Harvard Law prof proposes 'common good constitutionalism' that takes an 'ax' to 'free-speech ideology'

One Harvard Law professor is using the pandemic to advocate for a new version of  “constitutionalism” that takes an “ax” to the concept of “free-speech ideology” and “property rights.”

Adrian Vermeule, professor of constitutional law at Harvard Law School, recently published a piece in which he attacks traditional interpretations of the U.S. Constitution and advocates for something called “common-good constitutionalism” to be applied during the current coronavirus crisis. 

According to Vermeule, the approach to matters of the constitutionality of government actions during the coronavirus crisis “should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate”. 

“In this sense, common-good constitutionalism promises to expand and fulfill, in new circumstances and with a new emphasis, the Constitution’s commitments to promoting the general welfare and human dignity,” writes the professor.

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Vermeule argues that with this new approach, “constitutionalism will become more direct, more openly moral, less tied to tendentious law-office history and endless litigation of dubious claims about events centuries in the past.” He also criticizes the conservative adaptation of the Constitution by arguing that  “originalism has done useful work, and can now give way to a new confidence in authoritative rule for the common good.”

Vermeule believes that “common-good constitutionalism” is not meant to maximize individual autonomy or to minimize the abuse of power by the government. He argues that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself.”

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The author wholeheartedly argues that heavy-handed governance is crucial in times of crisis, such as pandemics for the purpose of “protecting the weak from pandemics and scourges of many kinds—biological, social, and economic.” He does not shy away from vouching for overriding the “private rights” of individuals by calling them “selfish claims.” 

Vermeule criticizes the “libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech” and he believes that such notions of free speech should  “fall under the ax.” He goes as far as denying property rights, stating that “insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.”

Missouri Republican state Rep. Tony Lovasco told Campus Reform that Vermeule’s notion of “common-good constitutionalism” is “not only historically inaccurate but also inherently abhorrent.” 

“While I do concede that [the] nation’s founders were not as libertarian as I might prefer, there can be no doubt that their primary goal when writing the Constitution was to limit the size and scope of the government they set to create,” said Lovasco.

“While their intentions may have been on some level to use this government for ‘the common good,’ it was not designed nor intended to be the sole provider of such good. Rather than provide broad, nearly limitless powers, the founders chose to give the Federal government-specific, enumerated ones,” he continued.

Lovasco also objects to the idea that the state has a role in “enforcing duties of community and solidarity in the use and distribution of resources”. According to Lovasco “the purpose of government is to protect individual liberty. To suggest that the state should use force on the individual in order to enact what it decides is “the common good” is to endorse the tyranny of the majority.