Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the Constitution of the United States with his book, Common Good Constitutionalism: Recovering the Classical Legal Tradition. As scholars self-consciously working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Yet in reading and rereading the book, we found ourselves frustrated with it, notwithstanding the apparent agreement we shared with the author at some abstract level of principle. And that abstraction, it turns out, is just the problem with the book’s application of the classical legal tradition to constitutional law. All the right concepts are there for a sound approach to constitutionalism: understanding law as a reasoned ordinance, for the common good, authored by one with responsibility for the community, and promulgated. Too often, though, the only thing missing from this theory of constitutional law was a law, namely the Constitution of the United States.
Kevin C. Walsh, Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule’s New Theory, 98 NOTRE DAME L. REV. 403 (2022) (with Jeffrey A. Pojanowski).