Common Good Constitutionalism
by Adrian Vermeule.
Polity, 2022.
Hardcover, 270 pages, $59.95.

Reviewed by Bruce P. Frohnen.

Thirty years on from its victory over Soviet communism, liberal individualism has shown itself to be a spent force. The drive to “liberate” individuals from the constraints of family, church, and the plethora of associations and institutions that make up a healthy civil social life has left people, as Tocqueville predicted over 150 years ago, isolated, weak subjects of an increasingly powerful tutelary state. America’s broadly egalitarian social structure characterized by faith, family, and local self-governance has given way to rule by national and global elites determined to “reset” social, political, and economic life in pursuit of various ideological causes and, especially, the interests of those “plugged in” to international structures of finance and governance. The result has been a radically secular globalism that tells individuals to accept the loss of their independence and way of life in exchange for guaranteed incomes sufficient to keep them in impoverished idleness softened by legalized drugs, mass entertainments, and the lure of various sexual perversions. 

There is, of course, significant opposition to this new order. The dangers of Islamic extremism and mere strong-man rule are obvious. In addition, however, we have seen a rising movement (sometimes termed “populist”) steeped in Western religious, political, and constitutional traditions that, especially in the United States, has drawn the ire of the mainstream press, government agencies, and mobs in the streets, whom government officials seem unwilling to prosecute. The complicated state of party politics and financial influence in the U.S. are playing out before our eyes as increasing numbers of people seem every day more openly disgusted with the current regime and determined to reclaim something of their traditional way of life.

Adrian Vermeule and the Integralist Option

In this context, a small group of Catholic traditionalists terming themselves “integralists” has gained notice for seeming to offer a new path toward social peace that eschews both corporate power and the messiness of democratic politics. Integralists favor using the power of the state to reforge common understanding and pursuit of the common good. Enter Adrian Vermeule. He is a prominent integralist. He is also a Harvard Law Professor. Why do I mention the latter? Because Vermuele’s radical critique of both liberal individualism and the corporate power he identifies with conservatism aims to extend the political and cultural dominance of administrators educated at institutions like his own. Common Good Constitutionalism is, at its core, a justification for expanded rule by credentialed elites within our administrative state, with a view toward their adopting a more friendly attitude toward a certain kind of moral understanding of law and politics.

Vermeule would dispute the relevance of such concerns to the content and purpose of his latest book. In a response to critics, Vermeule and his co-author bemoan the lack of fair, learned, and intelligent engagement with what they say is the focus of Common Good Constitutionalism: what Vermeule calls “the classical legal tradition.”[1] But this legal tradition is as much Vermeule’s creation as a genuine historical fact. Moreover, in the introduction to Common Good Constitutionalism, Vermeule eschews claims to be offering a jurisprudential, legal history, or constitutional argument. Instead, he says, he is offering “an account that aims to put our constitutional order, including the administrative state, in its best possible light.” Thus, while Vermeule’s response to critics seeks to focus attention on the nature and purpose of the “classical legal tradition,” that tradition is itself best understood, by his own admission, as part of his broader political program.

The Administrative State and the Common Good

At least since 2011, when he and Eric Posner published The Executive Unbound: After the Madisonian Republic, Vermeule has defended the legitimacy and wisdom of concentrating power in the executive branch of our federal government, whatever the text of the Constitution might seem to require. In 2016’s Law’s Abnegation: From Law’s Empire to the Administrative State and 2020’s Law & Leviathan: Redeeming the Administrative State (written with Cass Sunstein) he argued that the judiciary’s decision to allow Congress to construct the administrative state, delegating lawmaking power to executive agencies, effectively legitimized that state in that it approved it through and subjected it to more or less “normal” judicial and legal practice. Most recently, Vermeule has become perhaps the most prominent spokesman for integralism, and for a “common good constitutionalism” that, as he argued in an article presaging Common Good Constitutionalism, “should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interests of attaining the common good is entirely legitimate.”[2]

Vermeule’s latest book is, then, an attempt to ground the administrative state in a political morality (his “common good”) and flesh out the legal justifications for putting this political morality into action. This is where his “classical legal tradition” comes in. In painting its general outlines Vermeule incorporates the important work of R. H. Helmholz and others on the nature and longstanding role of the natural law tradition in interpreting laws and constitutions. The natural law tradition is rooted in the ius commune, the amalgam of Roman and canon (Church) laws that developed in Europe beginning in the twelfth century, and which shaped English and American law well into the twentieth. It provided Christendom with principles for judging cases and interpreting statutes in accordance with the demands of justice given the abiding nature of society and the person. Marginalized by contemporary hostility toward recognition of our permanent, God-given nature, the natural law tradition remains with us in common law and equity jurisprudence. It also continues in a number of canons and maxims inconstantly applied by contemporary judges (e.g. that no one should profit from his own misdeed and that law by nature aims at the common good) and that Vermeule points out should guide lawmaking and interpretation today. 

