For the last 50 years, the two prevailing constitutional interpretation methodologies have been Originalism and Living Constitutionalism. The former treats the Constitution almost like a contract and demands that interpreters focus on the ordinary contemporary understanding its terms would have received when they became law. The latter treats the Constitution as a charter for the structure of a new government that would survive and mature as needed to protect both the nation and its people as new threats to government and civil liberties arise. Professor Adrian Vermeule’s book Common Good Constitutionalism offers a new approach to constitutional interpretation, one that gives far greater prominence to the need to protect and advance the good of the nation as a whole than either of the other two theories would require. His theoretical justification for the new approach stems from the classical or natural law principle that a nation may demand that its interests outweigh those of any individual or group. He criticizes Originalism as a morally sterile, positivistic approach to legal interpretation, and Living Constitutionalism as concerned only with the interests of individuals and groups without regard for those of the polity.
Professor Vermeule, however, does not give sufficient weight to what the Constitution did—viz., create a democratic republic whose elected representatives would make moral judgments—than what a court may do when reviewing their work. He also fails to address a goodly number of issues that any new theory of constitutional interpretation must address to serve the role that he posits for Common Good Constitutionalism. He does not give adequate weight to the rationale endorsed in Marbury v. Madison that it is the text that governs, not background principles, however weighty they might be. He does not address how his theory affects antidiscrimination law, the application of the Bill of Rights to the states, or principles of stare decisis. In sum, Common Good Constitutionalism, while valuable, is better seen as a codicil to Originalism (to which it is closer than Living Constitutionalism) than as an entirely new, different will.
Paul J. Larkin,
America’s Two Pastimes: Baseball and Constitutional Law; Review of Adrian Vermeule, Common Good Constitutionalism,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol72/iss4/10