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Common good constitutionalism

Common good constitutionalism is a jurisprudential framework advanced by Harvard Law School professor Adrian Vermeule, emphasizing the recovery of the classical legal tradition—encompassing Roman private law, canon law, and English common law—to interpret constitutional provisions in service of the common good, defined as the conditions enabling human flourishing through just authority, solidarity, and subsidiarity.^[1]^[2] Unlike originalism, which fixates on the Constitution's historical meaning as a constraint on power, or living constitutionalism, which adapts law to evolving social norms often prioritizing individual autonomy, this approach legitimizes robust public authority to legislate morality, promote hierarchy, and prioritize societal goods like peace, justice, and health over neutral proceduralism.^[1]^[3] First publicly articulated in a 2020 essay, the theory rejects the liberal premise of state neutrality toward comprehensive conceptions of the good, arguing instead that rights and liberties are inherently ordered to communal ends rather than pre-political absolutes that override collective welfare.^[1] Vermeule elaborated these ideas in his 2022 book Common Good Constitutionalism, contending that dominant interpretive paradigms have obscured America's pre-liberal legal heritage, which integrated natural law principles to authorize governance aimed at virtue and the telos of political life.^[2]^[3] Rooted in early modern "reason of state" doctrines and Thomistic natural law, it posits that constitutional interpretation should facilitate the direction of persons, associations, and society toward objective moral ends, eschewing the defensive postures of contemporary methodologies.^[1] The framework has emerged as a focal point in debates over post-liberal conservatism, influencing discussions on judicial philosophy amid shifts in the U.S. Supreme Court, though it faces sharp critiques for potentially enabling unchecked executive power or conflating jurisprudence with substantive policy preferences disguised as tradition.^[4]^[5] Proponents highlight its alignment with founding-era understandings of authority prior to 19th-century liberal dominance, while opponents contend it lacks textual fidelity and risks subordinating individual protections to vague notions of flourishing, echoing concerns over integralist or authoritarian tendencies.^[6]

Historical and Intellectual Foundations

Classical Legal Antecedents

The classical legal tradition underlying common good constitutionalism originates in ancient Greek philosophy, particularly Aristotle's conception of the polis as a community ordered toward the common good. In Politics, Aristotle defines the state not as a mere alliance for security or economic exchange, but as a higher association aimed at enabling citizens to achieve eudaimonia, or human flourishing through virtue, with the common good encompassing the shared pursuit of the good life by free and equal participants in political life.^[7] This teleological view posits law and governance as instruments for cultivating civic excellence, subordinating private interests to communal ends, as deviations toward oligarchy or democracy undermine the polity's purpose.^[8] Roman jurisprudence extended these ideas through Cicero, who integrated Stoic natural law with republican institutions to emphasize law's role in securing the res publica. In De Re Publica and De Legibus, Cicero describes true law as "right reason in agreement with nature," universally binding and directed to the common utility, welfare, and sense of right shared by the citizen body.^[9] He defines a people as "an assemblage of persons associated together by agreement on law and by a community of interests," where sovereignty resides in advancing justice and the common advantage, rejecting tyrannical rule that serves private gain over public order.^[10] This framework influenced Roman legal practice, embedding the common good in concepts like ius civile and ius gentium, which balanced individual rights with societal harmony. Medieval synthesis in Thomas Aquinas further crystallized these antecedents by Christianizing Aristotelian and Ciceronian principles within natural law theory. In Summa Theologica (II-II, q. 90), Aquinas defines law as "an ordinance of reason for the common good, made by him who has care of the community and promulgated," distinguishing it from arbitrary commands and rooting it in eternal divine reason accessible through human intellect.^[11] The common good, for Aquinas, surpasses the sum of private goods, requiring positive law to direct temporal society toward virtue and ultimate beatitude while accommodating subsidiarity, where higher authorities intervene only when lower ones fail.^[12] This tradition, preserved in Justinian's Corpus Juris Civilis (compiled 529–534 CE), systematized Roman principles of equity and public welfare, providing a foundational ius commune that prioritized imperial stability and communal justice over individualistic liberties.^[13]

Modern Revival and Formulation

The modern revival of common good constitutionalism gained prominence through the work of Adrian Vermeule, Ralph William Busk Professor of Law at Harvard Law School, who first systematically formulated it as a distinct approach to constitutional interpretation in his March 31, 2020, essay "Common Good Constitutionalism" published in The Atlantic.^[1] In the essay, Vermeule critiqued dominant U.S. constitutional paradigms—originalism and living constitutionalism—for their shared commitment to individual autonomy and negative liberty, proposing instead a framework rooted in the classical legal tradition that interprets law as a directive toward the common good, defined as the conditions enabling human flourishing in accordance with natural law.^[1] He contended that this tradition, encompassing Roman, canon, and early modern civil law influences, views the Constitution not as a libertarian charter but as authorizing rulers to pursue substantive moral ends, such as promoting familial stability, public health, and civic virtue, unbound by strict textualism or historical fixation.^[1] Vermeule's formulation explicitly revives pre-liberal juridical concepts, including the 16th-century Italian doctrine of ragion di stato (reason of state), which justified executive discretion for the polity's welfare, adapting them to American constitutional practice.^[14] He argued that U.S. founding-era law, including administrative structures like the Administrative Procedure Act of 1946, embodies this ius commune approach, where positive law applies underlying principles of natural right rather than deriving solely from popular will or original public meaning.^[15] This revival positions common good constitutionalism as a recovery of the American legal tradition's forgotten classical substrate, suppressed by 20th-century liberal legalism, and calls for judges and officials to exercise authority accordingly, as exemplified in potential reinterpretations of administrative law to favor regulatory ends over deregulatory constraints.^[2] Vermeule elaborated and refined the theory in his 2022 book Common Good Constitutionalism: Recovering the Classical Legal Tradition, published by Polity Press, which systematizes the approach across constitutional domains.^[3] The book delineates core tenets, such as the subsidiarity principle—where authority resides at the most local effective level—and the teleological orientation of law toward objective goods like peace, justice, and moral order, drawing on Aristotelian-Thomistic natural law without positing a theocratic state.^[16] Vermeule maintained that this framework aligns with historical U.S. practices, citing early administrative precedents and the Constitution's vesting clauses as enabling broad prudential governance for communal ends, rather than mere rights enforcement.^[4] While Vermeule's work sparked debate, including critiques from originalists who view it as unconstrained discretion, it represents the primary modern articulation, influencing post-liberal legal discourse by challenging the post-Enlightenment prioritization of individual rights over directed authority.^[17]^[18]

