Common Good Constitutionalism. Adrian Vermeule
we choose to interpret something other than the original Constitution. Whatever merits that other Constitution might boast, it will not be original – and thus will not be the Constitution that originalists claim to be recovering and the only one that can be said to possess original meaning.
5 5. See generally, e.g., HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (1958).
6 6. Cf. Lawrence Lessig, Fidelity in Translation, 71 TEXAS LAW REVIEW 1165 (1993).
7 7. Aquinas, note 3 above, at pt. I-II, q. 90 art. 4.
8 8. So, for example, I have no stake in, and need take no position on, the nth-decimal debates between and among positivists and Dworkin exegetes. Although I draw on Dworkin’s work for certain (limited) purposes, I spend no time rehashing his debates with H.L.A. Hart, Joseph Raz, or Hart’s and Raz’s epigones. This is partly because the purposes for which I draw on Dworkin do not require doing so; partly because I believe that Dworkin’s major critiques of Hart, THE CONCEPT OF LAW (1994), are essentially correct (and were later in effect conceded, not rebutted, by Hart); and, most importantly, because I prosecute Dworkin’s core points about the non-positivist practice and phenomenology of judging and legal practice inductively, through the accumulation of examples within my areas of expertise, rather than through abstract jurisprudential argument.
9 9. See RONALD DWORKIN, LAW’S EMPIRE 228–38 (1986).
10 10. In Chapter 2 I rely heavily on important treatments of the classical and natural law in America by Richard Helmholz, William Novak, Stuart Banner, and others cited there. Other essential treatments of the natural law, and its relationship to the classical law generally, include JOHANNES MESSNER, SOCIAL ETHICS: NATURAL LAW IN THE WESTERN WORLD (rev. ed. 1965); HEINRICH A. ROMMEN, THE NATURAL LAW: A STUDY IN LEGAL AND SOCIAL HISTORY AND PHILOSOPHY (Russell Hittinger, ed., Liberty Fund ed. 1998); ALEXANDER PASSERIN D’ENTREVES, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (Routledge ed. 2017); HADLEY ARKES, BEYOND THE CONSTITUTION (reissued Princeton University Press 2021); Brian McCall, THE ARCHITECTURE OF LAW: REBUILDING LAW IN THE CLASSICAL TRADITION (University of Notre Dame Press 2018); and especially the illuminating treatment in JAVIER HERVADA, CRITICAL INTRODUCTION TO NATURAL RIGHT (2d ed. 2020). See also the brief but magisterial overview by Wolfgang Waldstein, The Significance of Roman Law for the Development of European Law, https://iusetiustitium.com/the-significance-of-roman-law-for-the-development-of-european-law.
11 11. Because my main reliance on Dworkin is for his critiques of positivism and originalism, it is immaterial for my purposes whether, or in what sense, Dworkin is best understood as a natural lawyer, or whether his interpretivism really is a third way, different than both the classical law and positivism. (For an excellent overview of the issues, see PETAR POPOVIC, THE GOODNESS OF RIGHTS AND THE JURIDICAL DOMAIN OF THE GOOD, chapter 5 (2021).) As far as the critique of positivism goes, Dworkin and the classical law stand on common ground. Dworkin himself noted wryly that rejecting the fundamental claim of positivism, namely that law can (only) be identified without reference to political morality (except, on some inclusive views, insofar as the positive law itself incorporates moral standards), put him in alliance with the classical law: “[If] any theory which makes the content of law sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty of natural law.” Ronald Dworkin, “Natural” Law Revisited, 34 UNIVERSITY OF FLORIDA LAW REVIEW 165 (1982). In the same methodological space, compatible with the classical law even if not expressly written from within the classical tradition, see the illuminating account of fundamental and general constitutional principles in N.W. BARBER, THE PRINCIPLES OF CONSTITUTIONALISM (2018).
12 12. See generally Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057 (1975) (describing the role of principles in judging close cases, a role that is not reducible to mere political policy preferences).
