A Common Good Constitutionalist Feminism?

In “A Constitution for the Common Good?” James Stoner argues that common good constitutionalism “deserves serious attention” as “a way of thinking about justice and the Constitution,” and “more generally about our society and the rule of law.” Stoner’s conclusion is not motivated by the prospect of any immediate concrete payoff, for common good constitutionalism is as yet a fledgling movement with no discernible program and a leading manifesto, Adrian Vermeule’s 2022 book Common Good Constitutionalism, that by its own admission offers only a rough sketch of its arguments. Rather, by highlighting the importance of the classical legal tradition, including natural law, to America’s constitutional system common good constitutionalism may fuel “the resurgence of interest in a morally thick jurisprudence” urged by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in their groundbreaking article “A Better Originalism,” published last year in The American Mind. The eventual result, suggests Stoner, could be a “welcome corrective” to what he sees as the “errors and excesses” of the two dominant modes of constitutional interpretation, living constitutionalism, and originalism, which, respectively, abjure and neglect to make effective use of the classical legal tradition.     

The prospect of a constitutional framework that draws more fully on America’s rich heritage of natural law as well as other aspects of the classical legal tradition is an interesting and, for many, an exciting one. Not surprisingly, common good constitutionalism has already generated a substantial literature. To date, though, the ramifications of common good constitutionalism for feminism have received little attention.

In this response essay, I explore what common good constitutionalism might mean for core feminist objectives. In brief, I offer two insights. First, I suggest that there could be significant gains for women from a system in which government regulation must promote “the flourishing of a well-ordered political community” (in Vermeule’s formulation of the meaning of the common good, quoted with approval by Stoner), as distinct from catering to powerful political and economic interests. Second, I explain why even though common good constitutionalism is cast as a project of recovery and restoration, it is wrong to assume that its embrace would set women back. I address each point in turn.

Women and the Regulatory State

At first glance, the explosive growth in government regulation of economic life might seem to benefit women. After all, women have traditionally been regarded—and not infrequently have regarded themselves—as vulnerable and thus in need of protection from the rough and tumble of free markets. Yet upon more careful inspection, it is clear that much regulation is in serious tension with women’s interests. One prominent example is occupational licensing requirements, which mandate government permission in order to engage in professional pursuits such as cosmetology and interior design. As Network of enlightened Women President and Founder Karin Lips points out, the burdens of such strictures often fall heavily on women. It is not just that many states require licenses to engage in female-dominated professions. There is also the problem that military and other “trailing” spouses, who are disproportionately female, struggle to maintain careers when they move across state lines because occupational licenses are state specific.

Common good constitutionalism, in short, should not necessitate the reinstatement of practices that contravene modern values.

Under the prevailing constitutional doctrine, occupational licensing and other economic regulations are generally subject only to “rational basis” scrutiny by courts, even in the face of strong evidence that the regulation in question is designed not to promote the public interest but to stifle competition and entrench incumbents. If proponents of common good constitutionalism are serious in their assertions that to be legitimate, government regulation must promote the overall welfare, much of the rent-seeking and “redistribution up” we have become inured to will become a thing of the past, or at least be substantially reduced. That would mark a welcome and substantial departure from the current regime.

To be sure, the institutional design problems of ensuring that government regulation is public-spirited are formidable. Without knowing far more about how common good constitutionalists plan to achieve their stated objective, it is impossible to assess their chances of success on this front. As Stoner notes, Adrian Vermeule exhibits tremendous confidence in the administrative state and “little patience for federalism and the separation of powers” or the “structural principles of American constitutionalism.” This raises perplexing questions regarding whether common good constitutionalism is up to the task of preventing or neutralizing the often toxic byproducts of concentrations of power. Nevertheless, the willingness of common good constitutionalism to at least acknowledge the serious problem of government regulation that feathers the nests of the few at the expense of the many is a point in its favor.

Revival or Retrogression?

No matter how abundant in wisdom the classical legal tradition revered by common good constitutionalists may be, the prospect of its revival is bound to raise hackles. In her contribution to a Balkinization symposium on Common Good Constitutionalism, Linda McClain expresses concern that the use of the classical legal tradition to “flesh out the common good” could turn out to be a “disruptive, even subversive project.”  The “stew” of the legal tradition Vermeule seeks to revive, notes McClain, comprises “divine law, natural law, and civil law,” which, as she points out, “have all starred in justifying status hierarchy in marriage as well as the exclusion of women” from “full participation in civic, political, and economic life.”

Adherents of common good constitutionalism have a ready answer to objections of the sort McClain lodges. The specific legal doctrines and institutions that oppressed women throughout human history, or so the rejoinder goes, are distinct from the classical legal tradition itself and we must not conflate them. As Vermeule puts it, the project of common good constitutionalism is “definitely not to take particular laws and customs from a point in time and apply them uncritically today,” for when we examine historical rules and customs it is evident that some “were justifiable and others unjust, according to the criteria of the classical approach itself.” The classical legal tradition, in Vermeule’s account, is sufficiently malleable to allow for what he describes as his “methodological project,” which is to “translate and adapt the principles of the classical legal ontology” to the world of the twenty-first century.    

Common good constitutionalism, in short, should not necessitate the reinstatement of practices that contravene modern values. That is reassuring for those who see promise in common good constitutionalism.

At the same time, of course, the fact that common good constitutionalism can be so readily adjusted to changed circumstances compounds the mystery of whether it has much in the way of actual content.