Core Doctrinal Elements

Definition and Objectives

![Saint Thomas Aquinas reading][float-right] Common good constitutionalism is a theory of constitutional interpretation and adjudication grounded in the classical legal tradition, which encompasses Roman, continental, and English common-law sources predating the dominance of liberal legal paradigms.^[6] It posits that the purpose of law, including constitutional law, is to promote the substantive goods essential for a flourishing political community, such as justice, peace, prosperity, and moral order, rather than merely constraining state power or maximizing individual autonomy.^[2] Articulated primarily by Harvard Law professor Adrian Vermeule, this approach rejects both originalism's fixation on historical enactment meanings and living constitutionalism's emphasis on evolving societal norms, advocating instead for judges and officials to exercise authority in service of the common good as discerned through reason and tradition.^[1] The core objective of common good constitutionalism is to realign constitutional practice with an authoritative conception of the polity's telos, enabling decisive action by rulers and institutions to secure conditions for human flourishing.^[4] This entails interpreting constitutional provisions—such as those vesting executive power or limiting judicial overreach—not as procedural safeguards against authority, but as mechanisms empowering the state to pursue integral goods like subsidiarity (decisions at the most local competent level) and solidarity (mutual support within the body politic).^[19] Vermeule argues that this framework restores the classical understanding of prerogative, where rulers may deviate from strict legality in extraordinary circumstances to preserve the common weal, as exemplified in historical doctrines like ragion di stato.^[14] By prioritizing the common good over atomistic rights or neutral proceduralism, the theory seeks to counteract what its proponents view as the pathologies of liberal constitutionalism, including judicial activism that undermines legislative prerogative and cultural fragmentation.^[1] Its objectives include fostering virtuous governance, where officials are selected and constrained not solely by electoral or textual fidelity, but by their capacity to advance communal ends, thereby ensuring the constitution serves as a directive toward societal teleology rather than a mere negative limit on power.^[20] This approach, detailed in Vermeule's 2022 book Common Good Constitutionalism, aims to provide a comprehensive alternative for conservative jurists disillusioned with originalism's limitations in addressing contemporary challenges.^[3]

Key Principles from Natural Law and Tradition

Common good constitutionalism posits that the purpose of law, including constitutional law, is to promote the common good, understood as the set of conditions enabling human flourishing within a political community, encompassing justice, peace, prosperity, and moral order.^[2] This principle derives from the classical natural law tradition, where law serves as a rational ordering toward the telos of human society rather than mere individual autonomy or procedural neutrality.^[21] Central to this framework is the integration of Aristotelian teleology with Thomistic natural law, as synthesized by Thomas Aquinas, who defined the common good as the complete fulfillment of human persons in community, oriented toward virtue and ultimate beatitude.^[22] Aristotle's emphasis on the polis as essential for achieving eudaimonia—human flourishing through virtuous activity—forms the philosophical foundation, revised by Aquinas to align with Christian anthropology, prioritizing the eternal destiny of souls alongside temporal welfare.^[23] In this view, rulers and lawmakers exercise authority not as delegates of popular will but as stewards of the common good, discerning and applying universal principles of justice derived from right reason.^[24] Natural law provides the background ius commune—unwritten principles of equity and justice—that positive law must determine rather than contradict, through a process of specification adapting general precepts to particular circumstances.^[25] Primary precepts of natural law, such as "do good and avoid evil," remain immutable, while secondary applications allow for prudential judgment by authorities to advance substantive goods like family integrity, public health, and moral education.^[24] This contrasts with modern liberal paradigms by subordinating individual rights to communal ends when necessary, rejecting the notion that rights exist in isolation from duties to the whole.^[26] The tradition further incorporates elements from Roman civilian jurisprudence, emphasizing the role of juristic reasoning in elaborating the natural law for governance, as seen in the American founding's implicit reliance on these sources for constitutional structure.^[27] Proponents argue this approach recovers an immemorial legal worldview where authority derives legitimacy from fidelity to objective goods, not subjective consent or historical fixation.^[28]

