Thursday, January 5, 2023

"Politics by Other Means: The Jurisprudence of 'Common Good Constitutionalism'"

This forthcoming essay may interest some readers; the abstract:

Adrian Vermeule proposes an alternative to the two dominant schools of constitutional interpretation in the United States: originalism and “progressivism” (i.e., “living constitutionalism”). Against these approaches, he argues courts (and other institutional actors) should explicitly interpret the text of the Constitution, statutes, and administrative decrees with an eye to promoting the “common good” as understood in what he calls the classical tradition, meaning that it should be understood in distinctly non-utilitarian and non-individualist terms. Officials should do so using something like Dworkin’s method of “constructive interpretation” (hereafter CI), in which the aim is to reach the decision that would follow from legal principles that enjoy some degree of explanatory “fit” with prior official acts (court decisions, legislation, etc.), but in which the inevitable explanatory gap is filled by reliance on those principles that provide the best moral justification for the institutional history of the legal system. For Vermeule, those moral principles are ones that embody the natural law’s idea of the “common good” rather than (as he puts it) Dworkin’s “moral commitments and priorities…which [are] of a conventionally left-liberal and individualist bent.”

I argue that: (1) Vermeule’s conception of the “common good” is neither plausible, nor even defended, except by misleading appeal to a supposed “natural law”; unfortunately (2) there is no reason to think a “natural law” exists, and, in any case, the “natural law” tradition does not speak univocally on what constitutes “principles of objective natural morality (ius naturale)” contrary to the misleading impression Vermeule gives; and (3) Dworkin’s CI is not so easily severed from his moral commitments, and in any case, Vermeule never gives a reason to think it provides (even on Vermeule’s preferred version) a more plausible account of what courts and agencies have been doing than the legal positivist view of law, which he mostly misunderstands and consistently maligns. In the absence of any serious jurisprudential foundations, Vermuele’s so-called “common good constitutionalism” is just “politics by other means,” or, as Judge Pryor put it, “Living Common Goodism.”

Jurisprudence | Permalink