‘Almost all liberties are, in a sense, social’

Brooke Masters sat down with Adrian Vermeule to speak about common good constitutionalism for this Financial Times feature:

Adrian Vermeule wired up the explosive but didn’t stick around to watch it go off.

A Harvard law professor and conservative scholar, Vermeule had been working on a new legal philosophy for years when the Atlantic magazine asked him to write about it in March 2020. Known in academia for his provocative commentary, Vermeule let loose, declaring that the dominant conservative legal theory in the US had “outlived its utility”.

Originalism, the theory arguing that the US constitution should be interpreted in the light of its original intended meaning, had united social conservatives and free-market libertarians for 40 years. …

“I think originalism is coming unglued in a number of ways. There really is such a thing as natural law and natural reason about the governance of society. When our society gets sufficiently violent and decaying, people start to notice more that maybe there really is an intrinsically better way to do things.”

The “natural law” he is referring to is the belief that society should be governed by unchanging moral principles. The idea is rooted in classical law dating back to Greco-Roman times and was fleshed out by the medieval Catholic theologian Thomas Aquinas. While most legal scholars, both on the left and the right, prioritise individual rights and liberties, Vermeule argues that the community is paramount. “Almost all liberties are, in a sense, social. That is, all exercises of human powers affect the society around one and vice versa,” he says.

Vermeule’s “better way to do things” means that laws should be interpreted to conform with precepts “written in the hearts of all people”. When he talks about the US government ruling “well”, he means not just conservative concerns such as preserving traditional family structure and banning abortion, but also addressing inequality, the opioid epidemic and climate change.

“Positive law,” says Vermeule at one point, “is a human judgment that is supposed to promote the good of the community.”