Originalism is out, Common Good Constitutionalism is in

It’s January 2026, time for fashion magazines and style mavens to let followers know what’s “In” and what’s “Out” this year. When it comes to legal theories, judiciary “fashionistas” say originalism is definitely on its way out.

Birthed by Robert Bork on the campus of Yale Law School and nurtured by the Federalist Society, originalism has dominated the conservative legal landscape for decades. Its adherents believe once judges discern the “original intent” of the Constitution’s Framers, they can apply that 18th-century understanding to modern-day court cases. However, originalism alone is no longer enough to bring about the extreme policies of the MAGA right.

Liberals have learned to mine history and wield “progressive originalism” in support of their own causes. So now it’s out with originalism and in with “Common Good Constitutionalism” or CGC for short.

Meet Adrian Vermeule

CGC, which in overlapping political circles is sometimes referred to as “Common Good Conservatism,” is the strategy of Harvard law professor Adrian Vermeule. An intellectual apologist for “the premier radicalism on the New Right,” Vermeule once clerked for originalist Antonin Scalia but now believes originalism has “outlived its utility” and become “an obstacle” to advancing the conservative agenda. Drawing on the law of ancient Rome, canon law and a smattering of European legal tradition, Vermeule cobbled together a new legal theory he christened Common Good Constitutionalism.

As the name suggests, CGC is based on the idea that government’s role is to shepherd people, associations and society toward the “common good,” which Vermeule defines broadly as “the general welfare” or “public interest.” Communities and countries can realize the common good by taking steps to ensure justice, peace and abundance (from the 16th-century Catholic idea of ragion di stato, or “the reason of state”) along with “health, safety, economic security” and a “right relationship with the natural environment” (Vermeule’s own additions).

Vermeule unveiled his replacement legal theory in the March 2020 issue of The Atlantic and expounded on it further in his 2022 book, Common Good Constitutionalism: Recovering the Classical Legal Tradition.

Legislating morality

Some progressives might read these objectives and wholeheartedly agree with their pursuit, seeing in them calls to steward the environment and protect the public’s health and well-being. However, Vermeule’s conception of “the common good” as pursued through CGC encourages the government to “legislate morality” and jettisons individual rights, thereby putting at risk free speech, free assembly, reproductive choice, contraception and same-sex marriage.

Unlike originalists, who supposedly extract meaning from the Constitution by analyzing its context and the Founders’ intentions, adherents of CGC are encouraged to read into the Constitution their own notions of what makes for the common good when crafting and interpreting the law. For Vermeule, this means bypassing modern jurisprudence and leaning heavily on the legal theories of the Catholic Church.

“Vermeule’s conception of ‘the common good’ as pursued through CGC encourages the government to ‘legislate morality’ and jettisons individual rights.”

In 2016, Vermeule joined the Catholic Church and has embraced its most extreme conservative teachings with the zeal of the converted. He often crosses paths with fellow convert JD Vance and various followers of the controversial conservative organization Opus Dei. Vermeule endorses the Catholic philosophy of integralism, which eliminates church-state barriers and integrates the religious beliefs of the church into every area of society.

With this in mind, he has argued atheists should not be allowed to hold public office and Catholic immigrants ought to be given priority over Muslims, Protestants and Jews. If those from other faiths convert to Catholicism to gain an immigration advantage, then so much the better. Vermeule hopes one day for “the eventual formation of the Empire of Our Lady of Guadalupe, and ultimately the world government required by natural law.”

In Catholic moral theology, “natural law” is God’s eternal and immutable law. Originally the work of Medieval theologian Thomas Aquinas, natural law received renewed attention from Catholic clerics in the 1960s. This New Natural Law (or NNL) was a reaction to Vatican II and the sexual revolution of the age. NNL primarily concerns itself with sexual morality/deviancy, family collapse and social order.

