Common good constitutionalism

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Constitutional law of the United States
Overview
Articles Amendments History Judicial review
Principles
Separation of powers Individual rights Rule of law Federalism Republicanism Equal footing Strict scrutiny
Government structure
Legislative branch Executive branch Judicial branch State government Local government
Individual rights
Freedom of religion Freedom of speech Freedom of the press Freedom of assembly Right to petition Freedom of association Right to keep and bear arms Right to trial by jury Criminal procedural rights Right to privacy Freedom from slavery Due process Equal protection Citizenship Voting rights Right to candidacy Comprehensible rules
Theory
Living Constitution Originalism Substantive due process Political process theory Purposivism Textualism Strict constructionism Common good constitutionalism
v t e

Common good constitutionalism is a legal theory formulated by Harvard law professor Adrian Vermeule that asserts that "the central aim of the constitutional order is to promote good rule, not to 'protect liberty' as an end in itself".^[1] Vermeule describes it as an attempt to revive and develop the classical legal tradition by understanding enacted law as a positive application of background natural law principles.^[2] Within this tradition, he claims law is defined as "an ordinance of reason promulgated by political authorities for the common good."^[2] Vermeule states that law in this sense is "not tethered to particular written instruments of civil law or the will of the legislators who created them"^[1] but instead embody rational determinations of the common good, and it is those determinations, as well as the natural law background against which they are made, which constitute the law. Vermeule says that these principles include "a candid willingness to "legislate morality."^[1]

Common good constitutionalism, as first advanced by Adrian Vermeule in 2020, has been described as a derivative of integralism, both of which were created "to combat the legitimate societal threat of modern liberal individualism and reintroduce the spiritual common good into our political and legal discourse."^[3] Vermeule himself argues the notion natural law theory is either just coterminous with Catholic political theory is "both historically and theologically erroneous". Vermeule highlights that historically, natural law theory originates with Greek and Roman philosophers, largely before Christianity became dominant. Theologically, Vermeule argues that "Catholicism itself holds that the natural law is written in the hearts of all men, and is in principle accessible to the universal natural reason common to all".^[4]

Common good constitutionalism is opposed to both originalism^[5] and liberal legal theories such as a living constitution.^[6]