5 offers illustrative applications of common good constitutionalism in various domains: the administrative state and deference to agencies; problems of subsidiarity and federalism; and then finally the theory of rights, such as the freedom of speech. I approach these topics partly as a matter of normative justification but partly also as a matter of fit49 – suggesting, in other words, that our law is and always has been susceptible of being read in light of the common good. The amnesia of our law about the classical tradition does not at all mean that law’s intrinsic nature has been wholly abandoned. On the contrary, I suggest that the centerpiece of our operative constitutional order, the administrative state, is structured and suffused by principles of legality that order it to the common good.
I take particular pains to dispel the mistaken assumption that common good constitutionalism is incapable of recognizing rights. Under common good constitutionalism, rights very much exist, but are grounded and justified in a different way than under standard autonomy-based liberal theories. Common good constitutionalism does not aim to maximize the autonomy of each person or citizen, subject to the like autonomy of all; that is antithetical to the idea of a genuinely common good. But the classical legal tradition has a rich account of rights, rooted in the basic idea of ius as what is due to each. On this account, rights exist to serve, and are delimited by, a conception of justice that is itself ordered to the common good. It is definitely not that the common good “overrides” rights; rather it defines their boundaries all along. Liberty on this conception is taken to be a bad master, but a good servant. Common good constitutionalism makes no fetish of Liberty, but protects liberties as component parts of the common good and contributors to it.
In the brief conclusion, I return to the relationship between common good constitutionalism and the fissure that developed in American public law sometime after World War II, becoming especially marked in the 1960s. I argue by analogy: we must do through a reorientation of thought, and on a large scale, what courts do on a smaller scale when they overturn a recent deviant precedent in order to revert to an earlier, long-standing line of precedent that is better justified in principle, and that fits better with the legal landscape as a whole.
Scope and Ambitions
This is the sort of book that might be done in either seventy thousand words or seven hundred thousand. I have opted for the former, on both circumstantial and methodological grounds. My intended audience is neither the student of first-order policy questions, nor the professional student of jurisprudence. (In the Anglophone world, at least, the latter have mainly opted to immure themselves in a sterile research program of hard positivism.) Rather my audience is the intelligent observer of the law, whether or not a lawyer, who intuits that something has gone very wrong with our law and our legal academy, but isn’t sure exactly how or why. At present, there is widespread and increasing dissatisfaction with establishment progressive rights-talk and establishment originalism. Thus timeliness is a consideration, and the book seemed more likely to make a contribution if it appeared sooner rather than later.
The methodological point is that sometimes a broad sketch of a distant scene helps the unfamiliar observer apprehend it more clearly than does a detailed landscape. The thesis that the classical heritage of our law can be recovered and adapted for current and future conditions is sufficiently unfamiliar, and, when first ventilated, provoked such strangely violent reactions from both progressives and originalists,50 that it may be better to introduce it by degrees. I therefore provide an overall sketch of a view and a program, with illustrative applications, rather than a comprehensive treatise on the implications of common good constitutionalism in area after area. The notes are kept light, with no pretense of historical or doctrinal completeness. I hope to spark enough interest that others will explore similar themes; indeed they have already begun to do so.51 A model and inspiration for the book is Charles Black’s short work on Structure and Relationship in Constitutional Law52 – on a per-word basis, among the most influential works of legal theory.
Notes
1 1. There were of course second-order debates about how local law, ius proprium, and the ius civile or civic law related to the ius commune generally and to the natural law (ius naturale) and law of nations (ius gentium). By and large, the impulse of the jurists was to harmonize sources through interpretation wherever possible, rather than force the issue of which body of law had priority in a particular jurisdiction.
2 2. See generally Charles Donahue, Jr., Ius Commune, Canon Law, and Common Law in England, 66 TUL. L. REV. 1745 (1992) (“In the realm of basic principles, organizing ideas, techniques of argumentation, and habits of thought, the parallels are sufficiently great that one might want to call the common law simply a variant, admittedly an eccentric variant, of the multitude of legal systems that ultimately derive from the ius commune”); Richard Helmholz, Magna Carta and the Ius Commune, 66 U. CHI. L. REV. 297 (1999); RICHARD H. HELMHOLZ, NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE (2015) (hereafter “Helmholz, Natural Law”); Patrick J. Smith, Sir John Fortescue and the Ius Commune, https://iusetiustitium.com/sir-john-fortescue-and-the-ius-commune (“The influence of the ius commune on Bracton and Glanvill is well known and well documented. But it’s worth observing that this influence continued well after the foundation of the English legal tradition and it constitutes, therefore, an important part of the concrete order underpinning modern American law”). Overall, the following judgment seems entirely sound:[B]oth English and continental law formed part of the very same legal tradition. Their specific technologies or solutions might have varied to some degree or the other, but they shared a common genealogy that bound them together more strongly than that which drew them apart…. English common law and continental civil law formed part of a single European tradition from which they both drew as well as contributed.TAMAR HERZOG, EUROPEAN LAW AND THE MYTHS OF A SEPARATE ENGLISH LEGAL SYSTEM 22–23 (2018) (hereafter “Herzog, Myths”). See also TAMAR HERZOG, A SHORT HISTORY OF EUROPEAN LAW: THE LAST TWO AND A HALF MILLENNIA 167–82 (2018) (hereafter “Herzog, European Law”). As I discuss below, a corollary of all this is that constitutional lawyers can easily go wrong by assuming that references to the “common law” in the founding era exclude the ius commune. In fact the ius commune was itself part of the common law, broadly understood.
3 3. See DIG. 1.1 (Ulpian, Institutes 2) (A. Watson, trans., 2009). See also THOMAS AQUINAS, SUMMA THEOLOGICA, pt. I-II, q. 90 art. 4 (Fathers of the English Dominican Province, trans., Christian Classics reprt. 1981). For a modern account of legislation as reasoned governance, see Richard Ekins, Legislation as Reasoned Action, in GREGOIRE WEBER ET AL., LEGISLATED RIGHTS: SECURING HUMAN RIGHTS THROUGH LEGISLATION (2018).
4 4. For an early and classic explication of a somewhat similar point, see generally H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1984). For more recent sources, see note 241 below, and especially the excellent distillation in Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 LAW AND HISTORY REVIEW 321, 324 (2021):Originalists’ understanding of constitutional writtenness … is anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century. Founding-Era constitutionalists by and large were not positivists. They tended to think that much of law was “out there” – like the principles of mathematics or natural philosophy – awaiting discovery through reason and observation. No doubt plenty of law was made by human beings, and understanding how different kinds of law interacted and fit together posed vitally important questions. But it was impossible to understand law – and most of all fundamental law, of which constitutions, as the highest municipal authority, were a central part – without understanding its non-positivist dimensions. To a degree that cannot be ignored, those who made the United States Constitution presupposed this conception of law and its attendant understanding of constitutional content…. If we are interested in understanding the original Constitution – the one that eighteenth-century actors made, recognized, and debated – then we must see their work from the non-positivist perspective that once predominated and that informed their choices. Only then can we begin to make sense of the written constitution