Common Good Constitutionalism

= concept and book

The Concept

Ius & Iustitium:

"A specter is haunting constitutional theory—the specter of the common good. The hallmark of the classical legal tradition is that law, to be law, must be rationally ordered to the common good of the political community. We argue, as do others, that the classical legal tradition be explicitly revived, adapted, and readopted as the intellectual underpinning upon which officials and jurists understand the purpose and ends of political authority, law, and Constitutions. The foundation and rapid success of legal theory blogs like Ius & Iustitium, and research projects like the Common Good Project based at Oxford University, are testament to renewed interest in these questions.

Among both conservative “originalists” and progressive living-constitutionalists, considerable alarm has been voiced in response to such ideas. In April 2020, one of us published a short essay critiquing the dominance of originalist and progressive approaches to law and constitutional interpretation in contemporary legal thought, and calling for an embrace of ‘common-good constitutionalism’. It is fair to say the essay sparked heated debate and a rapidly growing response literature—some sympathetic (including a forthcoming piece by the other present author) but others hostile. In a rare joint-defense alliance, both originalist-libertarians and progressives condemned the idea as “dangerous.”

In this post, we suggest that several of the most common critiques of the revival of the classical tradition are based on serious misconceptions and tendentious, question-begging claims, especially for the superiority of originalism."

(https://iusetiustitium.com/myths-of-common-good-constitutionalism/)

Discussion

Conor Casey & Adrian Vermeule:

"Common good constitutionalism respects posited law and does not “substitute moral decision making for law.” It is entirely question-begging to say that interpretation in the classical tradition “departs from the text” or “substitutes morality for law.” Rather the classical tradition, in appropriate cases, looks to general principles of law and the ius naturale and ius gentium precisely in order to understand the meaning of enacted positive lex. Critics attempt to stipulate, without argument, that this approach represents a decision to do something other than law, but this is tendentious. Instead the classical approach is itself a mode of interpreting law, rightly understood.

On the classical approach, in other words, the law in general (ius) itself includes considerations beyond the enacted text of any particular law (lex). Positive civil lawmakers are strongly presumed not to wantonly violate background norms of reason that are constitutive of the nature of law. The background principles of ius themselves enter into and help to determine the meaning of lex. This does not at all mean that the classical tradition “ignores the text” or “pursues an activist agenda” or anything of that sort. Enacted texts deserve great respect as determinations of the legitimate public authority, but the law is broader than their temporary and local commands, and it is presumed that those commands can be and should be harmonized with the background ius.

Likewise, on this conception, the law (ius) is not anyone’s “arbitrary preferences.” There are right answers about what the law holds, although of course particular officials (not merely judges) can get the law right or wrong in particular cases. For Catholic legal scholars in particular, it is simply inadmissible—inconsistent with the whole tradition—to imply that law has no objective content beyond the text and original understanding of particular positive laws, or that ius is nothing more than the interpreter’s subjective and arbitrary desires.

Some argue that even if positive law is a determination of background legal principles, including natural law, it should be interpreted independently of that background in the interests of stability and durability. This is a sort of half-truth. The classical approach itself recognizes that interpreters of law typically should not venture an all-things-considered assessment of political morality from first principles; interpretation is always limited and conditioned by institutional roles, legal presumptions and standards of review, default rules, and other legal mechanisms for promoting institutional settlement and stability. Moreover, the very nature of determination is that background principles do not fully specify the content of positive law. Conversely, however, it is impossible for enacted legal texts (lex) to be interpreted in complete autonomy from the broader sources of law (ius). As both Aquinas and (much later) H.L.A. Hart argued, the limits of legislative foresight ensure that enacted texts will always contain crucial gaps and ambiguities, or that the provision the lawmaker laid down for standard cases will diverge from the common good in unusual cases. Hard cases are inevitable, and will have to be resolved by appeal to legal principles that help give meaning to the positive texts themselves (lex)—principles that are themselves very much part of law (ius).