A Third Way Between Originalism and Progressivism? 

In significant measure, Vermeule defines his own classical legal tradition by contrasting it with progressive liberationism and originalism. Progressivism is the well-known practice by which judges posit a “living” Constitution that demands ever-increasing individual rights while undermining the power and authority of public institutions and our inherited constitutional order. Vermeule derides progressivism’s political goals, though not its methods, as destructive to the common good. He subjects originalism, a broad category of interpretive methods wielded in varying ways by radical libertarians, studiously a-moral positivists, and natural law thinkers who emphasize the limits of legitimate judicial and administrative power, to especially harsh treatment. 

There are real grounds for Vermeule’s hostility toward originalism; especially concerning is the seemingly unending series of putatively originalist arguments and court decisions that engage in specious logic, misinterpreting texts to produce desired results. Vermeule emphasizes Justice Neil Gorsuch’s “originalist” opinion in Bostock v. Clayton County. In that decision, Gorsuch argued that the Civil Rights Act’s prohibition against discrimination on the basis of sex includes a prohibition against discrimination on the basis of sexual orientation. Gorsuch’s logic? “If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” Such false reasoning obviously ignores the facts of human nature—including the existence of two complementary sexes, human sociability, and the person’s proper end in procreation within natural families—on which our social order is built. 

Vermeule takes Gorsuch’s egregious opinion as indicative of originalism generally. And it is true that, loosed from its traditional moorings in the natural law understanding of terms like sex, goods such as public morals, and institutions like the family, originalism has devolved into yet another highly flexible technique by which judges, activists, and academic lawyers insert their preferences into supposedly neutral readings of law and constitution. That said, it seems clear that a proper respect for the text and clear purposes of laws and constitutions rooted in our traditional natural law understanding of rights, duties, and constitutional structures would reliably reject decisions like Bostock and forge a coherent alternative to progressive “living constitutionalism.” Vermeule’s goal is not, however, to save originalism. Nor is it to reinvigorate the natural law tradition he shears of its constitutional elements, thereby reducing it to a “classical legal tradition;” it is to promote a specific understanding of the common good and how it must be pursued. 

Vermeule’s Classical Legal Tradition as Rule by Experts

At first blush, Vermeule’s “classical” tradition sounds much like that of natural law. Like the natural law, it “openly embraces the view that law is ordered to the common good, explains why it is law’s nature to be so ordered, and claims that the positive law based on the will of the civil lawmaker, while worthy of great respect in its sphere, is contained within a larger objective order of legal principles and can only be interpreted in accordance with those principles.” Vermeule thus emphasizes the power of judges (and others) to limit legislators’ power to impose their will on society by interpreting and applying their actions and even rewriting legislation in accordance with the common good. But, within the natural law tradition at least, there are significant limits to this power that Vermeule fails to point out. For example, as Helmholz notes, judges in the natural law tradition would work to interpret, not override or rewrite, statutes so as to maintain principles (such as that no man should be judge in his own cause) deeply embedded within that tradition.[3]

Vermeule’s classical tradition has no such limits because he rejects the normative status of law and Constitution. For Vermeule, the common good is all. And there is truth, here. For example, Vermeule restates natural law when he points out that “the highest felicity in the temporal sphere is itself the common life of the well-ordered community.” He also follows natural law in noting that a good order is one in which “it is possible to live honestly, to do no harm to others, and to render to each his due.” What separates Vermeule’s vision from the natural law tradition is his claim that the common good, interpreted by high officials and taken as a specific set of concrete political goals, is the sole determinant of each law’s meaning and legitimacy at all times and in all circumstances. 

Vermeule’s common good constitutionalism 

reads constitutional provisions to afford public authorities latitude to promote the flourishing of political communities, by promoting the classical triptych of peace, justice, and abundance, and their modern equivalents and corollaries. These include health, safety, and a right relationship to the natural environment. In a globalized world that relates to the natural and biological environment in a deeply disordered way, a just state is a state that has ample authority to protect the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events.