Conservative organizations like the Claremont Institute and the Heritage Foundation have used the tenets of NNL to critique and oppose same-sex marriage, birth control, premarital sex, divorce and consent-based approaches to sexual morality. Politicians and priests most often invoke the theory of natural law to bolster anti-LGBTQ policies.

Using the legal theory of CGC, conservative judges would be free to ignore provisions of the Constitution or laws that conflict with natural law and the common good.

More power for Trump

Vermeule and others on the New Right claim the corruption and tyranny of the Biden administration, along with the left’s obsession with gender and opposition to religion, has forced America into a post-Constitutional age and thus effected the need for CGC.

Unlike the legal decisions of the 1960s Civil Rights era, when Vermeule insists U.S. officials “forgot their duty to promote the common good,” CGC is not concerned with preserving individual autonomy or preventing the abuse of power. What’s most important in CGC is ensuring the president has the power he needs to rule, including the use of violence.

“What’s most important in CGC is ensuring the president has the power he needs to rule, including the use of violence.”

After 9/11, Vermeule condoned the ethnic and religious profiling of Muslim Americans and the torture and indefinite imprisonment of enemy combatants. He believed this was the “natural” and “inevitable” expansion of presidential powers befitting a new age of terror.

Decades later, Vermeule argued a strong executive and bureaucracy staffed with religious zealots was necessary to address a more insidious enemy: liberals and their allies. Comparing the emperors of Rome to the president of the United States, he wrote, “(The law) is to a large degree what the president and the agencies say it is. (Presidential power is) roughly comparable to the aggregate of powers held by Augustus and his successors.”

Like many on the right, Vermeule is enamored with the Roman Empire and views it as an example of social flourishing supported by the law. Although his statement about the presidency is grossly untrue, his theory of CGC provides President Donald Trump the legal cover to defy the courts, abandon democracy and ignore the U.S. Constitution.

To Vermeule and supporters of CGC, democracy is “valuable only insofar as it contributes to the common good.” Should state and local governments fail to protect the common good, it is the duty of federal authorities to intervene and take control. Judges, too, are ordered to “broadly defer to the administrative state, within reasonable boundaries.”

In July 2025, Vermeule complained in The New York Times that lawsuits brought against the president in lower courts were interfering with Trump’s ability to govern well. He wrote, “The president’s Article II duty to ‘take care that the law be faithfully executed’ gives him an independent power to determine what ‘the law,’ including the Constitution, means, for purposes of exercising executive power.”

“Much of CGC is constitutional theory playing dress-up with the dogmatic garb of Medieval Catholicism.”

While much of CGC is constitutional theory playing dress-up with the dogmatic garb of Medieval Catholicism, Vermeule’s call for an all-powerful executive is inspired by the work of Nazi jurist and intellectual defender Carl Schmitt, a favorite political theorist of Christian nationalists.

A ‘Christian strategy’

CGC is more than just a legal theory.

As Vermeule wrote in the religious journal First Things, it is part of a broader “Christian strategy” in which the “universal jurisdiction and mission of the church” permits it to “enter into coalitions that would be unthinkable.” With an “ends justify the means” mentality, Christian politicians are free to make whatever political commitments are necessary because such actions are not “articles of a sacred faith” just “tactical tools to be handled in whatever way best serves the cause of Christ.”

The boundaries of this flexibility, which Vermeule likens to the Apostle Paul’s strategy to be “all things to all men,” is his own sense of morality. It’s worth noting that, from this vantage point, using the state to provide health care to children and food for the poor is immoral if the state requires conditions and restrictions that might promote or enforce liberal ideology.

In a recent interview with reporters from The New York Times, Trump appeared to echo the sentiments of CGC when he said the only limit on his global powers was his “own morality.” The political climate of his second administration is providing his staff and supporters ample opportunity to exploit CGC in service of the president’s and their own ambitions.

