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Common Good Constitutionalism Could Influence Judicial Practice

Dec. 7, 2022, 9:00 AM

Recent years have seen the rise of a theory of constitutional interpretation known as “common good constitutionalism.” This Insight considers how that theory has taken shape, and whether it is likely to make the jump from academic theory to judicial practice.

Background

Originalism and textualism are generally associated with a politically conservative approach to constitutional interpretation. These theories—modern versions that developed in reaction to dramatic rulings by the Earl Warren Supreme Court of 1953-1969—are now a fixture of conservative judging.

Judges and justices on both the right and left claim they will interpret the Constitution based on its original meaning.

Recently, however, conservative critics argue that originalism is overly procedural and ill-suited for conservative goals. This critique reached a head in the wake of Bostock v. Clayton County, a statutory interpretation case.

The Supreme Court concluded that the prohibition on discrimination on the basis of sex in the Civil Rights Act of 1964 protected gay and transgender employees from discrimination. If textualism meant results like this, what good was it for conservatives?

Common Good Constitutionalism

In March 2020, Harvard law professor Adrian Vermeule wrote in The Atlantic that originalism had “outlived its utility” and had “become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.”

Vermeule urged an alternative common good constitutionalism, starting from moral principles “that conduce to the common good” that would be read into the “majestic generalities and ambiguities of the written Constitution.”

These principles include the promotion of human flourishing, respect for hierarchies within society, families, and unions, and a “candid willingness to ‘legislate morality.’”

Vermeule’s common good constitutionalism has attracted a number of adherents. Earlier this year, he published a book further explaining his theory. Prominent academics have debated and discussed common good constitutionalism, most recently at an October 2022 symposium hosted by the Harvard Journal on Law and Public Policy.

While common good constitutionalism is making waves in academia, questions remain as to whether it will catch on in practice and what form this approach may take.

Theory in Practice

In the months since Vermeule’s book was published, references to it have appeared in six judicial opinions. Several of these are fleeting references—citing Vermeule for broad claims about the nature of law or policy goals. Others go into more depth.

In United States v. Tabor, the Navy-Marine Corps Court of Criminal Appeals grappled with the question of whether a law prohibiting sexual abuse of a child applied to a case where the victim was asleep and where the defendant was communicating with the child’s mother by telephone.

Judge John Stephens wrote a concurring opinion critiquing the majority’s textualist approach and urged a common good constitutionalism approach instead.

The job of the classical lawyer, Stephens argued, was to determine the common good desired by a statute and to interpret the statute in a manner achieving that common good. In the context of the sexual abuse statute, Stephens started with the “unwritten law” that “sexualizing children is always wrong” and moved on from there.

In doing so, Stephens laments the “re-casting of sexual mores,” and claims that consent has transformed “nearly every type of private sexual activity into a licit act.”

According to Stephens, “legal progressive[s]” are supposedly unable to say why sexual conduct with children ought to be prohibited, and if children are deemed able to consent, such activity purportedly resembles liberties protected by Lawrence v. Texas. If common good constitutionalism regularly requires judges to express such candid political views, perhaps it will lead to a more transparent judiciary.

Practical Applications Going Forward

Will common good constitutionalism move from the pages of academic books and journals into the practice of judges? With six judicial citations of Vermeule’s book within the year of its release, this might happen.

Vermeule’s formulation also promises results, including the end of rights to abortion, gay marriage, a fair amount of free expression, and expansive standing rules.

And yet, the Supreme Court’s recent turn to dramatic conservative results may take the wind out of common good constitutionalism’s sails. With the court overruling Roe v. Wade and expanding the rights to bear arms and the free exercise of religion, those interested in conservative results may see no need for an alternate theory.

Common good constitutionalism is also unpredictable. Its supporters cite the classical legal tradition, yet simultaneously refuse to ground the theory in historical practices.

As a result, the theory may be highly malleable for those who would see it employed to desired political ends—a concern highlighted by Judge William Pryor, who labels the theory “living common goodism.”

Still, judges who want to appeal to future Republican administrations may use common good constitutionalism to signal their conservative bona fides. Common good constitutionalism may have little to offer as an interpretive tool—but it may still have a practical impact as a political device.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Michael Smith is a temporary faculty member at the University of Idaho College of Law whose research focuses on constitutional law and criminal law.