MYTHS OF COMMON GOOD CONSTITUTIONALISM.

• Author: Casey, Conor

[I]f the goal of any society is the common good of its members, it necessarily follows that the purpose of every right is the common good.

Dante Alighieri, de Monarchia 40 (Prue Shaw trans. & ed., 1996).

"[T]o govern is to lead the thing governed in a suitable way towards its proper end."

Thomas Aquinas, De Regno (Gerald B. Phelan trans. 2012).

In this Essay, we take 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 tendentious, question-begging claims, especially for the superiority of originalism.

The past eighteen months or so have seen an outpouring of remarkable claims, from both originalist and progressive legal scholars, about the classical legal tradition and its emphasis on the common good. They include the following, or minor variants of the following:

* Legal and constitutional interpretation in the classical tradition substitutes morality for law and reduces legal questions to all-things-considered moral decision-making from first principles.

* The classical tradition ignores the text and has no respect for posited law.

* An official oath to respect the Constitution and laws requires an originalist approach to constitutional interpretation.

* The classical tradition licenses judges to rule as they see fit for the common good; common good constitutionalism is thus synonymous with judicial supremacy.

* Alternatively, common good constitutionalism is synonymous with executive supremacy and an absence of checks and balances on executive power.

* Common good constitutionalism has no respect for human rights.

* Common good constitutionalism is fatally undermined by the fact that there is and will be disagreement between classical lawyers over the content of the natural law in hard cases.

In what follows, we argue that these claims do not even rise to the level of being either true or false, for they actually fail to join issue with the classical legal tradition; they transparently beg all the critical questions at issue. In other words, they assume their conclusions, assume away the premises of the classical legal tradition, and generally fail to meet the classical arguments on their own terms. They are best understood, not as serious arguments, but instead as myths offered to define and enforce the boundaries of particular socio-legal communities, such as the originalist legal movement, and to comfort its members. 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.

1. THE DEBATE SO FAR

   The hallmark of the classical legal tradition is that law, to be law in the focal sense of that term, (1) must be rationally ordered to the common good of the political community. We have argued, as do others, that the classical legal tradition should be explicitly revived, adapted, and readopted as the intellectual underpinning upon which officials and jurists understand the purpose and ends of political authority, law, and constitutions. The foundation and rapid success of legal theory blogs like Ius & Iustitium (2) and of research projects like the Common Good Project (3) based at Oxford University are a testament to renewed interest in these questions.

   In April 2020, one of us published a short essay in The Atlantic (4) critiquing the dominance of originalist and progressive approaches to law and constitutional interpretation in contemporary legal thought. The essay called for an embrace of 'common-good constitutionalism' in its place--the application of core precepts of the classical legal tradition to questions of public law and constitutionalism. It is fair to say the essay did not go unnoticed. Certain responses ranged from hostile to apoplectic. In a rare joint-defense alliance, both originalist-libertarians and progressives condemned the idea as "dangerous"--as subversive of the United States' important founding principles (5) and an extended apologia for authoritarianism. (6) Rarely have so many advocates of unbridled liberty of thought and discussion encountered an idea that they immediately aimed to stamp as beyond the pale.

   Over time, however, the situation has become quite different. The other present author wrote an article in Public Law defending common good constitutionalism from the misguided critique that it is an intellectual apologia for authoritarianism. Instead, this piece argued that it is an approach to constitutionalism steeped in the classical legal tradition, due to its identification of the primacy of the common good and human flourishing as the justification for political authority and its close linkage of legal interpretation to principles of legal morality conducive to this end. (7) Since then, a series of works, many by younger scholars, has started to draw upon the common good framework, either explicating it as a matter of theory, (8) or applying it in diverse areas of law. (9)

   We, of course, fully anticipate and welcome robust debate both within and about the conceptual paradigm we are sketching. Common good constitutionalism is a theoretical and conceptual framework, not a laundry list of positions, and thus supports as much internal debate and dissension as occurs within, for example, legal positivism. (Consider the interesting debate between Michael Foran and Jamie McGowan, conducted within common good premises, over the scope of judicial review). (10) We therefore stress that our goal here is to outline the core precepts of a rich jurisprudential tradition and how they relate to broad issues of public law theory; it is not to set out a checklist of how these precepts would impact specific legal disputes or the interpretation of contested constitutional provisions in a particular legal system. We also anticipate many will disagree with a constitutionalism informed by the classical legal tradition even when some prevalent myths are dispelled. But disagreement about the classical legal tradition and its relationship to constitutionalism should, at a minimum, be grounded in a sound understanding of the concepts at play.

2. THE CLASSICAL LEGAL TRADITION: A MINI-PRIMER

   To understand the mistakes and tautologies that underpin the critics' views, we need some basics. Accordingly, we begin our response by sketching the foundational premises of the classical legal tradition, whose precepts underpin the operative principles of common good constitutionalism.

   Law in this tradition is understood, as Aquinas famously framed it, as an ordinance of reason promulgated by political authorities for the common good. (11) Law is not the product of the arbitrary will of a ruler, nor is it simply whatever is identified by social convention as law. To count as law in the fullest sense, an ordinance of public authority must rationally conduce to the good of the community for which the lawmaker has a duty and privilege of care.

   But what exactly is the common good? Given its central status in the classical tradition, we begin our sketch with it. Many of the critics seem desperately unaware that the common good is not simply a blank, or a placeholder for whatever subjective preferences any particular official might desire to impose, but rather shorthand for a millennia-old legal framework, worked out over time by a succession of the greatest lawyers in Europe, the British Isles, and the Americas, and absolutely central to Western law as a whole. The claim that the common good is an undefined notion is both spatially and temporally parochial in the extreme.

   Nor is it some sort of recondite theoretical concept, one that workaday lawyering can ignore. Legal texts are full of constitutional, statutory and regulatory phrases like "common good," "social justice" "general welfare," "public interest," "public good," "peace, order, and good government" and other cognates. (12) Such texts must be given some construction or other; it is not as though the issue can simply be avoided. We suggest here that the common good approach worked out in the law over two millennia is the best such construction--and, ironically, the one that is by far the most likely to capture the so-called "original understanding" of the Constitution.

   The Common Good in Politics and Law

   In the classical account, a genuinely common good is a good that is unitary ("one in number") and capable of being shared without being diminished. (13) Thus it is inherently non-aggregative; it is not the summation of a number of private goods, no matter how great that number or how intense the preference for those goods may be. (14) Consider the aim of a football team for victory, a unitary aim for all that requires the cooperation of all and that is not diminished by being shared. The victory of the team, as a team, cannot be reduced to the individual success of the players, even summed across all the players.

   In the classical theory, the ultimate...