Myths of Common Good Constitutionalism

Harvard Journal of Law and Public Policy, Vol. 45, No. 1, 2022 103-146.

Harvard Public Law Working Paper No. 22-09

44 Pages Posted: 15 Feb 2022 Last revised: 9 May 2022

See all articles by Conor Casey

Conor Casey

University of Liverpool School of Law & Social Justice

Adrian Vermeule

Harvard Law School

Date Written: February 9, 2022

Abstract

This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism.

Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin.

Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.

Keywords: Common good, classical legal tradition, constitutional interpretation, constitutional design

Suggested Citation

Casey, Conor and Vermeule, Adrian, Myths of Common Good Constitutionalism (February 9, 2022). Harvard Journal of Law and Public Policy, Vol. 45, No. 1, 2022 103-146., Harvard Public Law Working Paper No. 22-09, Available at SSRN: https://ssrn.com/abstract=4030763

Conor Casey

University of Liverpool School of Law & Social Justice ( email )

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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