Harvard Law School
In Common Good Constitutionalism, Adrian Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of maintaining a constitutionalism that emphasizes aggregating popular preferences, limiting government, and securing individual rights, he promotes a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. For the common good constitutionalist, a government is established primarily to do good things for people. It envisions an active government, including a strong president, a strong administrative state, and judges exercising reasoned judgment about which results would contribute to the general welfare, correctly understood, not necessarily as understood by the American founders.
In this article, we argue that Vermeule’s version of common good constitutionalism is a species of positive constitutionalism, and these two types of constitutionalism are neither new nor inconsistent with American traditions. Both the Declaration of Independence and the Constitution’s preamble assume a government dedicated chiefly to public purposes. The version of antiliberal common good constitutionalism offered by Vermeule, however, is not appropriate to our circumstances of moral pluralism, and would not be acceptable to our morally and politically diverse and divided people.
We begin with two points on which we agree with Vermeule: the necessity for a “moral reading” of the U.S. Constitution rather than an originalist reading and a positive constitutionalism instead of a view of the Constitution as simply a charter of negative liberties. We then raise several concerns about Vermeule’s disruptive project: (1) the historical role of appeals to natural law and divine law in justifying sex and race inequality, including in family law, marriage, and civil society; (2) Vermeule’s caricatured depiction of what he calls “progressive constitutionalism” and his emphatic rejection of autonomy as a basis for Due Process liberty; and (3) the seeming absence of the role of deliberation by the people about the common good and of appreciation of reasonable moral pluralism in his conception of common good constitutionalism. We close by sketching an alternative liberal common good constitutionalism for our morally pluralistic and politically polarized people.
Linda C. McClain & James E. Fleming,
Toward a Liberal Common Good Constitutionalism for Polarized Times
Harvard Journal of Law & Public Policy
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3692