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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
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Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
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Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
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Nate Persily npersily at gmail.com
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Alice Ristroph alice.ristroph at shu.edu
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David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the distinctive claims in Adrian Vermeule's recent constitutional work is his argument that government authority should endeavor to promote, and enforce, the "common good."
By contrast, the political theory of liberal republicanism argues that politicians and the public should cooperate and compete with each other to promote the "public good."
Does this mean that Adrian is arguing for a familiar kind of liberal republicanism well-known to the founders and promoted by them?
No, these two concepts are not the same.
Adrian's "common good" is a concept derived from Catholic political thought. It is based on a philosophical and religious theory of what human beings are like and their correct relationship to God and the Church. It involves particular substantive commitments about what is good for human beings as human beings living in communities under the divine order.
These substantive commitments, as articulated by the Church, can be quite specific. One might argue, for example, that many centuries of religious tradition and philosophical argument have shown us why certain forms of hierarchy and inequality, and certain restrictions on personal liberty (including especially sexuality) are necessary to achieve the common good.
In short, the "common good" in Adrian's model is a comprehensive conception of what is really and truly good from the standpoint of human reason and divine law, as explicated through the Church's teachings.
Under this approach, we should evaluate the work of political officials by how well their work corresponds to this substantive conception. You could imagine that one role of judges in this system is to ensure that political officials conform to these substantive views.
The liberal republican tradition of the founders, by contrast, argues that the point of the state is to promote the public good. That is why it is a republican tradition. But the nature of the public good is not preordained. It is something to be worked out in and through politics itself, and the contest over what is in the public good must be circumscribed by guarantees of liberty and equality. That is why it is a liberal (and democratic) tradition.
This tradition has a realistic view of human beings, but not one that is necessarily materialistic or anti-religious. It argues that although people have the capacity to act for the good of other people, they will often pursue their own selfish interests, or the interests of their own social, political, religious, or racial group.
The political system should be designed to encourage politicians and ordinary citizens either to possess or to act in conformity with public-spirited virtues. That is, it is designed to get people to be devoted to the good of all rather than their own private, selfish good or the good of their group.
But, as Madison famously explains in Federalist 10, enlightened people will not always be at the helm. And the members of the public will often look out for themselves, and not think about the good of everyone in their community.
For that reason, it is necessary to design political constitutions and sub-constitutional rules, norms, and conventions, to create incentives for people to pursue the public good--because they actively desire what is for the good of all, because they are brought to support the public good as a result of their clashes with their political adversaries, or because of the need to persuade other people to join with them.
The public good is defined here *not* as a comprehensive substantive ethical doctrine. Rather, it is the purpose of working for the good of everyone in the political community, rather than for the parochial interests of some persons or groups of persons.
The modern republican tradition from Machiavelli through Montesquieu through the founders believed that civic virtue was necessary to make a republic work. Civic virtue is the tendency and/or the purpose to work for everyone's good and for the good of the political community as a whole. But civic virtue turns out to be very hard to come by for many people, especially when power, or money, or both, are at stake. Ironically, a similar problem may also occur when zealous reformers, who claim to act only for the public good, are seized by an inflexible ideology of an imagined perfect society. The inflexibility of their dogma overcomes all, and they may be tempted to let their ends justify any means.
Because people will disagree about what serves the public good, and because they will tend to think that what benefits them also benefits the public good, a wise constitution sets up checks and balances, and limitations on the exercise of political power. It secures rights and liberties because they are valuable to life in ordinary times, and necessary to life in extraordinary times when the political system is under the greatest strain.
If all people were imbued with public-spirited virtue, these limitations on government might be less necessary, but the hard-won lessons of history teach us that they are altogether necessary.
Hence these twin ideas of liberal republicanism: First, that government power should be harnessed for the public good-- a good which is to be debated and fought for through politics itself. Second, that we need constitutional structures, checks and balances, and sub-constitutional rules and norms, to ensure that this fight for and over the public good does not degenerate into the simple quest for power and domination.
These twin ideas are liberal because they recognize the inevitability of multiple and often incommensurate values and ways of living--and the endless disputes about value and politics that characterize the human condition. They are republican because they recognize that political institutions must be designed to create a framework for people to struggle in ways that direct them toward something larger than their own interests, and toward the achievement of what is good for society as a whole.
These two ideas are orthogonal to the long-running dispute between living constitutionalists and originalists. Both living constitutionalists and originalists subscribe to them. Both of them can agree--and both of them do agree--that these are the basic political and structural commitments of our Constitution. That is why the contemporary fight between originalists and living constitutionalists is a fight waged within a larger set of common political assumptions and ideas. Both Antonin Scalia and William Brennan, for example, would subscribe to these basic assumptions about our constitutional order.
Adrian's common good constitutionalism, by contrast, does not commit itself to these liberal republican principles. He already knows what the common good is, because the Church has revealed it to us. Therefore he does not accept the idea of a public good to be worked out in politics itself. And he does not accept the checks and balances that prevent selfish actors and zealous crusaders who act in God's name from overreaching, and confusing justice with domination. That is because he has faith that political power exercised by people who seek the common good as defined by centuries of Church teaching will actually result in the common good.
The liberal republican tradition, which is the tradition of the American Constitution, begs to differ. It argues that the lesson of history is quite different: Giving people unchecked power to pursue their vision of the good, no matter how pious, without the structures and commitments of a liberal republican constitution, produces something that is all too common in the long history of political domination, but is hardly good.