Common good constitutionalism
[6] In an article in The Atlantic in March 2020, Adrian Vermeule suggested that originalism – the idea that the meaning of the American Constitution was fixed at the time of its enactment, which has been the principal legal theory of conservative judges and legal scholars for the past 50 years, but which Vermeule now characterizes as merely "a useful rhetorical and political expedient" – has outlived its usefulness and needs to be replaced by what he calls "common-good constitutionalism".
[1] Common good constitutionalism has garnered a mix of responses, with many praising its recognition of classical legal theories, while others fear that it could lead to judicial fiat.
[10] Conservative columnist George F. Will described Vermeule's "common-good constitutionalism" as "Christian authoritarianism — muscular paternalism, with government enforcing social solidarity for religious reasons.
"[21] Writing in the Modern Law Review, University of Glasgow legal scholar Michael Foran said the theory offers "powerful critiques of the foundational assumptions of liberal constitutionalism".
"[23] One scholar noted its potential relevance for environmental law, stating that "[E]nvironmental advocates can benefit both from considering the common good constitutionalist approach in its own right and as a catalyst for action.
"[24] Various practicing lawyers have praised common good constitutionalism as positively contributing values and rationales that are perceived by some to be missing from the political and judicial discourse.
[29] David Dyzenhaus has heavily criticized Vermeule's conception of Common Good Constitutionalism, hailing it an "authoritarian" idea seeking to instill "Christian theocratic rule".
[30] He criticizes Vermeule for invoking "justification [via] a body of allegedly timeless and universal principles that animate right-wing Catholics and Evangelicals in the US", and for "worshipping the executive" which can put those ideals into practice.
In particular, the enthusiasm for restrictions on abortion and reproductive rights and heavy reliance on jurists who endorse "the exclusion of women from full participation in civic, political, and economic life" make her doubt whether women's rights are reasonably secure under the providence of the common good; the prevalence of 'natural law' values which promote segregation and discrimination, and the fact that Vermeule and his associates are "notably silent about problems like religiously-inspired racism and white supremacy" give rise to further concerns that Common Good Constitutionalism, in practice, advocates for a view of ethics palatable only for religious conservatives who share Vermeule's own moral values.
Vermeule’s scholarly contribution is too thin — in failing to engage with the literature, and in leaving so many key questions unanswered (or entirely unaddressed) — and, as a political manifesto, it is unlikely to persuade any well-informed ‘floating voters’ to embrace his vision of Vermeulitania".
