Tuesday, February 8, 2022
Adrian Vermeule's much anticipated book, Common Good Constitutionalism, is coming out soon, and is available for purchase on Amazon, etc. MOJ readers are likely familiar with the project, not only from Adrian's MOJ contributions in the past, but also from writings at, e.g., Ius et Iustitium (also here) and The Atlantic and, recently, The New York Times.
I expect that Adrian's book and argument will be of interest to MOJ writers and contributors, and I hope that many of my co-bloggers will read the book, and share their thoughts about it. Given (inter alia) St. Thomas's well known definition of law as "an ordinance of reason for the common good, made by him who has care of the community, and promulgated", there can be no doubt that the idea/aim/end of "the common good" -- which is, of course, not understood in the Catholic tradition as "the greatest good for the greatest number" or in merely utilitarian terms but instead as the network/sum of social conditions which enable human persons and societies to flourish -- is crucial to any Catholic legal theory and, it would seem, to any Catholic account of the enterprise of constitutionalism.
The questions that I have about Adrian's proposal, and about others to which "common good constitutionalism" is attached, have to do not so much with the question whether those who are authorized to make laws should do so with an eye toward promoting and protecting -- to the extent possible and feasible, this side of Heaven -- the common good of the relevant political community. Instead, my questions have to do more with these proposals' implications for constitutional interpretation by federal judges who, in our context, are authorized to decide cases and controversies only by virtue of the positive-law-fact that the federal judicial power has been vested as it has. To have such questions is not, of course, to be a "positivist" or "relativist." But it is not clear to me why (as I gather Adrian argues) that an appropriate appreciation for the fact that a political community's positive laws should promote and protect the common good, correctly understood, means that "originalism" is not the appropriate methodology for identifying the judicially enforceable content of the positive laws that we have.
In any event . . . I look forward to reading and learning more.