Law as Reason, Not (Mere) Will

The New Digest is delighted to present a guest essay by William Branson Donahue, Notre Dame Law School Class of 2026. The essay is adapted from a paper recognized with a Faculty Award in Justice Amy Coney Barrett’s Modern Constitutional Theory Seminar at Notre Dame Law School (Fall 2025).

Introduction

There are two temptations in jurisprudence, mirror images that distort law in opposite directions. One conceives law as an artifact of command—the sheer will of a sovereign, whose authority begins and ends in decision. The other treats law as an occasion for the judge’s ideals—outcomes guided by sentiment, reverse-engineered into doctrine masquerading as principle. Both misdescribe the phenomenon they claim to govern. If law is merely will, it has no rational claim on the mind it purports to bind; if law is merely aspiration, it binds no one at all. Neither explains why a written Constitution does more than coordinate power, or why fidelity is an ethical duty of office rather than a professional habit. Law claims authority only if it orders power to ends not of anyone’s private choosing and does so through forms that let reason, not will, rule.

The classical legal tradition conceives of law in a holistic manner that harmonizes legal authority with moral truth. The roots of Western jurisprudence lie in a teleological understanding of Law, where purpose and end define its essence. Aristotle, in his Politics, distinguishes true forms of government from their perversions based on whether rulers pursue the common advantage or private gain. For Aristotle, Law is not mere command, but a product of practical reason (phronesis) aimed at eudaimonia, or human flourishing within the polis. St. Thomas Aquinas builds on this in his Summa Theologica, offering a foundational definition of law: “Law is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” Aquinas insists that law must remain intelligible as a guide to conduct and that it must order the community toward Justice; when a purported law egregiously contradicts natural Justice, it loses its binding character—lex injusta non est lex.

Each element of Aquinas’s definition carries weight: (1) law must rest on rational principles, not arbitrary will or whim; (2) law must aim at the well-being of the community, not the private advantage of rulers; (3) law must proceed from a rightful authority charged with the community’s care; and (4) law must be promulgated in an intelligible form so that it can guide conduct. A purported law that fails these tests does not merely disappoint; it becomes defective as law—because it no longer rules by reason.

This tradition influenced the American founding. James Wilson’s Lectures on Law echoed Aquinas: “Law is the rule of reason... directed to the common good.” The Massachusetts Constitution of 1780, drafted by John Adams, declared that government is instituted “for the common good... and not for the profit, honor, or private interest of any one man.” Even positivist-leaning thinkers like Blackstone affirmed natural law’s supremacy: human laws derive validity from alignment with reason and divine will. Common Good Constitutionalism (CGC), articulated by Adrian Vermeule, revives this teleological framework: that constitutional provisions are not arbitrary edicts but rational determinations aimed at Justice, peace, and human flourishing.

Modern constitutional thought approaches jurisprudence through a different lens. Originalism arose as a reaction against free-wheeling “Living Constitutionalism,” emphasizing judicial restraint, binding judges to the Constitution’s original public meaning rather than contemporary preferences. Yet, Originalism risks incompleteness. Vermeule critiques Originalism’s “moral sterility,” where law is severed from telos; without explaining why original meaning binds beyond “it’s the law,” it can drift toward voluntarism and semantic scholasticism. Pojanowski similarly notes that pure Originalism lacks “a theory of the judicial power” grounded in classical virtues like equity and prudence. This “hypertrophied Originalism” is overgrown, fixated on historical minutiae at the expense of moral truth.

However, Originalism and CGC need not be mortal enemies. Rather than viewing original meaning and the common good as opposing lodestars, a judge might deploy them in tandem—interpreting constitutional provisions in light of their original determinatio while also ensuring those provisions are applied in line with fundamental principles of Justice and the common good. This approach draws on what Vermeule describes as a “chastened version” of Textualism/Originalism. In such a synthesis, historical meaning is not rejected; it is situated within the classical framework that assumes law serves moral ends. Originalism need not be abandoned; it needs completion by the classical understanding of law’s purpose and moral framework.

