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1 1. There were of course second-order debates about how local law, ius proprium, and the ius civile or civic law related to the ius commune generally and to the natural law (ius naturale) and law of nations (ius gentium). By and large, the impulse of the jurists was to harmonize sources through interpretation wherever possible, rather than force the issue of which body of law had priority in a particular jurisdiction.

2 2. See generally Charles Donahue, Jr., Ius Commune, Canon Law, and Common Law in England, 66 TUL. L. REV. 1745 (1992) (“In the realm of basic principles, organizing ideas, techniques of argumentation, and habits of thought, the parallels are sufficiently great that one might want to call the common law simply a variant, admittedly an eccentric variant, of the multitude of legal systems that ultimately derive from the ius commune”); Richard Helmholz, Magna Carta and the Ius Commune, 66 U. CHI. L. REV. 297 (1999); RICHARD H. HELMHOLZ, NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE (2015) (hereafter “Helmholz, Natural Law”); Patrick J. Smith, Sir John Fortescue and the Ius Commune, https://iusetiustitium.com/sir-john-fortescue-and-the-ius-commune (“The influence of the ius commune on Bracton and Glanvill is well known and well documented. But it’s worth observing that this influence continued well after the foundation of the English legal tradition and it constitutes, therefore, an important part of the concrete order underpinning modern American law”). Overall, the following judgment seems entirely sound:[B]oth English and continental law formed part of the very same legal tradition. Their specific technologies or solutions might have varied to some degree or the other, but they shared a common genealogy that bound them together more strongly than that which drew them apart…. English common law and continental civil law formed part of a single European tradition from which they both drew as well as contributed.TAMAR HERZOG, EUROPEAN LAW AND THE MYTHS OF A SEPARATE ENGLISH LEGAL SYSTEM 22–23 (2018) (hereafter “Herzog, Myths”). See also TAMAR HERZOG, A SHORT HISTORY OF EUROPEAN LAW: THE LAST TWO AND A HALF MILLENNIA 167–82 (2018) (hereafter “Herzog, European Law”). As I discuss below, a corollary of all this is that constitutional lawyers can easily go wrong by assuming that references to the “common law” in the founding era exclude the ius commune. In fact the ius commune was itself part of the common law, broadly understood.

3 3. See DIG. 1.1 (Ulpian, Institutes 2) (A. Watson, trans., 2009). See also THOMAS AQUINAS, SUMMA THEOLOGICA, pt. I-II, q. 90 art. 4 (Fathers of the English Dominican Province, trans., Christian Classics reprt. 1981). For a modern account of legislation as reasoned governance, see Richard Ekins, Legislation as Reasoned Action, in GREGOIRE WEBER ET AL., LEGISLATED RIGHTS: SECURING HUMAN RIGHTS THROUGH LEGISLATION (2018).

4 4. For an early and classic explication of a somewhat similar point, see generally H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1984). For more recent sources, see note 241 below, and especially the excellent distillation in Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 LAW AND HISTORY REVIEW 321, 324 (2021):Originalists’ understanding of constitutional writtenness … is anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century. Founding-Era constitutionalists by and large were not positivists. They tended to think that much of law was “out there” – like the principles of mathematics or natural philosophy – awaiting discovery through reason and observation. No doubt plenty of law was made by human beings, and understanding how different kinds of law interacted and fit together posed vitally important questions. But it was impossible to understand law – and most of all fundamental law, of which constitutions, as the highest municipal authority, were a central part – without understanding its non-positivist dimensions. To a degree that cannot be ignored, those who made the United States Constitution presupposed this conception of law and its attendant understanding of constitutional content…. If we are interested in understanding the original Constitution – the one that eighteenth-century actors made, recognized, and debated – then we must see their work from the non-positivist perspective that once predominated and that informed their choices. Only then can we begin to make sense of the written constitution that they presented to the world. If we choose to interpret the Constitution from any other perspective, then we choose to interpret something other than the original Constitution. Whatever merits that other Constitution might boast, it will not be original – and thus will not be the Constitution that originalists claim to be recovering and the only one that can be said to possess original meaning.

5 5. See generally, e.g., HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (1958).

6 6. Cf. Lawrence Lessig, Fidelity in Translation, 71 TEXAS LAW REVIEW 1165 (1993).

7 7. Aquinas, note 3 above, at pt. I-II, q. 90 art. 4.

8 8. So, for example, I have no stake in, and need take no position on, the nth-decimal debates between and among positivists and Dworkin exegetes. Although I draw on Dworkin’s work for certain (limited) purposes, I spend no time rehashing his debates with H.L.A. Hart, Joseph Raz, or Hart’s and Raz’s epigones. This is partly because the purposes for which I draw on Dworkin do not require doing so; partly because I believe that Dworkin’s major critiques of Hart, THE CONCEPT OF LAW (1994), are essentially correct (and were later in effect conceded, not rebutted, by Hart); and, most importantly, because I prosecute Dworkin’s core points about the non-positivist practice and phenomenology of judging and legal practice inductively, through the accumulation of examples within my areas of expertise, rather than through abstract jurisprudential argument.

