# Common Good Constitutionalism *Published February 2022 by Polity Press. 270 pages. Author: [[Adrian Vermeule]], Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.* The legal-theoretical counterpart to Deneen's political philosophy — a Harvard Law professor's argument that constitutional interpretation should be guided by the classical natural-law tradition and oriented toward the *common good*, rather than by originalism's obsession with historical text or living constitutionalism's deference to contemporary values. The book challenges not the left but the *conservative legal establishment*: the [[Federalist Society]], originalism, and the entire judicial apparatus that movement conservatives spent fifty years building. It argues that originalism was always a means rather than an end — and that now, with conservative judicial supremacy achieved, the means should be discarded in favor of moral governance. This is the most intellectually dangerous book to the conservative legal establishment since Buckley's challenge to the Yale faculty in 1951 — because it comes from inside the institution (Harvard Law) and attacks not progressivism but the conservative movement's own legal philosophy. ## The Argument ### Against [[Originalism]] Vermeule's central provocation: **originalism is a transitional tool, not a permanent philosophy.** The conservative legal movement needed originalism when it was out of power — as a constraint on progressive judges who were using "living constitution" reasoning to advance liberal social policy. But now that conservatives control the Supreme Court (6-3), originalism's constraint function is unnecessary. Worse: it actively prevents conservative judges from advancing moral goods because it tethers them to 18th-century compromises rather than freeing them to pursue justice. This argument directly threatens the [[Federalist Society]], which has spent five decades building a judicial pipeline premised on originalist methodology. Vermeule is arguing that the pipeline's philosophical foundation should be dismantled now that it has delivered the desired judicial majority. ### The Classical Tradition What should replace originalism? Vermeule argues for a return to the *ius commune* — the classical and medieval natural-law tradition that dominated Western legal thought from Roman law through the 19th century, before it was displaced by positivism and textualism. In this tradition: - Law has a **substantive moral purpose** (the common good, justice, peace, and the flourishing of the political community) - The state has **legitimate authority to direct citizens toward moral goods** — including goods they might not choose for themselves - **Individual rights are not absolute** but are ordered within and by the requirements of the common good - The interpretation of positive law (statutes, constitutions) should be guided by natural-law principles that transcend the text ### The Implications If you take Vermeule seriously, the implications are radical: - **The [[First Amendment]]** does not protect speech that undermines the common good (pornography, blasphemy, perhaps advocacy for positions that damage social cohesion) - **Religious liberty** is not a neutral principle but is ordered toward the true religion (Catholicism, in Vermeule's framework) - **Economic regulation** in the interest of workers, families, and communities is not merely permissible but morally required - **Immigration policy** should be guided by the common good of the existing political community, not by individual rights claims - **Judicial review** should assess whether laws serve the common good, not merely whether they conform to historical text ## The Catholic Framework Vermeule is a Catholic convert (from Episcopalianism) whose legal theory is explicitly grounded in Catholic social teaching — particularly the encyclicals of Leo XIII, Pius XI, and the broader tradition of Catholic natural-law philosophy. The "common good" he references is not a secular utilitarian concept but a theological one: the good of the political community as understood within Catholic social doctrine. This means his theory is simultaneously: - More than originalism (it provides affirmative guidance about what law should achieve) - More controversial (it grounds constitutional interpretation in a specific religious tradition) - More honest about its premises (it doesn't pretend to be neutral or merely procedural) ## Reception and Controversy ### Conservative Establishment The Federalist Society and originalist establishment reacted with alarm. If Vermeule's argument is correct, the entire originalist project — the Scalia legacy, the judicial pipeline, the confirmation battles — was merely tactical rather than principled. This threatens: - The intellectual coherence of the conservative legal movement - The career investment of thousands of lawyers trained in originalist methodology - The rhetorical force of "I'm just following the text" as a defense against accusations of judicial activism ### The New Right The [[New Right]] embraced Vermeule's argument as confirmation of what they already believed: that "neutral" procedural liberalism was always a transitional phase, and that the goal was moral governance. [[JD Vance]], [[Sohrab Ahmari]], and the [[National Conservatism]] circuit treat Vermeule as an ally — the legal theorist providing judicial architecture for their political philosophy. ### The Left Progressive critics noted the irony: conservatives spent fifty years complaining about "judicial activism" and insisting on textual fidelity — and now, having achieved judicial dominance, a Harvard Law professor is arguing they should abandon textual fidelity and pursue… judicial activism in a Catholic direction. The accusation: "originalism was never a principle. It was a tactic deployed when useful and discarded when inconvenient." Vermeule would likely agree with this characterization — and argue that there's nothing wrong with it. Tactics serve ends. The end is justice. Now that the court is positioned to pursue justice, the tactic that got it there can be retired. ## The [[Elite Education Paradox]] Dimension Vermeule is a Harvard Law professor who teaches at the institution that conservatives call the most "woke" law school in America — and whose legal theory would, if implemented, fundamentally transform the liberal legal order that Harvard helped build. He uses his Harvard credential to attack the liberal tradition that Harvard represents. The paradox is structural: only someone with Vermeule's institutional standing could make this argument and be taken seriously; the argument itself would undermine the institution that grants him standing. ## Why It Matters in This KB 1. **It is the legal theory of the post-liberal right**: If [[Why Liberalism Failed]] provides the political philosophy and [[The Flight 93 Election]] provides the rhetorical urgency, *Common Good Constitutionalism* provides the *judicial architecture* for the New Right's governing project. 2. **It threatens the conservative legal establishment from within**: The Federalist Society's entire reason for existence is originalist methodology. Vermeule argues that methodology has served its purpose and should be discarded. This is an internal challenge more dangerous than any progressive critique. 3. **It reveals the Catholic intellectual infrastructure**: The New Right's legal and political theory is disproportionately Catholic — Vermeule, Deneen, Ahmari, Barrett (though she's an originalist), the Claremont-adjacent Catholic intellectuals. *Common Good Constitutionalism* makes explicit what was previously implicit: the "common good" being invoked is a Catholic concept, grounded in Catholic social teaching, advanced by Catholic converts at elite institutions. 4. **It is the honest version of the right's legal project**: Where originalism conceals its goals behind procedural neutrality, Vermeule states his goals openly. This is both his strength (intellectual honesty) and his political liability (it's harder to confirm judges who openly reject neutral principles). ## See Also - [[Adrian Vermeule]] — The author - [[Catholic Post-Liberalism]] — The ideological tradition - [[Patrick Deneen]] — The political philosopher whose work complements this legal theory - [[Why Liberalism Failed]] — The companion political diagnosis - [[Federalist Society]] — The institution whose intellectual foundations this book challenges - [[JD Vance]] — The VP whose politics align with this legal theory - [[Elite Education Paradox]] — Harvard professor uses Harvard credential to attack the liberal legal order Harvard built