Oddly, Vermeule says almost nothing, here, about the need to promote virtue in the citizenry. Leaving aside the highest goods of both this life and the next made possible by a life of virtue, the natural law tradition, at least, recognizes that habits of right action are necessary to maintain harmony and good order. Why? Because law cannot be everywhere at all times, and so persons must act with reasonable justice on their own in most circumstances if society is to survive. Vermeule’s authorities, even though not aiming at such crucial ends, still are to exercise enormous authority. Such authority encompasses, for example, vaccine mandates imposed in the name of stamping out the COVID virus, regulations reconfiguring our lives to combat the supposed crisis of climate change, and the taking of property from one set of citizens to give it to another whom the authorities believe will better use it. 

Unconstitutional Lawmaking and Deference to Experts

Vermeule’s specific policy choices indicate something of the level of deference he demands Americans show credentialed “experts” in pursuing his rather specific notion of the common good. The point is not merely that many (in some cases most) Americans, including numerous experts, reject Vermeule’s fearful panic in the face of hypothetical dangers and his trust in the wisdom of administrators in deciding the best use of people’s property. As important is his open indication of people’s duty to defer to their “scientific” betters on such matters.

The basis for this deference? It cannot be simply experts’ personal authority. Vaccine mandates and the like are backed by law and the threat of punishment by the state. It must be that the orders issuing from various agencies are valid on account of their source—we are duty-bound to follow the orders of persons in certain positions of authority. As Thomas Aquinas wrote, law is “an ordinance of reason directed to the common good, promulgated by him who has care of the community.” But who has care of the community in any specific circumstance? In the United States, we historically have recognized our Constitution as the font of governmental authority; the Constitution is in a crucial sense a promulgated set of rules for making valid rules. The text of the Constitution is clear in formally vesting the power to make laws in the legislature, subject to a Presidential veto, which can in turn be overridden. There is no mention of administrative lawmaking. 

Vermeule’s classical tradition allows for a variety of possible lawmaking processes. “The legislature and executive, for example, may agree on a general statute giving some specification to a general legal principle, and in turn delegate to administrative agencies the authority to determine the general provisions of the statute. The agency may do so by a binding regulation, which may then require further interpretation.” Regulations, presidential decrees (Executive Orders, signing statements, and the like) and various judicial and quasi-judicial determinations—the stuff of the administrative state—do not meet our Constitution’s criteria to be law. Yet Vermeule insists on their validity and even necessity for the common good. 

How can a lawmaking procedure that is not in accordance with the law of the Constitution—rules laid down in a promulgated legal document specifically adopted for the purpose of laying out such rules for making rules—be legitimate? Vermeule begins with an argument from history, supplemented by vague procedural assurances: “The American small-c constitutional order has come to feature broad deference to legislatures on social and economic legislation and broad delegation from legislatures to the executive. In operation, moreover, lawmaking is effectively centered mainly on executive government, divided in complicated ways between the presidency and the administrative agencies.” 

And how did this transformation from legislative to administrative lawmaking come to pass? Certainly not through any constitutional amendment. But Vermeule sees no need for such niceties. As to the Constitution itself, Vermeule essentially dismisses it as a source of rules regarding legal validity. He asks how his argument for the administrative state is 

grounded in the constitutional text and in conventional legal sources? The sweeping generalities and famous ambiguities of our Constitution afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, solidarity, and subsidiarity. The highly general and abstract clauses have to be given some content or other, and it is—by their terms—impossible to do so without considering principles of political morality, which may of course include principles of role morality that allocate lawmaking authority among institutions. 

“Principles of role morality” (e.g. the separation of powers) may have some relevance, then, to proper governance, but not on account of their enshrinement in the Constitution, and presumably not of such importance as to override direct concern with the common good. 

What, then, are the principles properly governing allocation of powers? One searches the pages of Common Good Constitutionalism in vain for much, here, beyond the vaguest gesture toward procedural legality. “The executive and administrative state can and does act according to the rule of law, constituted in important part by principles of regularity and lawmaking.” Because bureaucratic agencies, with limited, deferential oversight from the courts, do not change too radically over time (a questionable assertion) and are the product of relatively disciplined rulemaking, according to Vermeule, they are proper rules, hence valid even if not in keeping with the allocation of powers or specific procedures laid out in the Constitution.

