"resist the tides of liberalism, modernism, and ignorance of tradition which have, in the past century, so harmed the Church and tied her hands in the struggle to advance the social reign of Christ."
"the consequence of this shift [from rights as derivative of duty] is modern individualism. The ancients (meaning Plato, Aristotle, and Cicero, not, say, Lucretius) had been convinced that man can reach his telos only as part of a city, and that the common good of the city is therefore teleologically prior to the private good of the individual. Man’s duties towards the city and his fellow citizens are, as a consequence, prior to any claim of rights against them."
Common Good Constitutionalism
by adrian vermeule
polity, 270 pages, $19.95
This is an ambitious and timely book. It confronts one of the most perplexing and unfortunate developments of our day: the rise of disputes about the correct way of interpreting the Constitution of the United States, and the consequent politicization of judicial appointments. True, disagreements among lawyers about the correct approach to constitutional interpretation are nothing new, and preference for judges drawn from the party of the nominator has long been a fact of life. Both of them are part of the price we pay for our experiment in democratic government. But these conflicts seem particularly disquieting today. On issues such as racial equality, abortion, voting rights, and even an individual’s choice of gender, the strongest sort of disagreement exists, and each side has ceased to pay attention to the other. What little discussion takes place has become a dialogue of the deaf. In Common Good Constitutionalism, Adrian Vermeule, who teaches at Harvard Law School and was once a colleague of mine at the University of Chicago, proposes a way out.
The answer, he argues, lies in the recovery of a classical approach to law—that is, one in which we acknowledge that law should aim at the promotion of society’s common good. For purposes of constitutional interpretation, this means that judges should openly recognize law’s inherent moral purposes. It requires the rejection of both originalism and progressivism as the principal approaches to interpreting the language found in our country’s highest law. For Vermeule, who appreciates law’s historical connection with classical jurisprudence and natural law, we must instead look to the past. We must recover what we have lost.
For me, an aging teacher of property law whose research has focused on legal history and whose recent attention has been taken up by tracing the history of natural law as it was applied in European, English, and American courts prior to the mid-nineteenth century, Vermeule’s book has an obvious and inevitable appeal. Even for such a relative stranger to today’s theories of constitutional interpretation, the book is of sustained interest. It contains several surprises, and opens up the reader’s historical imagination. What follows is a discussion of four examples of what is particularly notable in the book, followed by four historical additions to its subject.
The first surprise is Vermeule’s rejection of a commonly accepted account of legal history. As is generally agreed, our country’s Founding Fathers accepted the classical view of natural law, using it (in Vermeule’s words) “to interpret texts” and to “ground the authority of government in the pursuit of the common good.” American lawyers of subsequent generations took the same approach, as European lawyers had done for centuries. According to the standard account, however, in the second half of the nineteenth century American lawyers abandoned natural law. Thus began a move toward legal positivism, the subject of Stuart Banner’s recent book, The Decline of Natural Lawyers: How American Lawyers Once Used Natural Law and Why They Stopped (2021). The hostility to natural-law reasoning shown by jurists such as Oliver Wendell Holmes won out.
But according to Vermeule this account is incomplete, even incorrect. Although most American lawyers may have ceased to refer openly to the law of nature by 1900, they did not cease to apply its substance. Natural law thinking was simply “driven underground.” They may have abandoned the vocabulary of the natural law, but American judges continued to apply principles drawn from it. This usage lasted until the 1960s. Only then did they begin to “deviate from classical principles into ever-more stringent forms of liberal individualism.” In other words, the supposedly long-standing American divergence from natural-law reasoning is actually a recent development.
