Capitol Hill Blue Forums Life and Moral Issues Morality & Society Conservatives proposing “common good constitutionalism'

via Politico.com

According to Politico, Conservatives are proposing "a controversial new theory that challenges many of the fundamental premises and principles of the conservative legal movement. The cornerstone of Vermeule’s theory is the claim that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself” — or, in layman’s terms, that the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them. "

I'm sick and tired of Conservatives telling others how to live. If Conservatives are against abortion - they ought not have one. If Conservatives are against gay-marriage, they should not enter into a gay union.

These people are so damn nosey and in everyone else's business. Enough!

"In practice, Vermeule’s theory lends support to an idiosyncratic but far-reaching set of far-right objectives: outright bans on abortion and same-sex marriage, sweeping limits on freedom of expression and expanded authorities for the government to do everything from protecting the natural environment to prohibiting the sale of porn."
....
"Does originalism — the theory of constitutional interpretation that conservatives have championed for the past 40 years — provide the conservative movement with the sort of intellectual ammunition that it needs to tear down half a century of liberal jurisprudence and rebuild American law on more conservative foundations? Or is it time, now that conservatives have secured a decisive majority on the Supreme Court, for the right to embrace a more aggressive and ideologically assertive legal theory?"

Holy Cow! As if they haven't tortured the Constitution enough.

"Unlike originalists and legal liberals, common good constitutionalists would not “suffer from a horror of political domination and hierarchy,” and they would display a “candid willingness to ‘legislate morality.’” In sharp contrast to libertarian conservatives, common good constitutionalists would favor “a powerful presidency ruling over a powerful bureaucracy.” On the Constitutional front, “The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters [would] prove vulnerable” to new challenges."
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"On both the left and the right, commentators regarded Vermeule’s call for a new “illiberal legalism” with a mix of curiosity and suspicion. In a response that was also published in The Atlantic, University of Baltimore law professor Garrett Epps denounced Vermeule’s thesis as an argument for “authoritarian extremism.” Representing the right-of-center point of view, Barnett dryly observed: “There seems to be something authoritarian in the water of Harvard Law School.”"

What we are really discussing here, is the rebirth of fascism.

Exactly! Rwingers lover their fascism!

I am perusing Vermeule's original Atlantic essay, Beyond Originalism. I'm glad you pointed this out, my friend. The more I learn, the more concerned I get. Originalism is bad enough. This is so, so much worse.

If Orban were a justice.
Gotta tell ya, none of this sounds even remotely "conservative".
What say you?

I think that it is "conservative in name only". I've read the original essay, and it is nonsense, intellectually. But, he does expose some of the chicanery of the "conservative" movement, and the lack of "conservatism" in it. Particularly the ideological, not conservative, basis for "originalism".

I grew up and was educated as a "conservative" in the old sense of the word. This is certainly not that.

"In this sense, common-good constitutionalism promises to expand and fulfill, in new circumstances and with a new emphasis, the Constitution’s commitments to promoting the general welfare and human dignity. Overall, constitutionalism will become more direct, more openly moral, less tied to tendentious law-office history and endless litigation of dubious claims about events centuries in the past. Originalism has done useful work, and can now give way to a new confidence in authoritative rule for the common good."

It reads like "benevolent dictatorship". Now, it does contain some allusions to legitimate concerns, but they are not consistent with the thrust of the argument. Intellectually, it is really shallow.

"As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule. The state is to be entrusted with the authority to protect the populace from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment. Unions, guilds and crafts, cities and localities, and other solidaristic associations will benefit from the presumptive favor of the law, as will the traditional family; in virtue of subsidiarity, the aim of rule will be not to displace these associations, but to help them function well. Elaborating on the common-good principle that no constitutional right to refuse vaccination exists, constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private “rights.” Thus the state will enjoy authority to curb the social and economic pretensions of the urban-gentry liberals who so often place their own satisfactions (financial and sexual) and the good of their class or social milieu above the common good."

I've also been reading the critiques of the book/concept on both the left and the right:

The Problem With “Common Good Constitutionalism” (Hoover)

"Enter Professor Adrian Vermeule of Harvard Law School and his highly controversial recent article Beyond Originalism, which seeks to meld the Dworkinian search for the best moral theory with “common-good constitutionalism,” which he describes as an approach to constitutional interpretation “based on the principles that government helps direct persons, associations, and society generally toward the common good.” He adds “that strong rule in the interest of attaining the common good is entirely legitimate.” Needless to say, Vermeule’s bold argument has earned strong rebukes from legal scholars and writers on both the left and the right."

MYTHS OF COMMON GOOD CONSTITUTIONALISM (Harvard Journal of Law and Public Policy)

"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."

Review: Common Good Constitutionalism (American Enterprise Institute)

"When a widely acclaimed Harvard Law School professor publishes a book that another Harvard Law professor calls “the most important book of constitutional theory in many decades,” it’s certainly worth a look. But Common Good Constitutionalism (Polity, 2022), despite all the praise, is more an embarrassment than a legal masterpiece.

In this book, Adrian Vermeule argues that a “classical law” system, derived from a combination of Roman, continental, and English common-law legal systems,can produce a community that achieves what he calls the “common good.” However, the political structure he devises is highly authoritarian, perhaps even totalitarian."