Rejection of the Written and Unwritten Constitutions

To give Vermeule his due, the American Constitution cannot define political morality for one and all, or even be, on its own, self-justifying. Monarchy, aristocracy, constitutional republicanism, or democracy all can serve the common good (or not). But America is a constitutional republic, and this historical fact raises reasonable expectations in terms of law and the limits of proper authority. Moreover, the American people, in part because of their traditions of self-governance, have a specific character to which only certain kinds of political and legal structure are fitting and legitimate. In different terms, the common good as understood in a constitutional republic must be pursued in different ways and by different laws than in a monarchy for the very reason that it is a constitutional republic, with a people habituated to that form of government, its expectations in terms of self-governance and limitations on power, and its more general political traditions. 

Traditions and circumstances in one community often are different from those in another, creating different expectations, norms, and even characters in the people. For most of American history, this fact lay behind a system in which the common law of one state or even one county was different from another. Natural law recognizes the importance of such distinctions, with Catholic thinkers in particular emphasizing that the state is a community of communities and that political, social, and economic matters ought to be dealt with by the smallest, lowest, or least centralized competent authority (the principle of subsidiarity). In the United States, these principles historically have been enshrined in the constitutional structures of federalism and in the understanding that the central government’s essential role is that of maintaining peace and harmony among the more natural and local communities in which people lead their daily lives. 

Vermeule rejects any such vision. To begin with, he rejects the structures of federalism as administratively inefficient and normatively unnecessary: “the values attributed to federalism are, in many cases, really values of subsidiarity and civil society; they are benefits of local or city government, of professional groups and trade associations, and of other civil society corporations, rather than of the curious, clunky, very large political mid-range entities, hovering uneasily between nations and cities, that are the states of the United States.” 

As to subsidiarity, Vermeule literally turns the principle on its head. The general understanding of subsidiarity is “negative” in the limited sense that it demands restraint on the part of central authorities so that more local communities may have the space, motivation, and authority necessary to develop fully as communities and address their concerns in the most appropriate manner. Vermeule references and extends Carl Schmitt’s “state of exception” to argue for a “positive” interpretation of subsidiarity empowering the centralized state. “Subsidiarity is fundamentally positive, in two senses: it supplies the highest public authority with positive power to act in certain extraordinary circumstances, and it enjoins that authority with a positive duty to act where those circumstances obtain.” 

Such “exceptional” circumstances for Vermeule obtain almost always. As he puts it, his approach “yields a strong canon of interpretation, to be applied unless contradicted by clear and specific language to the contrary: statutes and constitutional provisions should be interpreted to allow the highest public authority in the polity to exercise prudential judgment about whether an exceptional situation exists, such that subsidiary institutions have in some way failed and the positive powers and duties of subsidiarity have been triggered.”  He argues that such a canon has been essentially institutionalized in the form of a national administrative state with general powers over all Americans. As Vermeule asserts, our “federal government for all intents and purposes has acquired by prescription, over time, a de facto police power.” Here Vermeule revisits a series of Supreme Court decisions from the late 19th and early 20th centuries that effectively subordinated states’ powers to look to the health, safety, morals, and general welfare of their own people to federal authorities. He quotes William Novak: “Legal and political developments between 1877 and 1937 made that federal police power—an essential attribute of modern, centralized states—a practical if not a technical reality.” Vermeule translates these brute facts into a prescriptive right—that is, a right based on longstanding practice. 

Yet prescription alone, while it historically has been taken to justify possessory rights in land and such, cannot, certainly within the Anglo-American tradition, justify continued illegal conduct. Moreover, as Helmholz points out in an important article on natural law adjudication, judicial acquiescence to an unjust law does not prove that law’s congruence with natural law; it simply recognizes judges’ proper limits in enforcing natural law. Even laws imposing and regulating slavery were reluctantly upheld for centuries by judges within the natural law tradition, though they were interpreted narrowly. Judges, in the Western tradition at least, are not lawmakers, and so lack authority to overturn validly promulgated law. 

Ironically, American courts arguably had no right to allow delegation of legislative, executive, and judicial power to a new, fourth branch of government in the first place. Why not? Because the “laws” doing so were not, in fact, validly promulgated. They were not law because they violated the Constitution—a law higher than and controlling of lesser laws passed under its authority. Because the job of courts is to adjudicate disputes under law, they are not vested with authority to take quasi-law—rules handed down by governing powers that are not, in fact, laws—as the standard of judgment in cases that come before them.

Vermeule does not address such considerations because he is relatively unconcerned with constitutional structure. His fundamental assumption is that a powerful, centralized administrative state acting with little oversight or restrictions is necessary for pursuit of the common good. He asserts, in effect, that a singular public authority is and must be responsible for the common good in all its aspects, limited only by its own reading of the political morality behind the classical legal tradition—a stripped down, manufactured tradition not subject to the niceties of constitutional design. In terms of the American system, Vermeule argues that the increase in the scope of federal power that produced the administrative state and continues expanding its scope is intrinsically legitimate. Scope of power is simply not an issue once one has accepted the “permissible ends to which governmental power—state or federal—may be put.”

