Out today in the New York Times is an essay published with a view to the upcoming release of my new book, Common Good Constitutionalism, published by Polity Books. (The essay started as an adaptation from the book, but isn’t really anymore, although of course the broad lines of argument are similar).
An excerpt from the essay:
What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.
The common good is no abstract idea; its absence is keenly felt today…. One needs no sectarian or contentious conception of the common good to think that America in 2022 desperately needs healing of the public community. Americans’ life expectancy is now roughly five years below that of people in comparable countries. Overdosing, rural despair and politicized anger are not hallmarks of a flourishing community in any reasonable view of what the common good means. Stable families, material security, dignified work and a sense of social harmony are objectively good for all. We may disagree on how precisely to achieve these ends, but denying they are something to aspire to as a community is irrational, and the laws should be interpreted accordingly. In hard cases, where legal sources are conflicting, ambiguous or unclear, the common good and its subsidiary ideals serve as principles for interpreting the laws.
For more, see this piece with Prof. Conor Casey on some frequent myths and misconceptions about the classical legal tradition; this video from Oxford’s Common Good Project, in which I survey the classical definition of the common good and explains why the concept is at least as determinate as other constitutional concepts, such as “liberty”; and, finally, this excellent symposium on the whole topic, featuring a number of young scholars.
Adrian Vermeule
