Evelyn Blacklock reviews Prof. Adrian Vermeule’s Common Good Constitutionalism, which argues that both originalism and living constitutionalism have abandoned the classical legal tradition.
“Each year, thousands of new law students enroll in Constitutional Law 101, where they imbibe the view that constitutional interpretation largely comes down to a choice between ‘originalism’ and ‘living constitutionalism’ – between divining the putative ‘original meaning’ of the text, usually assisted by law-office history, or else reading progressive policy preferences into the broad commitments of the constitution to liberty and equality. In courses on statutory interpretation, students are presented with a similar choice between ‘textualism’ and ‘purposivism’ – following the ordinary or plain meaning of the text, or instead being guided by legislative intent or the putative purpose of the statute….Most students tend to sort themselves into either the Fed Soc camp or the ACS camp, corresponding roughly to the originalist/textualist camp and the living constitutionalist/purposivist camp. A few, not satisfied with the alternatives, sit uneasily on the fence.”
“Common Good Constitutionalism holds out a red pill. In this book, Professor Adrian Vermeule contends that the opposition between the two camps is an illusion. In reality, both sit on the same side of a gulf that separates them from an older and richer conception of law that prevailed in Europe and the Anglophone world (and likely beyond) for millennia, and that prevailed here in the US until as recently as the interwar period.”
“In that older conception, which Vermeule terms the ‘classical legal tradition,’ law is understood as ‘intrinsically reasoned and also purposive, ordered to the common good of the polity and that of mankind.’ Law, in other words, is rooted primarily in reason, only secondarily in the will of the lawmaker; it is rationally intelligible and teleological, aimed at bringing about some objective good.”
“This richer ‘legal cosmology’ shapes familiar concepts in ways that put the classical legal tradition at odds with both originalism and its supposed progressive antithesis. ‘Rights,’ for example, are not conceived as near-inviolable zones of autonomy that ordinarily ‘trump’ state action and can be overridden only in the face of especially compelling government interests….Instead, subjective rights – rights belonging to individual persons that give them the power to do this or lay claim to that – are derivative of objective right (ius), or that which is due in justice to each person. Objective right, in turn, ‘is itself determined by the common good, right from the ground up.’ Thus, ‘the common good enters into the very definition of rights themselves, from the beginning,’ determining their contours and tailoring their scope. In that conception, rights are neither opposed to nor ‘overridden’ by state action, but rather are shaped and defined by the very good at which the society aims.”