The Dangers of: “Common Good Constitutionalism”

The Dangers of: “Common Good Constitutionalism” is the first in a series I will be doing where we dive deeper into specific ideologies and the dangers that lie within.

For this piece we are going to look into “Common Good Constitutionalism,” we’ll call it CGC. It’s a newer way of interpreting the the Constitution. This is a way of not taking the text of the constitution literally but reading more compassion into the words of the constitution. This uses the the constitution and the federal government to push for the “common good.”

Penn Jillette, of Penn & Teller, summed it up nicely by saying “My whole take on libertarianism is that I don’t know what’s best for other people.” This generally sums up the Libertarian view, we want the government out of everyone’s lives, because the only person who knows what is best for you is you.

On the conservative right the leading interpretation of the law has been originalism. In this view the text of the constitution is taken at face value for what it says. As Supreme Court Justice, Neil Gorsuch, has said in an op-ed in Time Magazine “Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The ‘Judicial Power’ of Article III of the Constitution isn’t a promise of all good things.”

Adrian Vermeule, professor constitutional law at Harvard Law School, wrote a piece in The Atlantic titled “Beyond Originalism” in which be goes more in depth into the idea of CGC. He points out the general vagueness in the wording of the constitution. He particularly points out a line in Article 1 Section 8 of the Constitution (Power of Congress) that says “The Congress shall have Power to… provide for common defense and general welfare of the United States.” He says that this allows the implementation of the common good.

Adrian is correct in the fact that some of the constitution is vague, which is why we have to look at the Federalist Papers and the founders future clarity provided on the constitution. For instance, when looking at the line of the constitution quoted above, Thomas Jefferson said “Congress had not unlimited power to provide for the general welfare, but were restricted to those specifically enumerated.”

One of the main issues with CGC is a lack of consistency that we would have in legal precedent and political policy. Who determines what the “common good” is? Every single person has his/her own idea of what the common good is. Allowing legislators and judges to read in their idea of “common good” would have significant side effects. Lets look at an example of two judges, Judge A and Judge B, Judge A believes that abortion is against the common good while Judge B thinks that abortion is part of the common good. A woman who gets an abortion would either get thrown in jail or let free depending on the judge that she is sat in front of.

While a growing number of people feel that CGC is a better way to read the constitution and create a moral society, the governments job is not to instill mores into society. Originalism is the purest way to read the constitution and allows us to have the most consistent legal standards and the freest people in the world.

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