9 9. See RONALD DWORKIN, LAW’S EMPIRE 228–38 (1986).

10 10. In Chapter 2 I rely heavily on important treatments of the classical and natural law in America by Richard Helmholz, William Novak, Stuart Banner, and others cited there. Other essential treatments of the natural law, and its relationship to the classical law generally, include JOHANNES MESSNER, SOCIAL ETHICS: NATURAL LAW IN THE WESTERN WORLD (rev. ed. 1965); HEINRICH A. ROMMEN, THE NATURAL LAW: A STUDY IN LEGAL AND SOCIAL HISTORY AND PHILOSOPHY (Russell Hittinger, ed., Liberty Fund ed. 1998); ALEXANDER PASSERIN D’ENTREVES, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (Routledge ed. 2017); HADLEY ARKES, BEYOND THE CONSTITUTION (reissued Princeton University Press 2021); Brian McCall, THE ARCHITECTURE OF LAW: REBUILDING LAW IN THE CLASSICAL TRADITION (University of Notre Dame Press 2018); and especially the illuminating treatment in JAVIER HERVADA, CRITICAL INTRODUCTION TO NATURAL RIGHT (2d ed. 2020). See also the brief but magisterial overview by Wolfgang Waldstein, The Significance of Roman Law for the Development of European Law, https://iusetiustitium.com/the-significance-of-roman-law-for-the-development-of-european-law.

11 11. Because my main reliance on Dworkin is for his critiques of positivism and originalism, it is immaterial for my purposes whether, or in what sense, Dworkin is best understood as a natural lawyer, or whether his interpretivism really is a third way, different than both the classical law and positivism. (For an excellent overview of the issues, see PETAR POPOVIC, THE GOODNESS OF RIGHTS AND THE JURIDICAL DOMAIN OF THE GOOD, chapter 5 (2021).) As far as the critique of positivism goes, Dworkin and the classical law stand on common ground. Dworkin himself noted wryly that rejecting the fundamental claim of positivism, namely that law can (only) be identified without reference to political morality (except, on some inclusive views, insofar as the positive law itself incorporates moral standards), put him in alliance with the classical law: “[If] any theory which makes the content of law sometimes depend on the correct answer to some moral question is a natural law theory, then I am guilty of natural law.” Ronald Dworkin, “Natural” Law Revisited, 34 UNIVERSITY OF FLORIDA LAW REVIEW 165 (1982). In the same methodological space, compatible with the classical law even if not expressly written from within the classical tradition, see the illuminating account of fundamental and general constitutional principles in N.W. BARBER, THE PRINCIPLES OF CONSTITUTIONALISM (2018).

12 12. See generally Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057 (1975) (describing the role of principles in judging close cases, a role that is not reducible to mere political policy preferences).

13 13. See DWORKIN, LAW’S EMPIRE, note 9 above, at 4–11.

14 14. [If contemporary judges think that their concrete convictions were in conflict with their abstract ones, because they did not reach the correct conclusions about the effect of their own principles, then the judges have a choice to make. It is unhelpful to tell them to follow the framers’ legal intentions. They need to know which legal intentions – at how general a level of abstraction and why. So Bork and others who support the original understanding thesis must supply an independent normative theory – a particular political conception of constitutional democracy to answer that need. That normative theory must justify not only a general attitude of deference, but also what I shall call an interpretive schema: a particular account of how different levels of the framers’ convictions and expectations contribute to concrete judicial decisions.Ronald Dworkin, Bork’s Jurisprudence, 57 U. CHI. L. REV. 657, 664 (1990) (reviewing ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990)).

15 15. Ronald Dworkin, The Moral Reading of the Constitution, N.Y. REV. BOOKS, Mar. 21, 1996, at 46, https://www.nybooks.com/articles/1996/03/21/the-moral-reading-of-the-constitution. I will take my argument as having been carried, in substance, to the extent that originalists try to take such moral readings on board by having recourse to what some call “inclusive positivism,” and what Dworkin called “Pickwickian Positivism.” See RONALD DWORKIN, JUSTICE IN ROBES 188 (2006). “Inclusive positivism … is only an attempt to keep the name ‘positivism’ for a conception of law and legal practice that is entirely alien to positivism.” Ibid. The same is true of versions of “inclusive originalism” that attempt to preserve the name while surrendering all the content to the classical legal tradition. I discuss this issue of convergence between nominal originalism on the one hand and the classical legal tradition on the other in Chapter 3.