Institutional Mechanisms for the Common Good

In common good constitutionalism, constitutional institutions are oriented toward enabling the state to pursue the substantive ends of the common good, such as public order, moral formation, and societal flourishing, rather than merely constraining power through rights-based limitations. Proponents argue that this requires a hierarchical structure where authority flows from the people through elected representatives to a vigorous executive, capable of decisive action unbound by excessive proceduralism or judicial veto. Adrian Vermeule, a key architect of the theory, contends that the classical legal tradition—rooted in Roman and medieval precedents—views law as directive toward virtue and the commonweal, with institutions like the executive serving as instruments for rulers to adapt norms to contingent needs.^[6]^[25] A central mechanism is the empowerment of the executive branch, including a unitary executive model where the president exercises broad prerogative to direct policy without fragmentation by independent agencies. This aligns with Vermeule's endorsement of strong administrative discretion, positing that the modern administrative state represents a legitimate evolution of classical governance forms, such as the Roman princeps or medieval just rulers, allowing for expert implementation of common-good objectives in complex domains like regulation and welfare. Courts, under this view, apply doctrines of deference—extending beyond current standards like Chevron—to validate executive actions that reasonably advance public welfare, rejecting libertarian interpretations that prioritize individual autonomy over collective ends.^[29]^[30]^[31] Legislative institutions play a supportive role, delegating authority to the executive without non-delegation doctrine constraints, as long as delegations serve directive purposes rather than abdicating responsibility. Vermeule illustrates this in applications to administrative law, where Congress's broad grants enable agencies to promulgate rules promoting health, safety, and moral order—such as environmental regulations or public health mandates—provided they cohere with natural law principles of reasonableness and proportionality. Judicial review thus functions not as a counter-majoritarian check but as a prudential tool to ensure institutional actions avoid arbitrariness, drawing on equitable traditions to interpret vague constitutional phrases like "due process" in service of the common good rather than negative rights.^[6]^[18]^[32] Subsidiarity informs lower-level mechanisms, encouraging local institutions like families and communities to handle proximate goods, with higher authorities intervening only when necessary to coordinate for the universal common good. This principle, derived from Thomistic subsidiarity, structures federalism to prevent central overreach in minor matters while reserving national power for overarching threats, as seen in Vermeule's defense of federal administrative primacy in interstate issues. Critics within conservative circles, such as those emphasizing originalist rule-of-law limits, argue this risks unchecked discretion, but proponents counter that classical mechanisms inherently include moral and traditional restraints on rulers, rendering formal checks secondary to virtuous exercise of authority.^[19]^[25]

Theoretical Contrasts

Distinctions from Originalism

Common good constitutionalism (CGC) fundamentally diverges from originalism in its interpretive methodology, rejecting the latter's commitment to ascertaining and applying the original public meaning of constitutional text as fixed at the time of ratification. Proponents of CGC, such as Adrian Vermeule, contend that originalism "has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law," as it can yield libertarian-leaning outcomes—such as expansive individual rights protections—that undermine authoritative direction toward societal flourishing.^[1] In contrast, CGC starts from "substantive moral principles" derived from the classical legal tradition, including natural law and the ius gentium, to interpret constitutional provisions in service of the common good, defined as conditions enabling peace, justice, abundance, health, and moral virtue.^[1] A core distinction lies in the role of moral reasoning: originalism prioritizes textual and historical constraints to limit judicial discretion and ensure predictability under the rule of law, often deferring to democratic processes only within those bounds.^[33] CGC, however, embraces moral deliberation as integral to interpretation, authorizing judges and administrators to favor structures of authority, hierarchy, and solidarity over strict textual fidelity when the latter impedes promotion of the common good—such as by deferring to legislative or executive actions advancing public welfare without rigid historical tethering.^[1] This approach aligns CGC more closely with a "moral reading" of the Constitution, akin to Ronald Dworkin's framework but oriented toward traditionalist ends rather than liberal individualism.^[1] Critics, including conservative originalists, highlight that CGC's emphasis on vague moral goods risks greater subjectivity and reduced transparency compared to originalism's evidence-based historical inquiry, potentially masking policy preferences under appeals to natural law.^[33] While some scholars reconcile the two by viewing CGC as a species of originalism—arguing that the founding-era public meaning incorporated common-good principles from Anglo-American tradition—Vermeule's formulation explicitly positions it as an alternative, unbound by positivist textualism.^[34]^[1] Thus, originalism constrains constitutionalism to enacted law's original import, whereas CGC subordinates text to higher-order ends, potentially yielding divergent applications in cases involving administrative authority or rights limitations for public benefit.^[4]