The constitutional oath poses, rather than resolving, the question how “the Constitution and laws” should be interpreted. The argument for positivism and originalism from the constitutional oath is transparently circular, despite elaborate efforts to infuse it with methodological content. In itself, swearing to respect “the Constitution and laws,” or any similar vow, does not say anything about how the Constitution should be interpreted. Any such argument is always parasitic on the smuggling-in of suppressed, independent assumptions. Indeed, the constitutional oath argument for originalism is self-refuting, for the same reason originalism generally is self-refuting: as has been made indisputably clear by recent scholarship, the Framers themselves were not originalists. They were classical lawyers. Originalism is a creation of the post-WWII era, mainly of the 1970s, that has invented a tradition projecting itself back onto the past.

Common good constitutionalism does not entail judicial or executive supremacy. Advocacy of common good constitutionalism, and the classic legal tradition underpinning it, is emphatically not the same as advocating a particular allocation of institutional and interpretive power between different branches of government. The concept of determination applies not only at the level of particular legal rules, but at the level of institutional design of the whole constitutional order. The common good in its capacity as the fundamental end of temporal government shapes and constrains, but does not fully determine, the nature of institutions and the allocation of lawmaking authority between and among them in any given polity. Thus parliamentary, semi-presidential, and presidential systems; constitutional monarchies and republics; all these and more can in principle be ordered to the common good.

Likewise, the common good does not, by itself, entail any particular scheme of (for example) judicial review of constitutional questions. The common good takes no stand, a priori, on the debate over political constitutionalism versus legal constitutionalism, so long as the polity is ordered to the good of the community through rational principles of legality. A constitutional order where judges are bound to defer to reasonable determinations in the public interest by the legislature and executive (perhaps under legislative delegation) can itself be entirely conducive to the common good. It takes grave illiteracy about the classical legal tradition to suggest that it necessarily mandates a form of strong judicial supremacy.

Both of us happen to be sympathetic to the view that in particular polities, under given conditions, there are forms of constitutional ordering—centered around robust executive government—that are likely to be particularly conducive to pursuing the common good under contemporary socio-economic conditions. But this sort of view is not itself dictated by the classical legal tradition; it is an independent, constructive interpretation of the path of the law in some particular polity or other. The critics miss that questions of institutional design are not settled a priori. They are largely prudential determinations made with a view to securing the common good in the socio-economic conditions of a particular polity.

Rights (properly understood) are critical to common good constitutionalism. Rights are critically important to common good constitutionalism. The crucial distinction, however, between classical legal and modern juristic conceptions involves the question of the justification of rights. Even where rights may be held and asserted by individuals, such rights may be justified in strictly individualist terms or instead in terms of the common good, which is also the good of individuals, their highest good. Property rights, for example, may be justified either on individualist and autonomy-based grounds, or instead on grounds that emphasize their contribution to the flourishing of the community.

The latter sort of justification for rights is the ordinary case for the classical account of law. On the classical conception, rights are iura (the plural of ius) because ius is justice—affording to each what is due to each. Crucially, what is due to each—to individuals, families, associations – on the classical view, is itself determined by the common good, right from the ground up. Here the contrast with liberal theory is critical. It is not true, of course, that liberal theory takes no account of collective interests. But it takes account of them (1) aggregatively, as a summation of individual interests (“the greatest good of the greatest number”) and (2) as an override to rights justified in individualist terms, as when liberal jurisprudence talks of a “public order” override to rights determined elsewhere.

On the classical conception, by contrast, the common good enters into the very definition of rights themselves, from the beginning. There is no question of “overriding” the rights of individuals and families—what is due to them—for the common good. Rather it is a question of tailoring the scope of rights to the common good because that is the justification that already animates those rights, at every stage. The issue is not balancing, but specification and determination of the right’s proper ends and, therefore, its boundaries or limits. Deference to the political authority within reasonable limits—the “margin of appreciation” of human rights law—is built into this conception from the start, rather than tacked on as a controversial addition.

Common good constitutionalism is not uniquely vague or indeterminate. It is irrelevant that there was, is and will be disagreement between classical lawyers over the content of the common good and the natural law, in hard cases. The same is chronically true of the positive civil law, indeed of any body of law (whether lex or ius or both) that is more than trivial. Disagreement, by itself, is neither here nor there, and it is hardly unique to the natural law or the common good. Every year apex courts across the world give ample illustration that a body of lawyers may split almost down the middle as to the meaning of positive laws, yet without undermining the belief of any of those judges that there is nonetheless a right answer.

