The Dangers of ‘Common Good Constitutionalism’

The Dangers of ‘Common Good Constitutionalism’ April 6, 2020

I never thought I’d see the day when a professor at Harvard Law School argued in favor of theocracy, but that day has come. Adrian Vermeule, who holds the Ralph S. Tyler, Jr. Chair at Harvard Law, argues not only in favor of a Christian theocracy, but a specifically Catholic one. In more respectable publications, like this article in The Atlantic, he calls this “common good constitutionalism.”

He begins by arguing that originalism has served its purpose, which was to provide a basis for opposition to the liberal jurisprudence of the New Deal and Warren courts. But now that virtually everyone accepts originalism, he argues, it’s time to jettison it in favor of a non-originalist “natural law” constitutionalism.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.

And he outlines his alternative:

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society…

This is not the occasion to offer a bill of particulars about how constitutional law might change under this approach, but a few broad strokes can be sketched. The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.

Lest you have any doubt what he really means, look at what he writes in more obscure, specifically Catholic, legal sources. Like in this blog post, he argues that our official immigration policy should be to favor Catholics over non-Catholics. The principle he proposes is “to give lexical priority to confirmed Catholics, all of whom will jump immediately to the head of the queue.” And the ultimate goal? A global Catholic government.

As the superb blog Semiduplex observes, Catholics need to rethink the nation-state. We have come a long way, but we still have far to go — towards the eventual formation of the Empire of Our Lady of Guadalupe, and ultimately the world government required by natural law.

And don’t worry, he says, even though these principles are coercive, the subjects — we call them citizens — “will come to thank the ruler” for their benevolent authoritarianism. Yeah, don’t bother signing me up for that one. I can only imagine how embarrassed his fellow Harvard Law professors are by having him on the faculty. But he occupies an endowed chair, which means someone ponied up a huge amount of cash to keep him in that position. I have no idea who Ralph S. Tyler, Jr. is, but I suspect he is himself a theocrat who wanted to make sure someone at a prestigious law school supported his vision.

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