Distinctions from Living Constitutionalism and Liberal Legalism

Common good constitutionalism (CGC) fundamentally diverges from living constitutionalism by rejecting the latter's emphasis on interpretive evolution driven by contemporary societal values or moral progressivism. Living constitutionalism, as articulated in theories like Ronald Dworkin's, posits that constitutional provisions acquire new meanings through evolving "moral readings" that reflect current understandings of justice and rights, often expanding individual protections in response to social change.^[35] In contrast, CGC, as formulated by Adrian Vermeule, anchors interpretation in the enduring principles of classical legal tradition and natural law, directing adjudication toward the objective common good rather than subjective, time-bound preferences.^[4] This approach critiques living constitutionalism's progressive tendencies as a form of "politics by other means," where judges impose partisan moral commitments under the guise of adaptability, whereas CGC prioritizes the state's directive role in fostering substantive human flourishing over fluid reinterpretation.^[5] CGC also distinguishes itself from liberal legalism, the post-World War II interpretive paradigm that emphasizes negative liberties, individual autonomy, and structural constraints on governmental power to prevent abuse. Liberal legalism views the Constitution primarily as a charter of limited government, enforcing rights as trumps against majoritarian or executive overreach through strict rule-of-law mechanisms and judicial neutrality.^[6] Vermeule argues that this framework misconstrues law's purpose, reducing it to procedural safeguards that unduly hamstring the state's authority to pursue telic ends like public morality and social order, which natural law traditions historically affirm as integral to governance.^[15] Instead, CGC integrates liberty and authority as interwoven, enabling robust institutional action—such as in family policy or economic regulation—to realize the common good, unbound by liberal legalism's preoccupation with minimizing state intervention.^[25] These distinctions underscore CGC's substantive orientation: while living constitutionalism risks judicial overreach via evolving norms and liberal legalism prioritizes atomized rights, CGC employs reason-infused adjudication to align constitutional meaning with pre-political moral truths, critiquing both as inadequate to the classical view of law as a rational ordering toward communal ends.^[6] Proponents contend this avoids the relativism of living approaches and the anemic proceduralism of liberal ones, though critics from liberal traditions warn it could erode checks on arbitrary power.^[36]

Reception Across Ideological Spectra

Endorsements from Post-Liberal and Integralist Thinkers

Post-liberal thinkers have expressed support for common good constitutionalism as a framework that aligns with their critique of liberal individualism and emphasis on substantive communal ends over procedural neutrality. Patrick Deneen, in his 2023 book Regime Change: Toward a Postliberal Future, explicitly endorses the approach, viewing it as a viable alternative to originalism and living constitutionalism that prioritizes the common good in governance.^[15] Gladden Pappin, a prominent post-liberal scholar, advocated for its adoption in a 2020 social media post, stating that originalism "had a good run" and calling for a shift to "common-good constitutionalism" informed by reason of state.^[37] These endorsements reflect a broader post-liberal consensus that common good constitutionalism facilitates "strong rule" to pursue shared goods, as articulated in discussions hosted by platforms like Postliberal Order, where Deneen, Pappin, and theologian Chad Pecknold engaged positively with Adrian Vermeule's 2022 formulation of the theory.^[38] Integralist thinkers, who advocate the subordination of temporal authority to the spiritual common good rooted in Catholic doctrine, have similarly embraced common good constitutionalism for its recovery of classical legal traditions emphasizing natural law and teleological governance. Contributors to The Josias, an integralist outlet edited by Pater Edmund Waldstein, have defended Vermeule's framework as consistent with Thomistic principles of law directed toward the ultimate common good, including human flourishing under divine order.^[39] For instance, integralist writers have praised its rejection of liberal rights absolutism in favor of authoritative direction toward virtue, aligning it with integralist texts like Integralism and the Common Good (2021), which compiles essays on state-family relations oriented to the commonweal.^[40] This support underscores integralism's view of common good constitutionalism as a pragmatic adaptation of pre-modern jurisprudence to modern constitutional contexts, enabling the promotion of moral and social ends without explicit confessional mandates.^[41] Such endorsements position the theory as a bridge between integralist ideals and American legal practice, though integralists caution that full realization requires deeper integration of religious authority.^[42]

Conservative Critiques Emphasizing Rule of Law Constraints

Conservative critics, especially originalists, contend that common good constitutionalism undermines the rule of law by detaching constitutional interpretation from the fixed public meaning of the text, replacing it with judges' subjective assessments of the "common good." This shift, they argue, erodes predictability and constrains judicial discretion insufficiently, as the common good remains vaguely defined and prone to ideological manipulation.^[4]^[43] Randy E. Barnett criticizes the approach as "conservative living constitutionalism," asserting it rejects originalism's methodological individualism and textual limits, thereby empowering an unchecked administrative state. He highlights how it endorses broad deference to executive actions, such as presidential vaccine mandates, under a "conceivable basis" standard that weakens oversight and allows arbitrary exercises of power, contrary to rule of law principles demanding clear constraints on government.^[43]^[44] Matthew J. Franck argues that the theory exhibits indifference to the Constitution as promulgated positive law, prioritizing abstract natural law principles over obedience to enacted text. By favoring moral readings that displace specific provisions, it risks judicial overreach and fails to uphold the rule of law's core requirement of fidelity to written authority, potentially rendering the document a mere vessel for interpreters' substantive visions.^[18] These critiques emphasize that originalism, by anchoring decisions in historical meaning, better preserves separation of powers and limited government, avoiding the instability of teleological pursuits that could justify expansive authority without democratic accountability.^[45]^[43]