16 16. See Dworkin, Law’s Empire, note 9 above, at 239.

17 17. Another way of putting this point is that I have no need for Dworkin’s distinction between principles and “policies,” which many have criticized as arbitrary and unmotivated. As Dworkin conceived it, the distinction seems to assume a typical liberal opposition between “individual rights” and “collective interests,” imagining the latter as aggregated social utility that may or may not “override” individual rights. See Popovic, note 11 above, at 164–67. On the conception I urge here, by contrast, the common good is itself a constitutional principle, the highest constitutional principle, just as the common good is itself the highest interest of individuals. As we will see, the common good (or one of its variants, such as salus populi) was frequently cited by classical lawyers in America as a fundamental constitutional principle authorizing broad action by public authorities on behalf of the public welfare.

18 18. See, e.g., JOHN PAUL II, ENCYCLICAL LETTER CENTESIMUS ANNUS: ON THE HUNDREDTH ANNIVERSARY OF RERUM NOVARUM, art. 10, 15 (1991); PONTIFICAL COUNCIL FOR JUSTICE AND PEACE, COMPENDIUM OF THE SOCIAL DOCTRINE OF THE CATHOLIC CHURCH ¶¶ 192–96, 185–88 (2004) (hereafter “Compendium”). Within the project, there are of course many further problems to be worked out about the relationships among these principles. As merely one example, see the discussion of the relationship between solidarity and subsidiarity, and their connections to the scope of political authority (nation or empire?), in Richard Ekins, The State and Its People, AM. J. JURIS. (2021) (reviewing Barber, Principles of Constitutionalism, note 11 above).

19 19. See generally LON L. FULLER, THE MORALITY OF LAW (rev. ed. 1969). In what follows, an awkward issue of exposition – although not a problem of theory – is that positivism need not involve a written text, merely a conventionally recognized rule of law (which might, for example, be an unwritten custom). For concreteness, I will focus on written lex as the paradigm of a positive enactment of the civil law, but all of my points can apply with equal force to a customary rule. This also allows me to engage the Supreme Court’s recent pronouncement, a very confident pronouncement indeed, that “only the written word is the law.” See note 32 below.

20 20. See Aquinas, note 3 above, at pt. II-II, q. 50 art. 1. For the connections between prudence and natural law, see generally FERENC HORCHER, PRUDENTIA IURIS: TOWARDS A PRAGMATIC THEORY OF NATURAL LAW (2000).

21 21. For an excellent overview of that many-faceted debate, see generally Aileen Kavanaugh, Recasting the Political Constitution: From Rivals to Relationships, 30 KING’S L. J. 43 (2019).

22 22. See the clearheaded comments by Professor Conor Casey of the University of Liverpool in a video lecture for the Oxford/ Blackfriars Common Good Series, https://youtu.be/MpZCKrpE5gw.

23 23. See Adrian Vermeule, Liberalism and the Invisible Hand, 3 AM. AFFAIRS 149 (2019); Adrian Vermeule, Echoes of the Ius Commune, 66 AM. J. JURIS. (2021) (reviewing Barber, Principles of Constitutionalism, note 11 above).

24 24. As I explain at length in ADRIAN VERMEULE, LAW’S ABNEGATION: FROM LAW’S EMPIRE TO THE ADMINISTRATIVE STATE (2016).

25 25. See generally CASS R. SUNSTEIN & ADRIAN VERMEULE, LAW AND LEVIATHAN: REDEEMING THE ADMINISTRATIVE STATE (2020).

26 26. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).

27 27. Adrian Vermeule, Rationally Arbitrary Decisions in Administrative Law, 44 J. LEGAL STUD. S475 (2015).

28 28. See generally John Dewey, Liberty and Social Control, in 11 JOHN DEWEY: THE LATER WORKS, 1925–1953 360 (Jo Ann Boydston, ed., 1987); Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470 (1923).

29 29. See BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 108–10 (1985).

30 30. For an argument reaching the same conclusion from different premises, see Jordan L. Perkins, On the Necessity of a “Common Good”: Or, Against Originalism, https://www.jordanlperkins.com/post/on-the-necessity-of-a-common-good-or-against-originalism.

31 31. Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240–41 (1984).

32 32. See Bostock v. Clayton Cty., Ga., 140 S. Ct. 1731, – (2020) (“Only the written word is the law … This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment”). To be sure, there are endless, variant definitions of originalism, the sign of an unstable research program. In an older version, the watchword was “original intent”; in newer versions, “original law” or “original methods” originalism; and so on. The differences among these sub-conceptions do not make any difference to the points I will make. Hence I will speak (like the Court in Bostock) of original public meaning originalism, which emphasizes the supposed “fixation” of original meaning at the time of enactment. As discussed in Chapter 3, there is much less to fixation than meets the eye.