13 13. See DWORKIN, LAW’S EMPIRE, note 9 above, at 4–11.
14 14. [If contemporary judges think that their concrete convictions were in conflict with their abstract ones, because they did not reach the correct conclusions about the effect of their own principles, then the judges have a choice to make. It is unhelpful to tell them to follow the framers’ legal intentions. They need to know which legal intentions – at how general a level of abstraction and why. So Bork and others who support the original understanding thesis must supply an independent normative theory – a particular political conception of constitutional democracy to answer that need. That normative theory must justify not only a general attitude of deference, but also what I shall call an interpretive schema: a particular account of how different levels of the framers’ convictions and expectations contribute to concrete judicial decisions.Ronald Dworkin, Bork’s Jurisprudence, 57 U. CHI. L. REV. 657, 664 (1990) (reviewing ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990)).
15 15. Ronald Dworkin, The Moral Reading of the Constitution, N.Y. REV. BOOKS, Mar. 21, 1996, at 46, https://www.nybooks.com/articles/1996/03/21/the-moral-reading-of-the-constitution. I will take my argument as having been carried, in substance, to the extent that originalists try to take such moral readings on board by having recourse to what some call “inclusive positivism,” and what Dworkin called “Pickwickian Positivism.” See RONALD DWORKIN, JUSTICE IN ROBES 188 (2006). “Inclusive positivism … is only an attempt to keep the name ‘positivism’ for a conception of law and legal practice that is entirely alien to positivism.” Ibid. The same is true of versions of “inclusive originalism” that attempt to preserve the name while surrendering all the content to the classical legal tradition. I discuss this issue of convergence between nominal originalism on the one hand and the classical legal tradition on the other in Chapter 3.
16 16. See Dworkin, Law’s Empire, note 9 above, at 239.
17 17. Another way of putting this point is that I have no need for Dworkin’s distinction between principles and “policies,” which many have criticized as arbitrary and unmotivated. As Dworkin conceived it, the distinction seems to assume a typical liberal opposition between “individual rights” and “collective interests,” imagining the latter as aggregated social utility that may or may not “override” individual rights. See Popovic, note 11 above, at 164–67. On the conception I urge here, by contrast, the common good is itself a constitutional principle, the highest constitutional principle, just as the common good is itself the highest interest of individuals. As we will see, the common good (or one of its variants, such as salus populi) was frequently cited by classical lawyers in America as a fundamental constitutional principle authorizing broad action by public authorities on behalf of the public welfare.
18 18. See, e.g., JOHN PAUL II, ENCYCLICAL LETTER CENTESIMUS ANNUS: ON THE HUNDREDTH ANNIVERSARY OF RERUM NOVARUM, art. 10, 15 (1991); PONTIFICAL COUNCIL FOR JUSTICE AND PEACE, COMPENDIUM OF THE SOCIAL DOCTRINE OF THE CATHOLIC CHURCH ¶¶ 192–96, 185–88 (2004) (hereafter “Compendium”). Within the project, there are of course many further problems to be worked out about the relationships among these principles. As merely one example, see the discussion of the relationship between solidarity and subsidiarity, and their connections to the scope of political authority (nation or empire?), in Richard Ekins, The State and Its People, AM. J. JURIS. (2021) (reviewing Barber, Principles of Constitutionalism, note 11 above).
19 19. See generally LON L. FULLER, THE MORALITY OF LAW (rev. ed. 1969). In what follows, an awkward issue of exposition – although not a problem of theory – is that positivism need not involve a written text, merely a conventionally recognized rule of law (which might, for example, be an unwritten custom). For concreteness, I will focus on written lex as the paradigm of a positive enactment of the civil law, but all of my points can apply with equal force to a customary rule. This also allows me to engage the Supreme Court’s recent pronouncement, a very confident pronouncement indeed, that “only the written word is the law.” See note 32 below.
20 20. See Aquinas, note 3 above, at pt. II-II,