As Richard Helmholz puts it, partial indeterminacy “is true of virtually all fundamental statements of law – Magna Carta, the Bible, the United States Constitution, for instance. They have not lost their value or forfeited their respect among lawyers despite long continued variations in the conclusions to be drawn from their contents.” And, Helmholz continues, “natural law itself did not claim to provide definitive answers to most legal questions that arose in practice.” Rather it provides general principles that must be rendered concrete by determination."

(https://iusetiustitium.com/myths-of-common-good-constitutionalism/)

The book

* Book: Common Good Constitutionalism. by Adrian Vermeule.

Review

by Bernard Keenan:

“This is the context for Common Good Constitutionalism, a book by Adrian Vermeule, Ralph S. Tyler Professor of Constitutional Law at Harvard Law School. Vermeule, like JD Vance and others who associate themselves with the New Right, is a convert to Catholicism, and advocates political strategy based on Catholic doctrine. To that end, Vermeule advances an theory of integralism, proposing it as a constitutional model, and expressly tying it to the New Right in an article for Compact magazine.

Vermeule writes:

‘The New Right isn’t identical with Trumpism, and it is internally diverse and to some degree conflicted; it includes strands such as so-called national conservatism, a traditionalist Red Toryism or Blue Labourism and political Catholicism. These sub-movements often disagree, but they broadly converge on the ideas that government isn’t the only possible enemy; that “private” corporate power, tech monopolies, banks engaged in ideological policing of financial access, woke universities, and other nongovernmental bodies are at least as worrisome as overweening state power; that widespread impoverishment, immiseration, family breakdown, sexual adventurism, overdosing, environmental degradation, and spiritual anomie might be problematic, and that public action can do something about these crises; and generally that public authority is right and just when devoted to the common good, the classical conception of the proper purpose of government. This last strand of thought has become so pronounced that many now refer to “common-good conservatism.”’

This makes sense of the alliance between elements of the left-critical tradition and the far right, even fascist elements of the New Right. Put briefly, the book has two main elements: a critique of liberal and conservative judicial positivism in the jurisprudence of the US Supreme Court, a critique of pluralist liberal democracy and individual freedom as an end in itself, and the outline proposal for transposing Catholic social doctrine and elements of the natural law theory of Thomas of Aquinas into an expressly ‘postliberal order’. As Vermeule has stated quite clearly: ‘it is a matter of finding a strategic position from which to sear the liberal faith with hot irons, to defeat and capture the hearts and minds of liberal agents, to take over the institutions of the old order that liberalism has itself prepared and to turn them to the promotion of human dignity and the common good.’

The idea of ‘common good constitutionalism’ is rooted in what Vermeule calls the classical legal tradition, abbreviated to CLT. For the purposes of administrative and constitutional law, the ‘temporal common good’ (bonum commune) is:

‘(1) the structural political, economic, and social conditions that allow communities to live in accordance with the precepts of legal justice, combined with (2) the injunction that all official action should be ordered to the community’s attainment of those precepts, subject to the understanding that

(3) the common good is not the sum of individual goods, but the indivisible good of a community ordered to justice, belonging jointly to all and severally to each.’ (30).

In other words, the measure of legitimacy that should apply to all governmental action, and legal evaluation thereof, concerns the attainment of the necessary conditions for realising the common good in a defined community. Drawing on the ragion di stato tradition that he attributes to Giovanni Botero, Vermeule holds that the common good consists of a kind of trinitarian knot of ‘justice, peace and abundance’, each of which is both a condition and consequence of the others. These values he finds in various treaties and statutes, including the list of justifications for legitimate state interference with qualified rights (such as privacy and family life, freedom of thought, conscience and religion, and freedom of expression) found in the European Convention of Human Rights (see, respectively, Articles 8(2), 9(2), 10(2)). (31)

