Veronica Rodriguez-Blanco (University of Surrey – Centre for Law and Philosophy) has posted When Moral Principles Meet the Normative or Deliberative Stance of Judges: the Layers of Common Good Constitutionalism (Harvard Journal of Law and Poliicy (2024), Vol. 46, pp. 983-1008) on SSRN. Here is the abstract:
Vermeule's 'Common Good Constitutionalism' presents us with a new constitutional theory. It aims to both rely on classical natural law and advance a third way between progressive and originalist constitutionalism. The concepts of the common good and rational governance play a key role in the architectonics of the core arguments. However, it is unclear how the idea of a ‘flourishing’ life or ‘living well’ of a political community enters into judges’ practical reasoning. It is consequently also unclear how judges should interpret general moral principles in order to achieve the 'determination' of general principles in particular legal cases. Arguably, it seems that general moral principles are the ‘bridge’ between the ‘living well’ of a political community and the 'determination' in particular legal cases. In this paper, however, I will argue that when judges engage in deliberation they engage in ‘seeking’. Principles cannot robustly guide such seeking, especially when judges are faced with the question ‘What shall I do?’ in relation to particular legal cases.
I advance a conception of practical reason to shed light on the ‘expansive’ internal logic of legal texts and, therefore, indirectly criticize the view that general moral principles can guide the deliberation of judges when faced with constitutional decisions.