Vermeule’s justification for this increased scope seems more technocratic than legal, let alone moral. “Greater complexity and interdependence imply greater scope for the guiding hand of public authority.” Progressives’ living constitution is bad because it is used to promote individualism, but in its stead Vermeule offers a “developing” constitution that changes (or “lives”) because it provides for increasing “public authority.” Indeed, “today, in all developed nations, the administrative state assumes an ever-more central place in the making, implementation, and even interpretation of law. Any theory of law that does not take account of it in some way is, merely for that reason, grievously defective.” Why defective? Because “under contemporary conditions of extreme economic and social complexity, bureaucracy properly and intelligently deployed is an engine of unsurpassed power for promoting the common good.” As one of Vermeule’s subtitles puts it, “The Administrative State: The Living Voice of the Law.”

Sovereignty and the American Constitutional System

Perhaps the most important term for understanding Vermeule’s vision is “sovereignty.” For modern Europeans, the concept of sovereignty is crucial, indicating that one center of political authority from which all legitimate power descends. The concept is not unknown in American law, but historically has been applied most often to the people as the source of legitimate political authority. Times have changed. Vermeule quotes with approval from the Supreme Court opinion in United States v. Curtiss-Wright Export Corp (not surprisingly, a case from the New Deal era): “Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense.” Based on such reasoning, the Court invested the President with plenary power, unmentioned in the Constitution, to act in foreign affairs. 

Vermeule praises a reading of this decision as determining that “the new United States government was to have major powers outside the Constitution” despite the fact that no such determination was “intimated in the Constitution, in the records of the Convention, in the Federalist papers, or in contemporary debates.” He goes on to praise “the shockingly anti-originalist idea that ‘[t]he Union existed before the Constitution’” as an aspect of our unwritten constitutional order of “real, contextual, political institutions, arrangements, and ever-changing norms.” 

It is true that the American Constitution was the product of a pre-existing civil social order. From the Mayflower Compact to the various colonial and later state documents establishing civil government, Americans acted on the view that community is prior to government, society prior to the state. The Mayflower Compact established a civil body politic, binding the members to obey such laws as would be deemed best to serve the common good. State declarations and constitutions began with statements of the purposes of government, intended to be read as defining the limits and purposes of the rules and institutions laid out therein. But the powers given to the government by these communities were intrinsically limited by the terms of the promulgated grant of power, including its structural rules, any specified rights, and a background understanding of the common good. As to the federal Constitution, seen in its proper context, it was a grant of enumerated powers by sovereign states determined to maintain their own powers, as evidenced by specific provisions like the 9th and 10th Amendments.

Why, if the community was sovereign, would the Constitution grant only limited powers? Because the job of the government formed by the Constitution was itself limited. Vermeule expends much ink castigating as individualists anyone who expresses fear over abuses of power by the government when private actors like large corporations also may harm people. But the Mayflower Compact, for example, long predates liberalism; it is rooted in Calvinist covenantal theology and practice, both of which have strong precursors and parallels in Catholic political thought. Moreover, the constitutional tradition goes back much further than 1787, at least to the coronation oaths required of medieval kings and hard-fought limitations on power enshrined in documents like Magna Carta.

The issue is not whether the state is necessary to the common good. It is. The question is whether state functionaries, making up a single, political sovereign, have proper authority to go beyond and against the written Constitution approved by the people and/or the unwritten constitution of customs, mores, habits, and norms—meaning the traditions, habits, and pre-existing character of the people. Vermeule argues that they can: “broad deference to administrative determinations is itself a juridical principle, rooted in political morality, that can serve the common good.” 

As to those who oppose this massive administrative structure or deny its legitimacy, Vermeule paints them as apologists for nongovernmental oppression. “A claim that one’s ‘liberty’ should be protected by law is itself, necessarily, a claim to exercise coercive power over others.” While one might ask how such an assumption would affect the status of religious associations like the Catholic Church, as well as families and other voluntary groups, Vermeule’s focus is on economics: 

Corporations acting under public charters, and nominally “private” actors wielding power under common-law rules of property and contract created and enforced by judges—that is, by a class of government officials—can and frequently do abuse a kind of delegated public power. It is a mistake to focus myopically on direct abuses of power by officials themselves, as opposed to indirect abuses of power made possible by the law.