“Common good constitutionalism, at this moment in time, is being utilized as an intellectual justification for the dismantling of American democracy and the imposition of authoritarian government,” said Darrell A.H. Miller, a professor at the University of Chicago Law School. Under the guise of “doing what’s best for the American people,” Trump has signaled his government will be intervening in the upcoming midterm elections to root out “fraudulent voting” in Democratic-run states. Some of his advisers are considering deploying ICE agents at polling locations to prevent alleged noncitizens from voting.

There is little evidence such illegal voting happens.

Supporters of CGC, including Newsweek Senior Editor-at-Large Josh Hammer, believe conservatives could deploy CGC to achieve political goals such as extending the 14th Amendment’s equal protection clause to “unborn children.” A SCOTUS decision ruling in favor of “fetal personhood” would in effect create a federal ban on abortion — something originalism has so far failed to do.

Combining CGC with originalism, what Hammer calls “Common Good Originalism,” could also eliminate birthright citizenship for the children of undocumented immigrants born in the United States. The same is true for ending the wall of separation between church and state in public schools.

Both Vermeule and Hammer see CGC as a viable strategy to revise and restrain free speech under the First Amendment, including overturning the 1964 ruling in New York Times Co. v. Sullivan, which makes it more difficult for public figures to sue news organizations for defamation.

While Justice Clarence Thomas has been outspoken about his desire to see Sullivan overturned, along with Griswold v. Connecticut (contraception), Lawrence v. Texas (same-sex intimacy), and Obergefell v. Hodges (same-sex marriage) and Justice Samuel Alito has occasionally deferred to the collective good over the individual, most court watchers don’t see CGC making an appearance in a SCOTUS decision anytime soon. However, the high court’s decision in 2024 designating the president a “branch of government unto himself” and granting him immunity from prosecution over official actions, certainly aligns with the agenda of CGC.

Already intruding

The legal theory of CGC already has begun to make the rounds among the lower courts. James Ho, a justice for the Fifth Circuit U.S. Court of Appeals and name on Trump’s 2020 SCOTUS short list, said while he considers himself an originalist, he is not opposed to CGC. Several appellate court judges have noted the new legal theory in their decisions. In May 2022, United States v. Tabor used CGC to convict a man of the sexual abuse of a child, thereby enshrining that legal theory as precedent.

“CGC’s greatest impact is yet to come.”

But CGC’s greatest impact is yet to come. Angry with originalists who’ve failed to constrain liberal culture, law students and young legal professionals see the more aggressive theory of CGC as a keen weapon in the culture wars. Even some of the young guns at the Federalist Society are excited by the prospect of utilizing CGC.

Eric Segall, a law professor at Georgia State University, says, “It’s dangerous because it does have the potential to and has, to some degree, influenced young law students who may, someday, be in positions of power.” In his second term, Trump will be securing the confirmation of 150 new judges. No doubt several among them will be supporters of CGC.

Segall would rather Vermeule use his influence within the New Right for good. “I wish he would use his powers to help the poor, the downtrodden, rather than the rich and powerful.”

Just as there is no one way to wear the hottest fashion trends, some see different applications for CGC.

Boston University professor Linda C. McCain, who specializes in family law and feminist legal theory, sees CGC as a legal theory that could be adapted to fit other moral codes. “I agree that you need a moral reading of the Constitution. It’s just that my view of what the moral reading is is not Vermeule’s reading.”

While most followers of Vermeule’s CGC believe only they have the moral solutions to society’s ills, McCain and coauthor James E. Fleming published a piece in the Harvard Journal of Law & Public Policy calling for greater participation from the public and a more ecumenical outlook when determining the common good.

Only time will tell if CGC is just a passing legal fad or a new standard here to stay.

 

Kristen Thomason is a freelance writer and journalist living outside Edinburgh in the United Kingdom. She has produced educational and promotional media for national and international religious organizations and public television. Kristen also worked with local churches in Metro D.C. and Toronto, Canada. With a master’s degree in communication and undergraduate degrees in media studies and classics, she is interested in the intersection of politics, religion, history and the arts.

 

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