Progressive Objections Centered on Individual Rights

Progressive legal scholars object that common good constitutionalism subordinates individual rights to a substantive vision of the common good, treating them not as inherent limits on state power but as instruments ordered toward collective moral ends.^[46]^[35] In this framework, rights lack the status of "trumps" against governmental action, allowing restrictions whenever they conflict with traditions-derived notions of virtue or societal flourishing, such as prohibitions on abortion or same-sex marriage.^[46]^[47] Critics like Linda C. McClain and James E. Fleming argue that this demotion of autonomy-based liberties under the Due Process Clause enables the imposition of hierarchical moral orders, potentially reversing protections for reproductive choices and equal marital recognition in favor of a unitary good unresponsive to pluralistic equality claims.^[46] They contend Vermeule's rejection of Casey v. Planned Parenthood's emphasis on personal dignity exemplifies how common good constitutionalism prioritizes ruler- or tradition-defined objectives over deliberative safeguards for individual agency.^[46] Brian Leiter further maintains that by rooting interpretation in classical natural law, the theory facilitates illiberal policies that erode secular freedoms and progressive entitlements, as the common good—framed non-utilitarian and anti-individualist—permits overriding dissent or nonconformity without robust rights-based barriers.^[35] This risks upending established jurisprudence on personal liberties, substituting elite moral judgments for democratic or rights-centric constraints.^[25]^[35] Such objections portray common good constitutionalism as antithetical to liberal constitutionalism's core commitment to shielding minorities and autonomous choices from majoritarian or authoritarian encroachments, warning of a return to pre-modern hierarchies where individual claims yield to communal teleology.^[46]^[47]

Empirical and Philosophical Rebuttals to Detractors

Critics of common good constitutionalism from originalist perspectives argue that it undermines the rule of law by prioritizing substantive moral ends over fixed textual meanings, potentially enabling judicial or executive overreach. Proponents rebut this philosophically by emphasizing that, in the natural law tradition, law is inherently an ordinance of reason directed to the common good, as articulated by Thomas Aquinas, rendering any legal interpretation detached from this telos incoherent or arbitrary.^[19] Common good constitutionalism thus respects constitutional text as a determination of natural law principles, harmonizing original public meaning with the classical legal tradition that informed the framers, rather than substituting subjective morality for posited law.^[19] This approach avoids the originalist pitfall of freezing interpretation in historical contingencies, which critics contend ignores the dynamic prudential judgment required to apply timeless ius naturale to contemporary circumstances without devolving into living constitutionalism's fluidity.^[19] Progressive detractors contend that common good prioritization risks subordinating individual rights to authoritarian state power, echoing fears of theocratic imposition. Philosophically, defenders counter that natural law views rights not as pre-political absolutes but as instrumental to human flourishing within community, where the common good justifies and limits them to prevent harms like social atomization.^[48] Unlike libertarian absolutism, which posits rights in isolation, this framework employs subsidiarity to devolve authority to local levels, ensuring rights serve ordered liberty rather than unchecked autonomy that erodes communal bonds.^[19] Disagreements over the common good's content, far from rendering the approach indeterminate, parallel interpretive disputes in all legal systems, including over terms like "liberty" in positive law, and are resolved through reasoned prudential determination rather than denial of objective moral foundations.^[19] Empirically, liberal legalism's emphasis on individual rights correlates with measurable societal declines, such as eroding interpersonal trust and family stability in the United States, where generalized trust in fellow citizens fell from 58% in 1964 to 30% by 2018, amid rising individualism.^[49] This contrasts with outcomes in regimes incorporating common good-oriented policies, as in Hungary, where pro-family measures aligned with Christian democratic principles raised the total fertility rate from 1.25 births per woman in 2010 to 1.52 by 2022, surpassing the EU average and mitigating demographic collapse.^[50] Such policies, emphasizing communal welfare over pure market individualism, demonstrate causal links to sustained social reproduction without descending into tyranny, rebutting claims that common good approaches empirically foster instability.^[50] Critics' fears of unconstrained power overlook historical precedents where natural law-grounded governance maintained stability through balanced authority, as opposed to the administrative state's unchecked growth under originalist rhetoric, which has failed to constrain executive discretion in practice.^[19]

Practical Implications and Applications

Influence on Administrative and Executive Authority

Common good constitutionalism advocates for expansive administrative and executive authority as essential mechanisms for directing society toward substantive moral ends, rather than constraining government through procedural limits or individual rights paradigms. Proponents, led by Adrian Vermeule, argue that the classical legal tradition—rooted in natural law—authorizes rulers and administrators to exercise broad discretion in pursuit of the common good, including prerogatives to override private interests when they conflict with public virtue.^[19] This view positions the administrative state as the primary institutional vehicle for such authority, rejecting liberal legalism's emphasis on checks that prioritize negative liberties over positive governance.^[51] Vermeule explicitly endorses the administrative state as "the institution best charged" with implementing these ends, viewing it as continuous with historical practices of monarchical and prudential rule.^[6] In practice, this framework supports deference to executive and agency interpretations of law when aligned with the common good, critiquing doctrines like non-delegation or major questions as artificial barriers derived from modern individualism rather than classical principles.^[52] For instance, Vermeule contends that administrative expertise enables rulers to adapt law dynamically to circumstances, much as medieval jurists allowed for equitable dispensations, without requiring exhaustive legislative specificity.^[25] This contrasts with originalist or progressive constraints, potentially validating expansive regulatory powers in areas like public health or economic ordering, provided they serve teleological objectives such as fostering civic friendship or moral order.^[14] Critics from rule-of-law perspectives, however, note the absence of defined limits on such power, warning that it risks unchecked discretion absent traditional separations.^[6] Empirical applications remain theoretical, but the approach has informed post-2022 debates on executive prerogative, including responses to the 2024 overruling of Chevron deference, where common good advocates might reframe judicial review around substantive ends rather than procedural agency autonomy.^[53] The theory's implications extend to executive war powers and emergency authorities, interpreting constitutional vesting clauses as granting inherent prerogatives for the commonweal, unbound by strict congressional authorization in urgent cases.^[54] Vermeule draws on historical precedents, such as Roman and canon law traditions, to argue that the president's role as chief executive encompasses directive authority over subordinates, enabling unified pursuit of policy without fragmentation by independent agencies.^[52] This unitary executive vision aligns with common good constitutionalism's rejection of atomistic rights as trumps, favoring instead a hierarchical structure where administrative actors exercise judgment informed by natural reason.^[55] While not yet dominant in jurisprudence, it has gained traction in scholarly circles and policy discourse among post-liberal conservatives, influencing arguments for robust presidential administration post-2024 elections.^[14]

