Common Good Constitutionalism. Adrian Vermeule

broader legal background of natural law, general and traditional legal principles, and the law of nations. The classical law incorporates positive law, but rejects any commitment to positivism in a jurisprudential sense, regardless of any distinctions between harder or softer, exclusive or inclusive versions of positivism. (As explained later, I follow Dworkin in believing that inclusive versions of positivism and originalism converge entirely with non-positivism and non-originalism; they are essentially ways of saving face at the level of names and labels while abandoning all the important substantive positions.)

The Role of Prudence

The common good, on this view, is a type of justification for public action. It does not, by itself, prescribe any particular legal institutions or rules. Leaving aside cases of intrinsic evils, which place deontological side constraints on all public and private action, the common good must be applied to a set of particular circumstances by means of the faculty of prudential judgment – more specifically, the virtue that is called “regnative prudence.”²⁰ This is the prudential judgment, oriented toward justice, of a public authority who is charged with the care of the res publica, whether by election, delegation, or some other mode of selection. This prudence is by no means unstructured discretion. It is given shape by an account of the ends for which discretion must be used, that of promoting the good of the whole community as a community – not merely as an aggregation of individual preferences. In other words, discretion may never transgress the intrinsic limitations of legal justice. The obligation of the public authority is to act according to law, meaning that the public authority must act through rational ordinances oriented to the common good.

      Of course, nothing in the nature of law guarantees, or could possibly guarantee, that the public authority will in fact always act for the common good. But that is true whatever theory of law we hold; it is to demand too much of law that it exclude the possibility of bad or even tyrannical government. Rather every polity must work out for itself institutional forms and customs that orient public authority toward the common good, at least roughly and on the whole. Legal theory as such, by its nature, necessarily assumes that the prevailing order is at least not wholly tyrannical.

Determination – Of the Constitution and Within the Constitution

In the classical tradition, regnative prudence is closely linked to the concept of determination – the process of giving content to a general principle drawn from a higher source of law, making it concrete in application to particular local circumstances or problems. I will explain this crucial concept in detail in Chapter 1. Briefly, the need for determination arises when principles of justice are general and thus do not specifically dictate particular legal rules, or when those principles seem to conflict and must be mutually accommodated or balanced. Those general principles must be given further determinate content by positive civil lawmaking. There are typically multiple ways to determine the principles while remaining within the boundaries of the basic charge to act to promote the common good – the basis of public authority. By analogy, an architect who is given a general commission to build a hospital for a city possesses a kind of structured discretion. The purpose or end of the commission shapes and constrains the architect’s choices while not fully determining them; a good hospital may take a number of forms, although there are some forms it cannot take.

      So too at the level 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. Such matters are left for specification that gives concrete content to the operative, small-c constitution (which is not necessarily the same as the formal written Constitution even in polities that have the latter). Call this determination of the constitution.

      This agnosticism at the level of institutions, in turn, has two aspects: agnosticism about institutional design, and about the allocation among institutions of authority to interpret the constitutional scheme. Parliamentary 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, or even any such scheme at all. The common good takes no stand, a priori, on the well-known debate over political constitutionalism versus legal constitutionalism,²¹ so long as the polity is ordered to the good of the community through rational principles of legality.²²

This broad agnosticism does not mean that there are no boundaries whatsoever; it just means that the boundaries are set by the nature of law itself, as an ordination of reason to the common good. Certain institutional arrangements, mostly science-fictional and horrific, will be ruled out even if no one set of arrangements is uniquely specified. But they will be ruled out because they are arbitrary and unreasoned, and thus do not participate in the nature of law, not because the common good directly commands particular institutional forms. Likewise, strictly aggregative-utilitarian arrangements will be ruled out by the non-aggregative nature of the common good, an example being a substantial class of invisible-hand arrangements justified as an indirect way of maximizing aggregate utility.²³ But the ruling out of certain arrangements leaves a wide scope for choice that adapts institutional forms to local circumstances.

      So far I have been talking about determination of the constitution. At another level, there is also determination within or under the constitution. Particular sets of institutions (among which authority has been allocated) give further specification to general constitutional principles of the common good, such as principles of solidarity and subsidiarity and others to be discussed here. Indeed, the process of determination is iterative and continues to ever-more detailed levels, as we will see. The legislature and executive, for example, may agree on a general statute giving some specification to a general legal principle, and in turn delegate to administrative agencies the authority to determine the general provisions of the statute. The agency may do so by a binding regulation, which may then require further interpretation, and so on.

General and Particular Claims

An important corollary is that one has to distinguish (1) general claims about constitutionalism ordered to the common good from (2) specific constructive interpretations of a given constitutional order that aim to put that order, as it develops over time, in its best light. I have called the former the general part of this book, the latter its particular part. I presuppose here, incorporating previous work by reference, a particular constructive interpretation that fits-and-justifies our own developing constitutional order. In that interpretation, the American small-c constitutional order has come to feature broad deference to legislatures on social and economic legislation and broad delegations from legislatures to the executive. In operation, moreover, lawmaking is effectively centered mainly on executive government, divided in complicated ways between the presidency and the administrative agencies (including both executive agencies and independent agencies). The executive and administrative state can and does act according to the rule of law, constituted in important part by principles of regularity in lawmaking that I will discuss in later chapters. Indeed, by acting through reasoned law, our executive-centered order can be ordered to the common good.

      That particular interpretation of our own constitutional order, however, is separable from the general claims about the nature and principles of constitutionalism also offered here. Agreement with the general part does not necessarily entail agreement with the particular part. One may subscribe to the general framework of common good constitutional interpretation without subscribing to the full, particular interpretation of the path of American public law that I have laid out. The failure of some commentators to distinguish general claims about the nature of constitutionalism from specific claims about the determination of the American constitutional order has produced serious confusion, and one of my aims here is to clear that up.