Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory

61 Pages Posted: 1 Nov 2022 Last revised: 28 Nov 2022

See all articles by Jeffrey A. Pojanowski

Jeffrey A. Pojanowski

Notre Dame Law School

Kevin C. Walsh

Columbus School of Law, The Catholic University of America

Date Written: October 27, 2022

Abstract

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. As scholars working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Nevertheless, we find Vermeule's rendition wanting. He neglects the way in which the classical legal tradition calls for obedience to the Constitution of the United States as not just the law, but also a law—an ordinance of reason, for the common good, made by one with authority, and promulgated. Vermeule’s version of constitutionalism, which too often substitutes Dworkin’s hermeneutics for a classical understanding of law, is attentive to certain conceptions of reason and the common good, but inattentive to authority and promulgation. With respect to all four of these elements, moreover, Vermeule’s constitutionalism is unanchored historically. He argues for “classical constitutionalism” that is not “enslaved to the original meaning of the Constitution.” But obedience to original law except as lawfully changed is not akin to enslavement that one must overcome. A real law deserves our real obedience, but Vermeule’s version of common good constitutionalism is indifferent—rather than obedient—to the promulgated Constitution. Vermeule's new theory of common good constitutionalism is not a sound classical approach to our Constitution, but rather a deft Dworkinian account that fits and justifies a different order than the one we have inherited.

Suggested Citation

Pojanowski, Jeffrey A. and Walsh, Kevin C., Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory (October 27, 2022). Notre Dame Law Review, Vol. 81, p. 403, 2022, Available at SSRN: https://ssrn.com/abstract=4259519

Jeffrey A. Pojanowski (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

Kevin C. Walsh

Columbus School of Law, The Catholic University of America ( email )

3600 John McCormack Road, NE
Washington, DC 20064
United States

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