Stricter Scrutiny for Common Good Constitutionalism

Jim Stoner’s lead forum essay, focusing on Adrian Vermeule’s common good constitutionalism, invites us to consider whether we are experiencing something “new under the sun.” Is common good constitutionalism really a boogeyman deserving of the hundreds of think pieces launched after the March 2020 publication of his “Beyond Originalism”? Vermeule himself would not claim that he is proposing something new. To him, common good constitutionalism, with its reorientation of American law toward the classical legal tradition, represents a long abandoned third alternative to a false, contemporary dichotomy. That dichotomy consists of a positivist, historicist flavor of originalism en vogue among legal conservatives at present and progressive constitutionalism enthralled by a liberationist pursuit of autonomy popular among leftists. Read Full Article »