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Common Good Constitutionalism

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Common Good Constitutionalism

Adrian Vermeule’s constitutional theory holding that law should be interpreted in light of the common good rather than original intent or textualism; published as a book in 2022; the legal arm of Catholic Integralism

What It Is

Common Good Constitutionalism (CGC) is Vermeule’s answer to originalism: where conservatives have long argued that the Constitution should be interpreted according to the original intent or public meaning of its text, CGC argues that legal interpretation is always already substantive — you cannot avoid making judgments about human flourishing and social order. The pretense of “neutral” textualism is a liberal ideology masquerading as method.

Vermeule argues for a jurisprudence that is openly substantive: courts should interpret law in ways that promote the common good, understood in light of natural law and Catholic social teaching. This means:

  • Deference to administrative authority in areas affecting social welfare
  • Skepticism of libertarian readings of rights
  • Active use of law to promote morality, family stability, community, and order
  • Rejection of what Vermeule calls “libertarian legalism”

The “Famous Trinity” and Its Problems

Vermeule defines the common good using what he calls the “famous trinity” or classical “triptych”: justice, peace, and abundance. He supplements these with a “modern triptych” of health, safety, and security. These six abstract ends — justice, peace, abundance, health, safety, security — are treated as “the straightforward and objective aims of all healthy political life.” He also insists that this sixfold common good is “unitary and indivisible” rather than something understood in the aggregate.

Notice what is missing: liberty. Vermeule carefully subsumes freedom as a secondary good in his schema. The Declaration of Independence declares “Life, Liberty and the pursuit of Happiness” as unalienable rights — neither liberty nor happiness makes it onto Vermeule’s sixfold list. The Constitution’s Preamble includes “secure the Blessings of Liberty to ourselves and our Posterity” — Vermeule’s list covers all of the Preamble’s aims except this one. He addresses this directly, channeling Patrick Deneen’s conception of virtue: “On the classical conception, ‘liberty’ is no mere power of arbitrary choice, but the faculty of choosing the common good.” Field: “This is, at best, a fudge.”

Legal scholars Micah Schwartzman and Richard Schragger suggested that Vermeule’s vagueness was symptomatic of a reticence to disclose the religious basis of his outlook. They noted that, while Vermeule claims merely to provide a framework rather than a blueprint, he insists that some specific policy outcomes follow from his theory — including “a constitutional right to life for ‘unborn children,’ most likely a prohibition on gay marriage, bans on pornography and perhaps blasphemy, and restrictions on various forms of dangerous or false speech.” Those specifics only follow if you accept Vermeule’s legal sources as infallible.

Vermeule’s fuller framework invokes the “classical legal tradition” — a set of background assumptions, unwritten norms, modes of interpretation, and aims that he claims were assumed by the best jurists of the past and informed the American founders. He appeals to Blackstone and English Common Law, Roman Civil law, natural rights and natural laws, Aristotle and Aquinas. He claims these disparate strands amount to a singular “matrix in which American law grew” that “afforded broad scope for public authorities to act in service of the common good.”

Field: this is “blatant historical retrofitting and is impossible to reconcile with the historical record.” The claim that individual liberty has “traditionally” been a secondary value in the American constitutional tradition is simply false. Deneen himself was more honest: in Why Liberalism Failed he called the Constitution “the applied technology of liberal theory” whose founders hoped to expand “the sphere of individual liberty.”

Vermeule presents Common Good Constitutionalism as a project of radical recovery — against a background of what he calls “our legal culture’s amnesia.” But the tradition he is recovering is largely a construction.

The Originalism Debate

Vermeule’s challenge to originalism is pointed. In a 2020 Atlantic essay, he argued that originalism has failed conservatives: despite decades of conservative jurisprudence, the Supreme Court has continued to expand individual rights in directions conservatives oppose (Obergefell, etc.). Bostock v. Clayton County, Georgia (2020) — in which a Federalist Society–vetted “originalist” justice, Neil Gorsuch, ruled that federal anti-discrimination laws protect LGBTQ employees — seemed to confirm this failure. The problem is not bad judges but the wrong method.

CGC is not “living constitutionalism” in the progressive sense — it does not defer to evolving social consensus. It defers to the classical natural law tradition as the authoritative account of human goods.

Relationship to Integration from Within

CGC is the legal instantiation of the Integration from Within strategy. Where that essay argued for Catholic infiltration of liberal institutions, CGC provides the jurisprudential framework: once you control the courts and the administrative state, you interpret law in ways that advance the common good. The strategy and the doctrine reinforce each other.

Popularization: The Postliberal Network

Common Good Constitutionalism (published 2022) struck a nerve. Upon publication, Vermeule became something of a cult figure in the upper echelons of the Catholic New Right. The Postliberal Order Substack was founded just prior to the book’s publication (February 2022).

Josh Hammer was probably the most prolific popularizer of common-good constitutional thinking. An early NatCon enthusiast and editor at Newsweek, Hammer produced a series of essays including “Common Good Originalism,” “Undoing the Court’s Supreme Transgression,” “Who’s Afraid of the Common Good?”, “A Better Originalism,” and “The Telos of the American Regime.” Unlike Vermeule, Hammer tried to situate CGC within the American originalist tradition and the Jaffa/Aristotelian/natural-law framework. He called his variant “moral originalism” or “Manly Originalism.”

Roger Kimball’s New Criterion devoted a special symposium to the theme in January 2022.

The Steubenville Conference (October 2022): Sohrab Ahmari organized a conference around Vermeule’s book — “Restoring a Nation: The Common Good in the American Tradition” — held in Steubenville, Ohio. Attendees: all the writers for Postliberal Order (Vermeule, Deneen, Pappin, Pecknold), R.R. Reno (First Things), Matthew Schmitz (Compact), Josh Hammer, JD Vance (a recent Catholic convert, elected senator from Ohio the following month), Michael Lind (LBJ School, UT; critic of libertarianism; contributor to Compact), and Rachel Bovard (who struck a culture-warring tone: “Nothing in the last thirty years suggests that the left’s fascist orgy is somehow going to abate”). John A. Burtka IV of the ISI was also there.

Harvard University also hosted a conference on the book. In fall 2023, the Harvard Journal of Law & Public Policy devoted an entire issue to CGC — including a powerful liberal rejoinder by Linda C. McClain and James E. Fleming (“Toward a Liberal Common Good Constitutionalism for Polarized Times”) that pointed out liberals believe in the common good too, and that Vermeule’s book relied on “mysteries and vagaries about the actual substance of the good.”

Significance and Reception

CGC was controversial both in legal academia (for rejecting the dominant methodological frameworks) and within conservatism (for threatening the originalist consensus that has been the right’s judicial strategy since the Federalist Society).

Field: CGC represents one of the most intellectually serious attempts to provide a jurisprudential basis for the postliberal project — and that seriousness makes it more dangerous, not less. The arguments are sophisticated enough to attract serious engagement from legal scholars who would dismiss cruder versions.

The key unanswered questions remain: What is the common good? Who decides? What limits the court’s ability to impose it? What about individual rights? For Vermeule, integralism supplies the answers — whether they line up with American constitutional history or not. The “common good” turns out to be “as flexible a concept as any good Schmittian could hope for.”

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