Case Studies in Judicial Interpretation

One prominent historical example illustrating principles akin to common good constitutionalism is Jacobson v. Massachusetts (197 U.S. 11, 1905), where the Supreme Court upheld a state compulsory smallpox vaccination law during an outbreak that caused 1,596 cases and 270 deaths in Boston between 1901 and 1903.^[56] Justice Harlan's majority opinion grounded the decision in the state's police power to enact reasonable regulations for public health and safety, prioritizing communal welfare over individual autonomy when tied to preventing harm, as reflected in the maxim salus populi suprema lex est ("the welfare of the people is the supreme law").^[56] Proponents of common good constitutionalism view this as an application of classical legal reasoning, where judicial deference to legislative determinations serves the common good of peace and security, rather than elevating abstract individual rights above empirical public needs.^[56] In Lochner v. New York (198 U.S. 45, 1905), the Court's invalidation of a state law limiting bakers' working hours to ten per day marked a high point of substantive due process protecting economic liberty, but Justice Harlan's dissent offers a counterpoint resonant with common good constitutionalism. Harlan defended the regulation as a valid exercise of police power to safeguard health and welfare, arguing that legislatures could act on "reasonable grounds" against practices "prejudicial to the general welfare," citing precedents like Mugler v. Kansas (123 U.S. 623, 1887).^[25] This approach subordinates contractual freedoms to authoritative determinations of justice and abundance, aligning with the classical tradition's emphasis on rulers' duty to promote flourishing over libertarian constraints.^[25] Modern administrative law cases highlight tensions with common good constitutionalism's support for robust executive authority. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (467 U.S. 837, 1984), the Court established deference to agency interpretations of ambiguous statutes, enabling adaptive governance for public ends like environmental protection.^[6] Advocates interpret this as facilitating the administrative state's role in realizing the common good through expert discretion guided by natural law principles of non-arbitrariness, as echoed in the Administrative Procedure Act of 1946.^[25] Conversely, the 2022 decision in West Virginia v. Environmental Protection Agency (597 U.S. 697), which curtailed agency rulemaking under the major questions doctrine, exemplifies judicial skepticism toward such power, prompting common good constitutionalists to critique it as undermining the executive's capacity to address complex societal needs for justice and prosperity.^[6] These interpretations underscore a judicial role not of textual fixation or rights maximization, but of ensuring laws direct toward objective goods.

Broader Societal and Policy Ramifications

Common good constitutionalism posits that constitutional interpretation and policy should direct persons, associations, and society toward the common good, defined classically as comprising peace, justice, and abundance, rather than prioritizing individual autonomy or procedural constraints.^[57] This teleological approach redefines liberty not as arbitrary choice but as the capacity to select means aligned with moral reasoning and communal flourishing, potentially reshaping societal norms by subordinating rights such as free speech and property to duties of solidarity.^[6] In practice, proponents argue this framework could foster virtuous communities through policies enforcing familial stability, moral education, and economic regulations oriented to human ends over market freedoms, countering perceived liberal-induced fragmentation like family decline.^[6] ^[57] Policy ramifications extend to bolstering administrative and executive authority as instruments for the common good, viewing the state as an "engine of unsurpassed power" to achieve ordered prosperity, as opposed to recent judicial curbs on agencies like those in West Virginia v. EPA (2022).^[6] For instance, under this view, the Constitution's General Welfare Clause authorizes expansive interventions, such as health mandates overriding claims to bodily autonomy when deemed necessary for societal health, exemplified in arguments against constitutional rights to refuse vaccination or abortion.^[57] ^[47] Economic policies might prioritize abundance through directed markets, integrating subsidiarity to support local associations while empowering rulers to "smite enemies" of the polity, including cultural or ideological threats to cohesion.^[6] Critics contend these implications risk authoritarian outcomes, as unconstrained agencies and redefined rights could suppress dissent or impose a singular moral vision, potentially leading to a polity where individual flourishing yields to state-enforced teleology without empirical safeguards against ruler abuse.^[6] ^[57] Yet, advocates maintain that classical constraints, rooted in natural law traditions like those of Aquinas, inherently limit power to just ends, promoting causal societal health—such as reduced vice through virtue-oriented laws—over the atomized liberties associated with liberal decay.^[57] While largely theoretical as of 2025, with no widespread implementations, CGC has influenced post-liberal policy discourses, particularly in conservative circles debating administrative deference and cultural renewal.^[14]