33 33. Ibid.

34 34. Rafael de Arízaga, Notes on the Ius Commune Part I: The Hydra of Legal Positivism, IUS & IUSTITIUM (Feb. 23, 2021), https://iusetiustitium.com/notes-on-the-ius-commune-part-i-the-hydra-of-legal-positivism. At the level of scholarly justifications, the leading theoretical defenses of originalism today are explicitly positivist. See, e.g.,William Baude, Is Originalism Our Law?, 115 COLUM. L. REV. 2349, 2353 (2015); Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 HARV. J. LAW & PUB. POLY. 817 (2015). However, there have always also been normative, non-positivist justifications for originalism, sounding in principles of political morality. Perhaps the most famous of these is an early argument of Antonin Scalia’s that originalism appropriately constrains judicial discretion. See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CINN. L. REV. 849 (1989). As discussed in note 15 above, in Chapter 3, and elsewhere, such justifications either fail on their own terms or, where successful, merely replicate the constraining and structuring devices of the classical law, which are themselves justified by reference to the common good. Those devices by no means allow any judge or other official to consult the full range of first-order moral considerations whenever the judge wants to. In other words, the reigning positivist version of originalism is the version that gives it distinctive content, and hence it is the version on which I will focus, although other versions are addressed at various points throughout. See, in particular, the discussion of hybrid versions of originalism in Chapter 3.

35 35. Here and elsewhere, some of the relevant text is incorporated into a forthcoming work co-authored with Professor Conor Casey in the HARVARD JOURNAL OF LAW & PUBLIC POLICY, tentatively entitled “Myths of Common Good Constitutionalism.”

36 36. See generally Stephen E. Sachs, Finding Law, 107 CALIF. L REV. 527 (2019).

37 37. See JANNEKE GERARDS, GENERAL PRINCIPLES OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS 160–97 (2019).

38 38. R.H. Helmholz, What Explains the Disappearance of Natural Law? SYNDICATE (Mar. 17, 2021) (responding as part of a symposium about ANDREW FORSYTH, COMMON LAW AND NATURAL LAW IN AMERICA: FROM THE PURITANS TO THE LEGAL REALISTS (2019)), https://syndicate.network/symposia/theology/common-law-and-natural-law-in-america.

39 39. Ibid.

40 40. 198 U.S. 45, 65–74 (1905) (Harlan, J., dissenting).

41 41. 22 N.E. 188 (N.Y. 1889).

42 42. 299 U.S. 304 (1936).

43 43. 140 S.Ct. 1731 (2020).

44 44. 42 U.S.C. § 2000e-2.

45 45. 140 S.Ct. 2183 (2020).

46 46. 576 U.S. 644 (2015).

47 47. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926).

48 48. Annex to the Letter Dated 2 December 2020 from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General: Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family, U.N. Doc. A/75/626 (Dec. 2, 2020), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N20/344/30/PDF/N2034430.pdf?OpenElement.

49 49. See Dworkin, Law’s Empire, note 9 above.

50 50. Examples are too numerous to mention, but compare the titles of these two: Garrett Epps, Common-Good Constitutionalism Is an Idea as Dangerous as They Come, THE ATLANTIC (Apr. 3, 2020), https://www.theatlantic.com/ideas/archive/2020/04/common-good-constitutionalism-dangerous-idea/609385; Randy E. Barnett, Common-Good Constitutionalism Reveals the Dangers of Any Non-Originalist Approach to the Constitution, THE ATLANTIC (Apr. 3, 2020), https://www.theatlantic.com/ideas/archive/2020/04/dangers-any-non-originalist-approach-constitution/609382.

51 51. A recent spate of excellent work includes Conor Casey, “Common Good Constitutionalism” and the New Debate Over Constitutional Interpretation in the United States, (2021) 4 PUBLIC LAW 765–87; Timon Cline, Common Good Constitutionalism and Vaccine Mandates, APPALACHIAN LAW JOURNAL (forthcoming 2021); Stéphane Sérafin, Kerry Sun, & Xavier Foccroulle Menard, The Common Good and Legal Interpretation: A Response to Leonid Sirota and Mark Mancini, 30 CONST. F. 39 (2021); RACHAEL WALSH, PROPERTY RIGHTS AND SOCIAL JUSTICE: PROGRESSIVE PROPERTY IN ACTION (2021). See also the entries in the symposium on common-good constitutionalism hosted by Ius & Iustitium in September 2021 (https://iusetiustitium.com/symposium-securing-the-common-good) and the excellent video lecture series hosted by the Common Good Project, a joint initiative of the Oxford Law Faculty and Blackfriars Hall, YOUTUBE, https://youtube.com/channel/UCq25IwskSdpq7FNZWSThrVA.

52 52. CHARLES L. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969).