Vermeule is correct to point out that the state is not the only actor capable of harming and even oppressing people, and that societies choose orders of goods and visions of the good life that the state can (and should) support. All this makes the liberal notion of a neutral state chimeric. But Vermeule’s alternative vision of an overarching state whose administrators are to be entrusted with unbounded authority to directly organize society according to their vision of the common good is no less problematic. It goes against the understanding of state and society at the heart of the Western tradition of law and politics, long predating the rise of liberalism. 

The Medieval and Constitutional Alternative to “Common Good Constitutionalism”

Where Vermeule sees opposition to the administrative state as a harmful product of liberal individualism, the natural law tradition recognizes the necessity of meaningful local communities of affection, experience, and common interest. Vermeule is hostile toward any form of originalism because the constitutional order his administrative state replaced was and is deeply rooted in the separation and limitation of federal powers. Far from a series of vague generalities, the bulk of the Constitution is governmental architecture. It vests specific powers in specific institutions, reserving the rest for the states or the people. Vermeule (and integralists more generally) find this inexcusably “liberal.” But the American constitutional order is rooted in English and broader Christian traditions aimed at preserving, not childish autonomy, but self-government by a virtuous people within its constitutive communities. This common good of a virtuous life of fellowship is quite different from the unitary, indissoluble vision Vermeule puts forward. But the distinction is not in Vermeule’s favor.

Integralism has been criticized as a throwback to medieval Catholic views of law and governance. In reality, Vermeule has rejected central tenets of the Catholic understanding of the state as well as the Church’s role in fostering the multiplicity of authorities he derides. His references to Schmitt, and to those proponents of absolute sovereignty, Thomas Hobbes and Jean Bodin, in this volume and elsewhere indicate his attachment to a tradition less medieval than early modern. Early modern sovereignty, usually identified with royal absolutism, was crucial to the destruction of the medieval consensus and Constitution of the Realm that included a variety of institutions and authorities, each exercising limited jurisdiction within a system of balanced and checked power essential to the protection of peace, dignity, and good order. 

The Church essentially forged the Western legal tradition by demanding a separation of spheres, specifically of ecclesiastical from royal power and authority. The freedom of the Church guaranteed by England’s Magna Carta was part of a wider movement establishing separate, limited jurisdictions governing ecclesiastical, mercantile, royal, local urban, and other areas of life. Aquinas, Althusius, Burke, Tocqueville, Jouvenel, and, most relevant, here, the framers of the American Constitution all recognized the reliance of the common good on existence of a multiplicity of authorities and what Tocqueville termed “administrative decentralization.” Only through participation in local community affairs could people meaningfully learn and pursue the common good. The Catholic Church, in its understanding of the state as a community of communities, always has been a prime force espousing this natural law understanding of the need for local control to forge good character and the harmony that relies on it.

In rejecting this tradition, Vermeule rejects the hard lessons of modernization, that “sovereign” power marginalizes, starves of purpose, and eventually destroys more fundamental, social institutions. It robs the people of the natural communities in which they develop virtues, including the virtue of self-government. Thus, the sovereign’s supposedly exceptional tyrannical power has become the status quo. This power has been good to those with credentials like Vermeule’s. It has been terrible for the poor who are trapped in dependence on government handouts and the concomitant program of family destruction, as well as the many people from all classes and walks of life whose attention has for so long been drawn to their base desires that they have lost sight of higher order goods altogether.

Our Constitution is not a set of vague generalities to be interpreted by experts committed to justice, safety, and “green” policies. It is a frame of government that relies upon and instantiates our political tradition. And political traditions of all kinds are essential means and components of any good life. They provide common understandings and expectations that guide common action and forbearance. Not all countries have constitutional federalism. But a geographically large nation like the United States had and still has a need to divide power along geographical as well as cultural and functional lines to maintain the local self-government so important to fostering love of and service to the common good.

Bruce P. Frohnen is a Professor of Law at Ohio Northern University’s College of Law and a Senior Fellow at the Russell Kirk Center for Cultural Renewal.

[1] Conor Casey and Adrian Vermeule, “Myths of Common Good Constitutionalism,” 45 Harvard Journal of Law & Public Policy, 1 (2022).

[2] Adrian Vermeule, “Beyond Originalism,” The Atlantic, March 31, 2020,

[3] R.H. Helmholz, Bonham’s Case, Judicial Review, and the Law of Nature, 1 Journal of Legal Analysis, 1 (2009).

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