References

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Mar 31, 2020 · Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, ...
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Adrian Vermeule, Common Good Constitutionalism (2022). Abstract: The way that Americans understand their Constitution and wider legal tradition has been ...
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Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, ...
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Jan 10, 2023 · In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, ...
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In the absence of any serious jurisprudential foundations, Vermuele's so-called “common good constitutionalism” is just “politics by other means.”.
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Dec 1, 2022 · In this book, Adrian Vermeule argues that a “classical law” system, derived from a combination of Roman, continental, and English common-law legal systems,Missing: critique | Show results with:critique
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You should also keep in mind that by the “common good” Aristotle means the common good of the citizens, and not necessarily all the residents of the city.
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Feb 26, 2018 · According to a common good conception of political morality, members of a political community stand in a social relationship with one another.The Common Good in Politics... · The Common Good in Civic...
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Natural Law | Internet Encyclopedia of Philosophy
The first precept of the natural law, according to Aquinas, is the somewhat vacuous imperative to do good and avoid evil. Here it is worth noting that Aquinas ...Two Kinds of Natural Law Theory · Classical Natural Law Theory
[12]
Aquinas's Common Good - Law & Liberty
Sep 16, 2022 · It's not just an extrinsic good yeah, that the community pursues, but the common good really does mean that human beings can be properly human.
[13]
Roman law - Justinian Code, Civil Law, Corpus Juris Civilis
Sep 6, 2025 · When the Byzantine emperor Justinian I assumed rule in 527 ce, he found the law of the Roman Empire in a state of great confusion.
[14]
The Theory, Born at Harvard, That Could Remake Right-Wing ...
a new reading of the Constitution which promotes “legal strictures, possibly ...
[15]
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5178&context=lcp
[16]
Common Good Constitutionalism - Vermeule, Adrian - Amazon.com
A compelling case for reviving the classical legal tradition of promoting the common good, challenging originalism and living constitutionalism. See more.Missing: antecedents | Show results with:antecedents
[17]
Against Living Common Goodism - The Federalist Society
Apr 5, 2022 · ... common-good constitutionalism—a variant of what I call living common goodism. Vermeule's approach, in his words, “take[s] as its starting ...
[18]
[PDF] A Critique of Professor Vermeule's New Theory - NDLScholarship
COMMON GOOD CONSTITUTIONALISM: RECOVERING THE CLASSICAL LEGAL. TRADITION. By Adrian Vermeule. Polity Press. 2022. Jeffrey A. Pojanowski* & Kevin C. Walsh**.
[19]
[PDF] myths of common good constitutionalism - conor casey* & adrian ...
The common good enters into the very definition of rights themselves, from the beginning. There is no question of “overriding” or “interfer- ing” with the ...
[20]
Flourishing, Virtue, and the Common Good Constitutionalism
In Common Good Constitutionalism, Professor Adrian Vermeule articulates a conception of the common good. Vermeule has much to say about the common good, ...
[21]
[PDF] Common Good Constitutionalism - Duke Law Scholarship Repository
Aug 6, 2025 · Adrian Vermeule, Democracy, Disagreement, and Authority: A Response to the Symposium on. Common Good Constitutionalism, 69 AM. J. JURIS. 241 ( ...
[22]
Thomas Aquinas versus Adrian Vermeule - Acton Institute
Apr 7, 2020 · By Vermeule's account, the common good to be promoted by the law does appear to be the complete fulfillment (in the sense of all-round human ...
[23]
Book Review: Common Good Constitutionalism by Adrian Vermeule
Sep 6, 2022 · From a Christian perspective, Aquinas makes subtle but decisive revisions to Aristotelian theory. For our purposes, two points are crucial ...
[24]
[PDF] COMMON GOOD CONSTITUTIONALISM, NATURAL LAW, AND ...
Apr 6, 2023 · According to Vermeule's own words, CGC is not meant to be an innovation, but rather a recovery and adaptation of the classical legal tradition “ ...
[25]
The Living Voice of the Law: Debates over Common Good ...
Feb 20, 2023 · To critics, the common good is at best a pretense for some yet unspoken motivation; at worst, it is the coercive imposition of a peculiar ...<|control11|><|separator|>
[26]
Common Good Constitutionalism vs. Natural Law Originalism
Jun 17, 2024 · But common good constitutionalists like myself and Professor Vermeule argue that as principles of natural law apply ipso jure, that is, as a ...
[27]
[PDF] Common Good Constitutionalism: An Introduction
Common good constitutionalism is a theory of constitutionalism and constitutional law, grounded in the classical legal tradition. It is influenced by both its ...<|separator|>
[28]
Classical Natural Law, Common Good Constitutionalism, and the ...
Apr 16, 2025 · Common good constitutionalism is a theory of constitutionalism and constitutional law, grounded in the classical natural law tradition.[1] It is ...Missing: antecedents | Show results with:antecedents
[29]
Mirrors for Princes and Common Good Constitutionalism, by Mark P ...
Nov 12, 2022 · Common good constitutionalism appears to permit (indeed, require) the executive ... executive and administrative power to independent scrutiny.
[30]
Common Good Constitutionalism and the Problem of Administrative ...
May 10, 2022 · This article responds to the theory of Common Good Constitutionalism, as posited by Adrian Vermeule. He argues that a powerful centralized government composed ...
[31]
[PDF] COMMON GOOD CONSTITUTIONALISM AND COMMON GOOD ...
