Adrian Vermeule delivered an important speech at the National Press Club last month to mark the launch of his book, Common Good Constitutionalism. Vermeule is carries forward many of Hadley Arkes’s crucial contributions to American constitutional democracy articulated in books like Beyond the Constitution, The Philosopher in the City, and Natural Rights and the Right to Choose. Arkes and Vermeule, in their own ways, both strive to show why it is that the rule of law is not merely the rule of persons.

Vermeule’s remarks for the launch of his book are worth reading in their entirety, but I’m excerpting portions that I found to be particularly helpful here:

Common good constitutionalism aims to recover and revive the profound connections between the classical American legal tradition on the one hand, and on the other the classical Roman and Western legal tradition, the ius commune, of which the Anglo-American common law is best understood as a local variant. The book thus has both a general part and a particular part—a duality that is itself typical of the classical legal framework. It speaks both to general principles of common good constitutionalism and to the specific embodiment or determination of those principles in the American constitutional order. These two are detachable, in the sense that one can subscribe to the methodological framework without subscribing to my particular interpretations of American law. …

While our legal theory has lost sight of its own origins, it is no contradiction to say that in practice our law retains many classical elements. That’s indeed how amnesia works. …

Where at all possible, classical law reads the law of a particular jurisdiction (the ius civile or “law of the city”) in light of the ius gentium (the law of nations or peoples) and the ius naturale (natural law), which the civil positive law is taken to make concrete or “determine” within reasonable boundaries. …

[T]he common good is, for the temporal purposes of the constitutional lawyer, the flourishing and happiness of the political community. The common good is unitary and indivisible, capable of being shared without being diminished. A humble analogy might be the victory of a sports team, which is the victory of the team as such, over and above the victory of the individual players.

The common good is also the highest good of the individuals comprising the political community. No man is an island. As Aquinas memorably put it, “The individual good is impossible without the common good of the family, state, or kingdom. Hence Valerius Maximus says of the ancient Romans that ‘they would rather be poor in a rich empire than rich in a poor empire.’” …

[T]he classical view is not at all that the common good is the good of the collective or aggregate, as opposed to that of individuals. Quite the contrary. The common good of happiness in a flourishing political community is ultimately for the sake of individuals, because a flourishing community is both the precondition for the goods of individual and family life, and the highest temporal good for individuals as such.

To give the common good more specific content, I look to the precepts of legal justice in the classical law: to live honorably, to harm no one, and to give each one what is due to him in justice. These underpin the classical account of the central goods at which constitutionalism should aim. These goods include, in a famous trinity, pax, iustitia, et copia— peace, justice, and abundance — which I extrapolate to modern conditions to include various forms of health, safety, and economic security. I also elicit from the tradition the key principles of solidarity and subsidiarity. …

Contrary to what someone may have told you, in the classical tradition, “rights” very much exist, but they are not defined in the essentially individualist, autonomy-based, and libertarian fashion familiar today. Instead rights are objective corollaries of justice, which is the constant aim of giving every man his due. In the classical tradition, both natural and positive rights are, in somewhat different ways, themselves included within law’s larger ordering to the common good. …

The consequence of the amnesia I mentioned is that our public law now oscillates restlessly and unhappily between two dominant approaches, progressivism and originalism. In my view, despite their superficial enmity, these are both aspects or variants that flow from the same basic premises about law and political morality. Their apparent conflict is really a kind of duopoly. They are constitutional law’s equivalent of the two party system.

Since its modern inception in the 1960s and 1970s, originalism has been unable to free itself from—or usually even to acknowledge—the implicit normative assumptions and judgments needed to attribute rationality to legal texts, to determine the level of generality at which the meaning of texts should be read, to resolve ambiguities, or otherwise to make sense of their terms. Thus originalism is, in that sense, an illusion. Even putatively originalist decisions of the Supreme Court turn out to be richly interpretive and normative. They are shot through with implicit and explicit justification in light of claims about political morality. Indeed, I argue that no law can operate without some implicit or explicit vision of the good to which law is ordered. The only questions are whether we are transparent about that, and which account of the good our law will promote, pursue and endorse. …

I think the impetus behind the revival of classical law runs much deeper than the shortcomings of originalism. It really stems from the parlous state, not of law and legal theory, but of the larger polity. I suggest a kind of paradox: as a polity becomes increasingly disordered, increasingly remote from a flourishing commonwealth promoting peace, justice and abundance, the claims of the common good and indeed the natural law actually become more visible, more insistent, and less debatable. It is easy to be fashionably skeptical about the claims of the common good when the polity is more or less basically functional; the intellectuals can focus on edge cases and recondite exceptions, because the main tasks of civil governance are being taken care of in the central cases. But when the polity is in undeniable decay, when disparities of wealth and inequalities of educational opportunity are pervasive, when fentanyl has become the leading cause of death for adults between 18 and 45, when a million Americans die in an epidemic, when judges are harassed in their homes over cases they are currently deciding — in circumstances like these, it becomes ever more plausible that a flourishing polity is itself the highest good for individuals, and that there exist background principles of reasoned order that should themselves be part and parcel of our law. Just as absence makes the heart grow fonder, so too we perceive more keenly what our polity desperately lacks when we lack it. It is no accident, I think, that the last major revival of classical legal theory was just after the Second World War, when the idea that positive law does not exhaust the binding sources of law was vindicated at Nuremberg.