Common Good Constitutionalism. Adrian Vermeule

An Interpretive Argument

How does this classical view of law relate to constitutional theory today? I will not offer an argument about jurisprudence in the technical academic sense. Although I draw on jurisprudential ideas as necessary, I have nothing original to say in that regard.⁸ Neither is this a work of legal history, although I draw on legal history done by others in order to recover the powerful tradition of the common good in American law. Finally, it is not a work of political theory.

      Rather it is written throughout from the lawyer’s point of view, as a work of interpretation. From that point of view, I offer an account that aims to put our constitutional order, including the administrative state, in its best possible light, given our whole history – not merely our most recent history. As against the progressives and originalists, I suggest that the best overall interpretation overall of our public law requires us to revive the principles of the classical law, looking backward so that we may go forward. It is a case of reculer pour mieux sauter. In terms made famous by Ronald Dworkin,⁹ the last few chapters of the chain novel are impossible to square with the arc of what went before. They mar the integrity of the whole, and offer a poor account of our operative constitutional order. The point is not to reclaim the insights of the classical tradition out of nostalgia, but because doing so holds out the greatest promise for a principled and coherent interpretation of our current constitutional order as well as its history.

      It does not follow, of course, that the interpretation I offer need be parochial or ignore the contributions of legal traditions outside the United States. Indeed my project is quite the opposite: it is to recover and revive the profound connections between the classical American tradition on the one hand, and on the other the classical Roman and European tradition, the ius commune, the latter definitely including the Anglo-American common law as a local variant. The book thus has both a general part and a particular part – a duality that is itself typical of the classical legal framework. It speaks both to general principles of common good constitutionalism and to the specific institutions of the American constitutional order. As such I hope it is of interest to lawyers in the Commonwealth nations, Europe, Latin America, and Asia as well.

Methodologically, this work of interpretation draws not only upon the classical and natural law tradition¹⁰ but also, in limited ways, upon the parts of Dworkin’s jurisprudence that are consistent with the classical view of law and that explain and illuminate the latter’s commitments. The principal use I make of Dworkin is negative, invoking him as the unsurpassed modern critic of positivism and originalism in Anglophone legal theory. In my view those withering criticisms have never successfully been answered.¹¹ I illustrate those criticisms of both positivism and originalism with examples from legal and judicial practice: law itself contains general principles,¹² rooted in political morality, whose origins do not seem to depend on any particular act of positive lawmaking; positivism and originalism cannot account for theoretical, as opposed to historical, disagreement in interpretation;¹³ and originalism has never successfully coped with the problem of abstraction, the question of the level of generality at which to read the original understanding.¹⁴

      Dworkin used to urge “moral readings of the Constitution,”¹⁵ implemented through his method of fit and justification.¹⁶ Common good constitutionalism shares the view that the positive provisions of the ius civile, including at the constitutional level, can only be interpreted in light of principles of political morality that are themselves part of the law. And it urges that the classical law is the best of our tradition, with the emphasis on both “best” (justification) and “tradition” (fit). But it advocates a different set of substantive moral commitments and priorities and a different account of rights from Dworkin’s, which were all of a conventionally left-liberal and individualist bent. I emphatically eschew Dworkin’s particular, substantively liberal account of justification, which I will take to be detachable. While interpretation necessarily posits some account or other of justification, it need not posit Dworkin’s own account. I reject his liberal theory of rights, as trumps over collective interests, in favor of a classical theory of rights as ius, founded in the injunction of justice to give to every person what is due to them in a political order devoted to the common good.¹⁷

In general, nothing in my claims turns on narrow and elaborate debates among professional scholars of jurisprudence about the details and development of Dworkin’s thought. I use those of his ideas that have already become part of the common currency of legal theory, in part because they simply describe with great clarity things that are undeniably a part of law (for example, the ubiquity of legal principles). Not coincidentally, those are the ideas that fit like a glove with the classical conception of law that prevailed in America for so long.

The Common Good Defined

      Chapter 1 defines the common good, at successively specific levels – conceptually, legally, and constitutionally. In brief, the common good is, for the purposes of the constitutional lawyer, the flourishing of a well-ordered political community. The common good is unitary and indivisible, not an aggregation of individual utilities. In its temporal aspect it represents the highest felicity or happiness of the whole political community, which is also the highest good of the individuals comprising that community.

      To give this more specific content, I look to the precepts of legal justice in the classical law – to live honorably, to harm no one, and to give each one what is due to him in justice – and to the related ragion di stato tradition in early modern Europe, which articulates the central goods at which constitutionalism should aim. These goods include, in a famous trinity, peace, justice, and abundance, which I extrapolate to modern conditions to include various forms of health, safety, and economic security. I also elicit from the tradition the key principles of solidarity and subsidiarity.¹⁸

      The largest point of the tradition is that public authority is both natural and legitimate – rather than intrinsically suspect, as one might infer from certain strands of the liberal tradition. Yet that authoritative rule is bounded and limited by the very condition that gives it legitimacy: that the ruling authority always act through reasoned ordinances conducing to the common good, to public rather than private interest. As we will see, the requirement of reasoned and public-regarding rule leaves ample scope to adjust the law to changing circumstances, but the fundamental nature of law as reasoned ordination to the common good is unchanging.

Common good constitutionalism, then, is not legal positivism, meaning that it does not identify all law with the rules laid down by those authorized to do so by social conventions; on the contrary, it allows that the truth of legal propositions sometimes depends on the truth of moral propositions. Common good constitutionalism draws upon an immemorial tradition that includes, in addition to positive law, sources such as the general law common to all civilized legal systems (ius gentium) and principles of objective natural morality (ius naturale), including procedural legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.¹⁹

      Here it is easy to misunderstand the place of positive law in the classical tradition. Positive law is hardly lacking; it represents a legitimate specification by the public authority of general principles of legal morality that need concrete embodiment, the specification of local rules that take account of local conditions, and is therefore called ius civile, literally the “law of the city.” Indeed, as we will see, the right and duty of the public authority to determine or specify the content of the positive law imply that the judges or other officials who determine the meaning of law at the point of application are duty-bound to follow a kind of textualism, at least presumptively. But this is not the positivist form of textualism that simply equates law with positive enacted texts; rather it is textualism justified by reference to political morality, the rational ordering of rules to the common good by the public authority. Thus positive enacted texts are always read against the backdrop of, and if at all possible in