'Common Good Constitutionalism' and the New Debate over Constitutional Interpretation in the United States

Abstract

Drawing on the natural law tradition and arguments developed in his extensive work on administrative and constitutional law, in a series of recent essays the prominent public law scholar Adrian Vermeule has argued the time has come for legal conservatives in the United States to set originalism aside. Instead, Vermeule argues that conservatives should approach constitutional interpretation in an openly morally infused way and open to using state power to promote the common good-an approach to constitutionalism Vermeule dubs 'common-good constitutionalism'. Vermeule's proposal immediately sparked extensive and heated responses across both conservative and liberal legal circles. This essay is the first to offer a sustained scholarly analysis of this burgeoning debate. I have two main objectives: one explanatory, one critical. The first objective is to offer a clearer account and appreciation of what proponents of common-good constitutionalism are advocating. This is necessary as I suggest that, unfortunately, many preliminary critiques of the concept have been awash with analytical imprecision and overstatement. I therefore wish to clarify the core terms and concepts pertinent to Vermeule's brief essay, by digging deeper into the political context from which the call to adopt common good constitutionalism emerged, before outlining its core operative principles and their broader intellectual underpinning. My second aim is to critically analyse Vermeule's arguments by addressing the initial wave of criticism hostile to the proposal. Contrary to these critiques, I suggest Vermeule's proposal is entirely consistent with the natural law legal tradition and emphatically not an argument for authoritarianism unbound from legal and democratic constraint or concern for human rights. I conclude critiques starting from the premise common good constitutionalism is effectively a form of anti-constitutional authoritarianism are not only inaccurate, but deeply unhelpful to fruitful engagement over the core questions Vermeule's arguments raise for public lawyers.