Common Good Constitutionalism. Adrian Vermeule

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Introduction: The Return of the Classical Legal Tradition

      American public law suffers from a terrible amnesia. Putting aside the work of a few legal historians and other specialists, our law has all but lost the memory of its own origins and formative influences in the classical legal tradition – particularly the ius commune, the classical European synthesis of Roman law, canon law, and local civil law.¹ The ius commune was heavily influential in England, in a somewhat variant form;² both English and continental streams influenced Americans right from the beginning, throughout the nineteenth century and well into the twentieth.

      The consequence of this amnesia is that our public law now oscillates restlessly and unhappily between two dominant approaches, progressivism and originalism, both of which distort the true nature of law and betray our own legal traditions. Against both camps, I argue for a view I will call common good constitutionalism. On this view, the classical tradition should be explicitly recovered and adapted as the matrix within which American judges read our Constitution, our statutes, and our administrative law. The centerpiece of the classical legal tradition is that law should be seen as a reasoned ordering to the common good, the “art of goodness and fairness,”³ as the Roman jurist Ulpian put it – an act of purposive and reasoned rulership that promotes the good of law’s subjects as members of a flourishing political community, and ultimately as members of the community of peoples and nations. Accordingly, the master principle of our public law should be the classical principle that all officials have a duty, and corresponding authority, to promote the common good – albeit in a manner consistent with the requirements of their particular roles, an important qualification to which I shall often return.

This classical conception embodies the best of our own tradition, the union of well-ordered reason with public authority. And if anything has a claim to capturing the “original understanding” of the Constitution, this does. The classical law is the original understanding. In that sense, this book is as much a work of memory and recovery as of theory. So-called “originalism,” which in its elaborated theoretical form is a product of the conservative legal movement’s particular political and rhetorical situation after World War II, is profoundly anachronistic, indeed counter-originalist.⁴ The classical law was deeply inscribed in our legal traditions well before the founding era, and was explicit in legal practice through the nineteenth century and into the twentieth century. Indeed, the classical vision was central to the American legal world until it began to break СКАЧАТЬ