Common Good Constitutionalism

Adrian Vermeule

• Publisher: Polity
• Year: 2022
• ISBN:
  9781509548880
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the "living constitutionalism" of progressives. Is it time to look for an alternative?

Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as "a reasoned ordering to the common good." In this view, law's purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of "common good constitutionalism."

This erudite and brilliantly original book is a vital intervention in America's most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.

Chapter 1
The Common Good Defined

What is the common good? I begin with some antonyms, and then turn to a series of positive characterizations of increasing specificity, discussing the common good generally, the common good in law, and the common good as a constitutional concept.

Antonyms of the Common Good

Let me first approach the common good along the via negativa, mentioning some antonyms to define the notion by contrast, before turning to a positive characterization.

Aggregation. The sum of separate private utilities, no matter how large, can never add up to the common good, which is the good proper to, and attainable only by, the community. To be sure, it is important that the common good is also a good for individuals, indeed their highest good, but the common good is not produced by the summation of individual goods. When the Roman jurist Papinian says that “public law cannot be changed by private pacts,”⁵³ this is to say that the res publica that is the locus of the common good is something that rises above the mere conjunction of interests, in which you decide what is good for you and I decide what is good for me. This is so even if our decisions may happen to coincide in an agreement, and even if the decision is equally to all of our advantage.⁵⁴ Obviously one way that the public authority may promote the common good is by maintaining an institutional system for enforcing private contracts, perhaps by arbitration, but that system itself ultimately sets the bounds of enforceable arbitration and is not properly subject to change by private pacts, so Papinian’s point is preserved.

Tyranny and Faction. Another antonym to the common good is ruling for private benefit. In classical constitutional theory, there are three types of rule, each divided into good and bad forms, yielding six categories in total. Rule by one, few, or many are each subdivided into either rule ordered to the common good or for private benefit, the latter being considered tyrannous. The resulting category-pairs are monarchy and tyranny (in a more specific sense), aristocracy and oligarchy, polity and democracy. Thus self-interested rule can take any of three forms: the tyrannous rule of the one, the corrupt rule of the few (oligarchy), or the oppressive rule of the many (democracy).⁵⁵ In the last two cases, especially, we may speak of rule by faction, whether a minority or majority faction, as the antonym of the common good.

Rule for private benefit is obviously bad, but rule by faction more specifically also features a kind of restless instability. Democratic theorists praise the partisan alternation in power, but there is also a nightmarish version of the alternation in power in which there is an indefinite cycle of successive victories and defeats by factions locked in an endless struggle for rule. The most vivid depiction here is perhaps Machiavelli’s Florentine Histories, a vision of the faction-ridden city in which any sense of the bonum commune is lost.⁵⁶

“Monstrous Government.” Finally, related to but different from rule in the service of private interest, another antonym for the common good is the confusion of public and private functions. Bartolus (Bartolo de Sasseferrato), the great fourteenth-century commentator of the ius commune, identified a sort of anti-type of the common good that he called the “Monstrous Government,” one that went beyond the usual six categories of government in classical theory. The defining feature of the monstrous government is a multiplicity of quasi-independent private tyrants dominating a weak public authority:

There is a seventh mode of government, the worst one, which now exists in the City of Rome. There are many tyrants there so strong that one [can] not prevail against the other. For there is a common government of the whole city so weak that it cannot [prevail] against any of the tyrants, nor against anyone adhering to the tyrants, except only so far as they allow it. Aristotle did not discuss (posuit) this government, and fittingly so, for it is a monstrous thing. What, indeed, if someone sees one body having one common [and] weak head, and many other common heads stronger than it, and all opposed to one another? Certainly it would be a monster.⁵⁷

This sort of regime is tossed restlessly between domination by private actors, often abusing their legal entitlements, on the one hand, and on the other hand futile attempts at reassertion of ruling authority by public actors. In such conditions, any possibility of purposive public action for the common good is lost.

The Positive Common Good in Politics and Law

So much for the negative side. Let me now turn to a positive characterization of the common good in politics and law. I begin with some general conceptual points, and then turn to the legal common good specifically.

In the classical account, a genuinely common good is a good that is unitary (“one in number”) and capable of being shared without being diminished.⁵⁸ Thus it is inherently non-aggregative; it is not the summation of a number of private goods, no matter how great that number or how intense the preference for those goods may be. Consider the aim of a football team for victory, a unitary aim for all that requires the cooperation of all and that is not diminished by being shared. The victory of the team as such cannot be reduced to the individual success of the players, even summed across all the players.

In the classical theory, the ultimate genuinely common good of political life is the happiness or flourishing of the community, the well-ordered life in the polis. It is not that “private” happiness, or even the happiness of family life, is the real aim and the public realm is merely what supplies the lawful peace, justice, and stability needed to guarantee that private happiness. Rather the highest felicity in the temporal sphere is itself the common life of the well-ordered community, which includes those other foundational goods but transcends them as well. Nor is this the same as the good of the state. On the classical account, the state is merely one part of the larger political community, and the good of the community is itself the good for individuals – a crucial point emphasized by the great theorist of the common good, Charles de Koninck.⁵⁹

Put differently, human flourishing, including the flourishing of individuals, is itself essentially, not merely contingently, dependent upon the flourishing of the political communities (including ruling authorities) within which humans are always born, found, and embedded. This is not at all to say, of course, that the individual should be absorbed into the political community or subjected to it; that is the opposite error of the one the libertarian commits. The end of the community is ultimately to promote the good of individuals, but common goods are real as such and are themselves the highest goods for individuals.

I have referred to “the temporal sphere” because the account I offer here is limited to the ends of natural or temporal happiness. As the theologian Walter Farrell, O.P., observes in a classic study of the structure of the natural law:

The final end of man is his happiness; a supernatural happiness, it is true, but not all communities have to do with leading man to his supernatural end directly. Nevertheless they have at least to do with the attainment of his secondary ends of natural or temporal happiness, which are a means to the supernatural final ends.⁶⁰

Just as not all communities must concern the supernatural end, so too not all books must do so. In what follows I limit my account to the secondary ends of the political community: its temporal felicity, th...