Jan 22, 2024 · I initially conceived of common good originalism as a direct re- sponse to common good constitutionalism, and it remained that way until I began ...
[32]
[PDF] A CRITIQUE OF ADRIAN VERMEULE'S COMMON GOOD ...
Vermeule argues for a method of interpreting and applying the Constitution (and of law-making in general) that he calls “common good constitutionalism.” Common ...
[33]
[PDF] Originalism, Common Good Constitutionalism, and Transparency
From how it has been presented, defended, and interpreted so far, common good constitutionalism uses malleable terms like “common good” and “flourishing,” ...
[34]
[PDF] Originalism and the Practice of Common Good Constitutionalism
Common good constitutionalism rightly understood is a species of originalism because the original public meaning of constitutional texts depends upon and ...
[35]
"Politics by Other Means: The Jurisprudence of “Common Good ...
Abstract. Professor Adrian Vermeule proposes an alternative to what he sees as the two dominant schools of constitutional interpretation in the United States: ...
[36]
[PDF] Toward a Liberal Common Good Constitutionalism for Polarized Times
understands that the common good is a generic concept that is common to many political and constitutional theories, not a. 88. Id. 89. United States v ...
[37]
Gladden Pappin on X: "Originalism had a good run. Time for ...
Time for common-good constitutionalism, reason of state ... Gladden Pappin · @gjpappin. Originalism had a good run. Time for common-good constitutionalism ...
[38]
Episode 3: On Common Good Constitutionalism - Postliberal Order
Feb 21, 2023 · In episode 3, Adrian Vermeule discusses his 2022 book Common Good Constitutionalism with Patrick Deneen, Gladden Pappin and Chad Pecknold.Missing: thinkers | Show results with:thinkers
[39]
In Defense of 'Common Good Constitutionalism' - Crisis Magazine
Apr 13, 2020 · In Defense of 'Common Good Constitutionalism' ... He is an assistant editor at The Josias, an online manual of Catholic social teaching and ...
[40]
Integralism and the Common Good: Selected Essays ... - Amazon.com
The authors whose writings appear in this volume—most of them first published at The Josias—share the conviction that there is urgent need to combat the errors ...
[41]
The Question of Catholic Integralism: An Internet Genealogy
May 29, 2020 · Cist., among the founders of The Josias, the “online manual” of Catholic integralism. ... Common Good Constitutionalism and Integralism ...<|control11|><|separator|>
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Common Good Constitutionalism: Recovering the Classical Legal ...
So, for Vermeule, US public authorities have both a moral and a legal duty to promote the common good. Vermeule's argument that there is a US legal duty to ...
[43]
The Problem With “Common Good Constitutionalism”
Apr 7, 2020 · Vermeule's “common-good constitutionalism” falls apart because it rejects the principles of methodological individualism.
[44]
Deep-State Constitutionalism - Claremont Review of Books
Vermeule does not (with one odd exception) propose that judges impose the common good. Instead, he favors a radical deference to administrative state expertise ...<|control11|><|separator|>
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Originalism Is Good for the Common Good - The Federalist Society
Jul 29, 2024 · Originalism advances three specific kinds of common good relevant to the policy handbook: economic growth, manufacturing, and industrial development.Missing: distinctions | Show results with:distinctions
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[PDF] linda c. mcclain* & james e. fleming
Jan 19, 2024 · To be sure, in Common Good Constitutionalism, Vermeule indicates that he seeks to put aside or bracket deeper comprehensive religious views ( ...
[47]
Challenging common good constitutionalism - Taylor & Francis Online
that public authorities should promote the common good — and a particular claim about the ...
[48]
Natural Law, the Common Good, and Limited Government
Aug 10, 2022 · The natural law account recognizes that liberty is an essential instrumental good that governments must respect precisely because the political ...
[49]
Americans' declining trust in government, each other: 8 key findings
Jul 22, 2019 · Americans say the public's trust has been declining in both the federal government and in their fellow citizens.
[50]
Balázs Orbán to The Telegraph: 'This is how Hungary climbed the ...
May 13, 2025 · The country's birth rate rose from just 1.25 births per woman in 2010 to 1.52 by 2022, above the EU average.
[51]
Common Good Constitutionalism by Adrian Vermeule - jstor
Adrian Vermeule, Common Good Constitutionalism, Cambridge, UK: Polity Press, ... Vermeule “endorses the administrative state as the institution best charged.
[52]
the Political Executive, Administrative State, and Common Good by ...
Apr 21, 2023 · Professor Vermeule's 'Common Good Constitutionalism' (Polity 2022) prefaces all its discussion of executive power and the administrative state.
[53]
[PDF] COMMON GOOD CONSTITUTIONALISM AND COMMON GOOD ...
Jan 22, 2024 · COMMON GOOD CONSTITUTIONALISM AND. COMMON GOOD ORIGINALISM:A CONVERGENCE? JOSH HAMMER. *. Three years ago now, Harvard Law School Professor ...
[54]
Rights, Common Good, and the Separation of Powers - Foran - 2023
Nov 3, 2022 · Common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to ...
[55]
Forget originalism; some conservatives back 'common-good ...
Feb 19, 2025 · Common-good constitutionalism is based on the idea that government helps direct society generally “toward the common good, and that strong rule ...Missing: distinctions | Show results with:distinctions
[56]
Common Good Constitutionalism and Vaccine Mandates: A Review ...
Feb 1, 2022 · As James Gordon put it, for Harlan, governments were not “tolerable nuisances or threats to individual economic liberty. Rather, they were the ...<|control11|><|separator|>
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[PDF] THE “COMMON-GOOD” MANIFESTO - Harvard Law Review
In Common Good Constitutionalism, Professor Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally ...