Common-Good Constitutionalism: Collected Links

Adrian Vermeule

Common-Good Constitutionalism: Collected Links

This post collects all my work to date on “common-good constitutionalism,” including both online articles and blog posts. (Thanks to the editors of Mirror of Justice for permission to cross-post the links that appeared there first).

The entries are arranged, not in chronological order, but in order of importance to the project (in my own view). I will update this post occasionally as new work appears.

(1) “Common-Good Constitutionalism”
https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/

(2) “Common-Good Constitutionalism: A Model Opinion”
http://iusetiustitium.com/2020/06/17/common-good-constitutionalism-a-model-opinion/

(3) “Deference and the Common Good”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/05/a-confusion-about-deference.html

(4) “Abuses of Power”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/abuses-of-power.html

(5) “On ‘Common-Good Originalism’”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/05/common-good-originalism.html

(6) “Interview on Common-Good Constitutionalism (English Translation)”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/common-good-constitutionalism-interview-english-translation.html

(7) “A Series of Unfortunate Events”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/a-series-of-unfortunate-events.html

(8) “The Guardian of Life”
https://mirrorofjustice.blogs.com/mirrorofjustice/2020/04/the-guardian-of-life.html

(9) “Bureaucracy and Mystery”
https://mirrorofjustice.blogs.com/mirrorofjustice/2019/03/bureaucracy-and-mystery-.html

(10) “Natural Law, Welfare Economics, and Administrative Law: A Comment on Helmholz”
https://mirrorofjustice.blogs.com/mirrorofjustice/2017/05/natural-law-welfare-economics-and-adminstrative-law-comments-on-helmholz.html

Adrian Vermeule

Meditations on the emergency

Pat Smith1 Comment

Today, it is common to discuss the state of emergency or the state of exception primarily with reference to the German jurist Carl Schmitt. One of his best known books, Political Theology (1922), begins with the pungent phrase, “Sovereign is he who decides on the exception.” But Schmitt is only one in a long line of jurists and philosophers—to say nothing of politicians—who have considered the problem of the emergency. Much of the fundamental work on the question was done, frankly, decades and centuries before Carl Schmitt. To discount the concept of the emergency or to attempt to conflate it with Schmitt’s problems (the most serious of which occurred for the most part after 1922) is, then, to depart from Catholic jurisprudence.

Consider the great discourse of Don Juan Donoso Cortés to the cortes on January 4, 1849. There one finds an important precursor to Schmitt’s Political Theology—a debt Schmitt frankly acknowledges at the end of his book. For Donoso, when society confronts mortal peril, if strict adherence to the law is sufficient to overcome the peril, then the law should be strictly adhered to. However, if such strict adherence to the law is not sufficient, then one must look beyond the letter of the law. This then is the emergency, articulated by a Catholic politician and political theorist beyond reproach. 

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Thoughts on the Feast Day of St. Thomas More

JAF

St. Thomas More’s final words, “The King’s good servant, but God’s first,” encapsulate the beau ideal of integralist jurisprudence. He died a martyr for the rights of the Church.  During his life, he vigorously and consistently defended law as a servant of the common good, both in his conception of natural law and in his everyday opinions and reforms as common-law lawyer and Lord Chancellor.  

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The tyrannical Lex Regia?

Pat Smith

Fr. Thomas Crean and Prof. Alan Fimister have recently published their “manual,” Integralism (“C&F”). While the debates over integralism to date have centered on the subordination of the temporal power to the spiritual power, Crean and Fimister have an altogether more ambitious goal: they hope to present a coherent vision of Catholic politics, jurisprudence, and political economy. It would, however, be a mistake to think that they present a descriptive case. They have an agenda. There are numerous examples of this fact, but one of the clearest is their treatment of the civil law tradition compared to the common law tradition. A quick inspection of one aspect of their treatment, which takes up only a couple of paragraphs in their chapter on law, reveals not only their agenda but the manner in which they pursue it. 

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Common-Good Constitutionalism: A Model Opinion

Adrian Vermeule2 Comments

One of the strangest reactions to Common-Good Constitutionalism was the view, or rather assumption, that it proposed some sort of alien irruption into our law. Such an assumption could only be made out of ignorance of the history of American public law, one in which the current highly libertarian state of much current doctrine—an anomaly in historical perspective—is falsely projected backwards in time, after the fashion of invented traditions. In fact, as I have mentioned elsewhere, the common good has a much longer and more impressive pedigree within our law than does originalism itself; the latter is a modern movement that has attempted, unconvincingly, to inscribe itself in the past. This is especially true of originalism’s current form, essentially libertarianism in sheep’s clothing. (Originalism and libertarianism are analytically different, but it has suited modern libertarians, for contingent tactical and rhetorical reasons, to dress in originalist garb — an uneasy fit, given that the founding era was far from libertarian on any number of dimensions). Continue reading “Common-Good Constitutionalism: A Model Opinion” →