the Problem of Administrative Absolutism". Ohio Northern University College of Law. SSRN   4083882 . Retrieved 13 June 2022.
  4. ↑ Vermeule, Adrian. "The Common Good as a Universal Framework". Balkinization. Retrieved 29 August 2022.[ user-generated source? ]
  5. ↑ Baude, William; Sachs, Stephen E (January 2023). "The 'Common-Good' Manifesto". Harvard Law Review. 136 (3): 861–906.
  6. ↑ Ward, Ian (9 December 2022). "Critics Call It Theocratic and Authoritarian. Young Conservatives Call It an Exciting New Legal Theory". POLITICO.
  7. 1 2 "Common Good Constitutionalism". Polity. Retrieved 2022-06-11.
  8. ↑ "The Future of Conservative Constitutionalism". National Review. 2021-09-17. Retrieved 2022-06-11.
  9. ↑ "Marching Orders | R. H. Helmholz". First Things. May 2022. Retrieved 2022-06-11.
  10. ↑ Barnett, Randy E. (3 April 2020). "Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution". The Atlantic.
  11. ↑ Will, George F. (May 29, 2020). "When American conservatism becomes un-American". The Washington Post . Retrieved June 10, 2022.
  12. ↑ "CGC Symposium". Harvard Journal of Law & Public Policy. 2022-08-30. Archived from the original on 2022-10-31. Retrieved 2022-10-31.
  13. ↑ Casey, Conor (2020). "'Common Good Constitutionalism' and the New Debate over Constitutional Interpretation in the United States". Public Law (4): 765–787. SSRN   3725068.
  14. ↑ Hammer, Josh (Summer 2021). "Common Good Originalism: Our Tradition and Our Path Forward" (PDF). Harvard Journal of Law & Public Policy . 44 (3): 917–959. SSRN   3860301. ProQuest   2568310479.
  15. ↑ McLaughlin, Dan (19 August 2021). "Explaining Common-Good Originalism Does Not Help Its Case". National Review.
  16. ↑ Aquinas, Thomas. Summa Theologica.
  17. 1 2 3 4 Vermeule, Adrian (2022). Common good constitutionalism : recovering the classical legal tradition. Cambridge, UK. ISBN   978-1-5095-4887-3. OCLC   1266642815.{{cite book}}: CS1 maint: location missing publisher (link)
  18. ↑ United States v. Tabor, NMCCA No. 202100046, 46
  19. ↑ Helmholz, Richard (May 2022). "Marching Orders". First Things. Retrieved 29 August 2022.
  20. ↑ Levinson, Sanford. "Adrian Vermeule's rejection of "modern" constitutional theory". Balkinization. Retrieved 29 August 2022.[ user-generated source? ]
  21. ↑ Primus, Richard. "The Other 630,000 Words". Balkinization. Retrieved 29 August 2022.[ user-generated source? ]
  22. ↑ Foran, Michael (May 2023). "Rights, Common Good, and the Separation of Powers". The Modern Law Review. 86 (3): 599–628. doi: 10.1111/1468-2230.12769 . SSRN   4179424.
  23. ↑ Segall, Eric (2 March 2022). "Ten Observations About Adrian Vermeule's Book 'Common Good Constitutionalism'". Dorf on Law.[ user-generated source? ]
  24. ↑ Quigley, Brian. "Common Good Constitutionalism and the Future of Environmental Law" (PDF). Vermont Journal of Environmental Law. 23 (4): 349–373. Retrieved 29 August 2022.
  25. ↑ Whitehead, Daniel. "A Jurisprudence of Hope". Anchoring Truths.[ user-generated source? ]
  26. ↑ Blacklock, Evelyn. "A Jurisprudential Red Pill: Part II". Anchoring Truths.[ user-generated source? ]
  27. ↑ Neu, Jacob (5 August 2022). "Common Good Constitutionalism for the Working Lawyer". Ius & Iustitium. Retrieved 29 August 2022.[ user-generated source? ]
  28. ↑ Sabater, Aníbal (August 2022). "Lawyers as Common Good Servers". Ius & Iustitium. Retrieved 29 August 2022.[ user-generated source? ]
  29. ↑ Talbot, Margaret (7 February 2022). "Amy Coney Barrett's Long Game". The New Yorker.
  30. ↑ Dyzenhaus, David (4 April 2020). "Schmitten in the USA". Verfassungsblog. doi: 10.17176/20200404-131214-0 .[ user-generated source? ]
  31. ↑ Dyzenhaus, David (7 March 2022). "The Snake Charmers". Verfassungsblog. doi: 10.17176/20220308-001230-0 .[ user-generated source? ]
  32. ↑ "Balkinization: The Common Good as a Universal Framework".[ user-generated source? ]
  33. ↑ "Review: Common Good Constitutionalism". American Enterprise Institute - AEI. Retrieved 2023-02-17.
  34. ↑ Kelly, Martin David (2024-03-04). "Challenging common good constitutionalism Common Good Constitutionalism: Recovering the Classical Legal Tradition , by Adrian Vermeule, Polity Press, 2022, 270pp: Common Good Constitutionalism: Recovering the Classical Legal Tradition, by Adrian Vermeule, Polity Press, 2022, 270pp". Jurisprudence: 1–23. doi: 10.1080/20403313.2024.2311599 . ISSN   2040-3313.
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