Common Good Constitutionalism
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A review of Adrian Vermeule’s Common Good Constitutionalism
When a widely acclaimed Harvard Law School professor publishes a book that another Harvard Law professor calls “the most important book of constitutional theory in many decades,” it’s certainly worth a look. But Common Good Constitutionalism (Polity, 2022), despite all the praise, is more an embarrassment than a legal masterpiece.
In this book, Adrian Vermeule argues that a “classical law” system, derived from a combination of Roman, continental, and English common-law legal systems,can produce a community that achieves what he calls the “common good.” However, the political structure he devises is highly authoritarian, perhaps even totalitarian. He never successfully defines what he means by the common good or how it can be achieved, and he steps outside the subject of his book to attack originalism in constitutional interpretation as a political system without seeming to understand the limited nature of its role by the courts. He also doesn’t understand that there is a significant difference between originalism and textualism.
Given Vermeule’s prominence in the academic legal profession, it should be a matter of concern to all of us that he is proposing a governmental system that is not remotely consistent with a democratic republic or individual liberty.
If nothing else, these ideas are a prescription for dictatorship, and that they originate with a highly regarded academic suggests that something beyond wokeness has infected American elites.
It’s naive to write a whole book about creating the common good without defining what it is and how exactly it is to be achieved. But Vermeule has done it. Clichés like “the genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis,” just won’t do. But at the end of the day, that’s all he is offering.
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