Between Authority and Usurpation? Common Good and Constitutional Government

Abstract

The classical tradition of law and government supports lawful authority and condemns usurpation. But the common good sometimes provides a reason to sweep aside existing constitutional arrangements. This article considers the way in which authority and usurpation feature in Adrian Vermeule’s recent book, Common Good Constitutionalism, and thus reflects on the nature of constitutional government. Vermeule’s work combines a commendable philosophy of government with a questionable philosophy of legal reasoning, which weakens the force of Vermeule’s account of American constitutional law and practice. Reflection on the scope of the common good—on whose common good counts—has important implications for how, and for whom, authority should be exercised. Collective agency is important in securing the common good and representative democracy is an important means to unite a people in common action for their good. Constitutional government should aim to command popular support. Forms of constitutional government are contingent, but usurpation of lawful public authority is an evil that should be avoided.