Common good constitutionalism
 | This article, Common good constitutionalism, has recently been created via the Articles for creation process. Please check to see if the reviewer has accidentally left this template after accepting the draft and take appropriate action as necessary.
Reviewer tools: Inform author |
Common Good Constitutionalism, or the Classical Legal Tradition, is a theory of legal interpretation that focuses on recognizing enacted law as a positive application of background natural law principles.[1] According this tradition, law is defined as an ordinance of reason promulgated by political authorities for the common good.[1] Law in this sense is "not tethered to particular written instruments of civil law or the will of the legislators who created them."[2] Instead, it focuses on the rational determinations of the common good embodied by those written instruments, where the determinations are among background natural law principles.
History
In an article in The Atlantic in March 2020, Harvard Law School scholar 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".[2]
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.[3][4] 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."[5] Jack Goldsmith has praised Common Good Constitutionalism as "the most important book of American constitutional theory in many decades".[3] However, notable originalist scholar Randy Barnett criticized the theory as subversive of America's founding principles.[6] Conservative columnist George F. Will described Vermeule's "common-good constitutionalism" as "Christian authoritarianism — muscular paternalism, with government enforcing social solidarity for religious reasons."[7]
Principles
Common good constitutionalism begins with Thomas Aquinas' definition of law: "an ordinance of reason made for the common good by him who has charge of the community, and promulgated."[8] Within this definition, positive law is treated as a promulgated ordinance of reason, where "ordinance of reason" invokes that law which is ascertainable reason, or the natural law. The 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.[9] 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.[9] 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.[9] As Judge Stephens wrote in his concurrence in United States v. Tabor, "[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."[10] Thus individual goods or rights must be justified in light of their contribution to the flourishing of the community.[1]
References
- ^ a b c Casey, Conor; Vermeule, Adrian (2022-02-09). "Myths of Common Good Constitutionalism". Harvard Journal of Law and Public Policy, Vol. 45, No. 1, 2022 103-146.
- ^ a b Vermeule, Adrian (2020-03-31). "Beyond Originalism". The Atlantic. Retrieved 2022-06-11.
- ^ a b "Common Good Constitutionalism". Polity. Retrieved 2022-06-11.
- ^ "The Future of Conservative Constitutionalism". National Review. 2021-09-17. Retrieved 2022-06-11.
- ^ "Marching Orders | R. H. Helmholz". First Things. Retrieved 2022-06-11.
- ^ Barnett, Randy E. (2020-04-03). "Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution". The Atlantic. Retrieved 2022-06-11.
- ^ Will, George F. (May 29, 2020). "When American conservatism becomes un-American". The Washington Post. Retrieved June 10, 2022.
- ^ Aquinas, Thomas. Summa Theologica.
- ^ a b c 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) - ^ United States v. Tabor, NMCCA No. 202100046, 46