The book then offers examples of these values as manifested in American constitutional and administrative law to show that where administrative government has required justification against libertarian, small-government challenges based on the US Constitution, courts have relied on various formulations of the public good to justify the necessity and rightness of governmental power to the growth and happiness of the community, and indeed that it underpins the preamble to the Constitution. (32-39) Vermeule argues that the resources for American judges to adopt a ‘common good’ approach can be located within the history of American jurisprudence, and therefore justifiable related to the existing American order. Principles derived from the ius commune and ius gentium, key doctrinal theories derived from natural, already exist within US common law as latent resources that could be reactivated today (Chapter 2: The Classical Legal Tradition in America). He dismisses both ‘progressivism’ and ‘originalist-positivism’, the broadly defined liberal and conservative approaches currently hegemonic in the American legal order, as creatures of the post-Hobbesian, Lockean inheritance.

But this is by no means a project aimed at judicial empowerment. The task of determination – that is, of deciding on the specificities of what the common good entails in a concrete situation – falls primarily to the authority of the executive and legislature. They must be oriented to the common good, and the courts must in turn recognise their legitimate authority to make authoritative determinations. Only where an institution acts ultra vires its competence, or in an unreasoned, arbitrary manner, or where its actions have no ‘imaginable public purpose’, does an authority act outside of the law. Common good constitutionalism thus implies a smaller role for judicial interpretation of substantive questions of justice than contemporary liberal judicial approaches. Judicial deference to the determinations made by administrative agencies thus arises not from positive constitutional procedural rules, but flows from the higher order of substantive good that the state exists to promote (151-154). Similarly, the theory does not permit judges to overturn positive legal ordinances in the name of natural rights or natural justice. Rather it is a mode of interpretation that is oriented to the broader structure of common good as justification: where judges are required to interpret the correct meaning of a statute, precedent, or constitutional principle in ‘hard cases’, they should do so in a manner oriented to the common good, rather than towards other values such as individual liberty, textual ‘originalism’, or the judge’s personal concept of what social and cultural norms should apply.

Vermeule writes that a range of institutional orders can theoretically be oriented to the realisation of the common good, and therefore considered just. (47) It follows that any order not oriented to the common good is tyrannical. There can be a role for democracy in such orders, not because the will of the individual is the locus of natural political rights as presupposed by liberal social contract theorists, but because it allows the expression of consensus (or acclamation of the leader), and this makes for more effective government. Democratic forums are necessary, because participation in the community is a key element of human flourishing and dignity, but democracy is empowered only insofar as it is oriented towards realising the common good. Legislatures need not be democratically elected as democratic consultations can comfortably co-exist with aristocratic rule. Neither the measure of legitimacy nor of abuse of power turn on formal institutional designs, nor on the abstract rights of citizens. (47-51). There is no place for pluralism here. Different ways of life are tolerated only insofar as they do not conflict with the core determination of the common good – which is, as we have seen, anti-liberal, anti-pluralist, and in Vermeule’s ideal situation, based on Catholic social doctrine.

The question of the abuse of power here is similarly not limited to strict positivist rules of public law. Private actors, corporations or individuals, may be challenged in law if they abuse their economic power and freedoms. Judges may be held to have abused their powers of review by limiting government action in the name of the good; in a federal system, state or local governments may abuse their power by resisting federal determinations of the good; and national or federal government may abuse its power through non-intervention into situations where it is required for the good. (50-51) Indeed, governance as such should be organised around the principle of ‘subsidiarity’, a key principleof the Catholic Church’s social doctrine. Under ‘subsidiarity’, society is composed of ‘cells’, units of organisation and authority that are ordered hierarchically from the individual to the community and associations, to local or regional institutions, up to the ‘superior’ order of the state (or empire). Horizontally, there are ‘lower-order’ societies that are, in sociological terminology, functionally differentiated and essentially equal in authority. Subsidiarity holds that life should be managed at the lowest possible levels of society, so that individuals grow and flourish within their communities. This principle is spelled out more clearly at paragraphs 185-186 of the Compendium of the Social Doctrine of the Catholic Church.”

(https://criticallegalthinking.com/2022/05/23/baptizing-the-state-vermeules-common-good/)