Protecting Commoners’ Goods Pluralist Coexistence Through the Common Good Constitution’s Subsidiarity Municipalism

Abstract Proceeding from the assumption that Harvard Law Professor Adrian Vermeule’s theory of common good constitutionalism must ultimately prevail in the debate about what Anglo-American law is, this Article contributes to the discussion by proposing how his skeletal theory can serve the interests of outsiders. Building on the perspective informing the author’s previous essay The Jurisprudence of Trousered Apes, the Article focuses on what common law constitutionalism means for commoners. It seeks to anticipate and allay that natural anxiety which the revival of Tradition provokes for outsiders by demonstrating how common good constitutionalism can be employed to advance pluralism. For this demonstration, it sketches a constitutional framework for producing pluralist outcomes based on the principle of subsidiarity, a pillar of the classical legal tradition. It contends that classical subsidiarity can produce a constitutionalism, one that the Article denominates subsidiarity municipalism, to assist commoners and other dissenters from Tradition in protecting their temporal gains.