I. Hypertrophied Originalism and its Classical Critics

Vermeule memorably contends that American Originalism became “hypertrophied:” a once modest interpretive principle swelled into a rigid, all-encompassing ideology. In the least charitable sense, Originalism developed an inward-looking obsession with its own legitimacy, spawning complex sub-doctrines and becoming, in Vermeule’s words, “elaborate and indeed increasingly byzantine,” an “ever-more-technical scholasticism of the American Right.” Second, hypertrophied Originalism treats historical linguistic meaning as the whole of law, excluding or downplaying purpose, principle, and moral value as “external” to interpretation. By bracketing teleology, it risks flattening the law, stripping it of context and ethical content. Third, the United States’ old and hard-to-amend Constitution intensifies the method’s demands: judges often feel pressure to project themselves backward into the mental universe of the 1780s, attempting a near-impossible historical recreative act. Historical inquiry belongs to serious interpretation, but the extreme version of Originalism pretends that judges can efface centuries of intervening development and channel the framers like mediums at a séance; outside the United States, such an approach is remarkably unpopular.

Vermeule’s critique is not that consulting original meaning is inherently wrong—indeed, historical meaning often provides important evidence of a law’s purpose or limits. Rather, the critique is twofold: (1) Originalism as an exclusive methodology is too narrow, ignoring that law’s authority comes from its alignment with reason and Justice, not merely from historical adoption; and (2) Originalism as practiced in the U.S. became too artificial, often divorced from the classical interpretive practices that earlier American judges actually employed.

On the first point, classical theorists argue that the moral dimension of law cannot be bracketed out. Justice Scalia himself conceded that the Constitution’s purpose includes preventing certain changes by embedding rights beyond ordinary politics. The Preamble likewise lists “establish Justice” and “promote the general Welfare” as raisons d’être. To interpret such a charter while refusing to consider telos or the requirements of Justice is, from a classical perspective, to miss the forest for the trees.

On the second point—the gap between originalist theory and judicial practice—CGC proponents point out a rich irony: American judges throughout history, including icons such as John Marshall, often employed classical tools while professing fidelity to text or original understanding. Marshall’s reminder in McCulloch v. Maryland that “it is a constitution we are expounding” implies a holistic reading, not narrow parsing. Longstanding canons (the presumption against absurd results, the rule of lenity, the avoidance canon) also resist justification by pure semantic Textualism; they reflect normative commitments about rational governance and Justice.

Vermeule notes that Justice Scalia championed many “classically-rooted” canons that assume law’s rationality. Scalia insisted, for example, on a presumption that every statute is enacted to pursue the public interest, not to accomplish irrational or immoral ends. He would read laws “as if” the legislature had a reasonable purpose—which is essentially a benign legal fiction that legislatures always seek the common good. In doing so, Scalia was drawing from a tradition older than the republic: judges have long employed fictions and presumptions to interpret laws in harmony with reason. Roman law held that “the law does not intend anything inconvenient or unjust,” a maxim echoed by Blackstone and numerous American jurists. Thus, even as Scalia renounced “purposivism” in theory, his practice retained a classical inflection that saved his Textualism from sterility. Unfortunately, many of Scalia’s disciples abandoned these tempering presumptions, turning Originalism into a more extreme, austere methodology that, in Vermeule’s words, “officially eschews any inquiry into the lawmaker’s rational aim.” The result is a caricature of classical interpretation—one that declares, in effect, that “the law is just the law’s text at the time of enactment,” with no regard to the ratio legis beyond what historical semantics can deliver.

If law is reduced to historical texts and expected applications, judges can idolize the letter while ignoring principle. Cases like Bostock v. Clayton County illustrate how an insistence on ordinary meaning, coupled with an explicit disclaimer of teleological context, can yield results that appear decoupled from coherent justification on either side.

In sum, the classical critique of hypertrophied Originalism is not a dismissal of the importance of the founding text or historical understanding. It is a plea to recover the richer conception of legal interpretation that prevailed for centuries, wherein text, history, structure, and telos were used holistically. Vermeule credits modern debates for inching toward this realization: he suggests that many “inclusive” originalists and even positivists now employ classical reasoning in substance while preserving the outward forms of Originalism as sociological piety.

Vermeule even suggests that contemporary debates have reached a kind of settlement: the outward forms of Originalism and Positivism may persist as a sociological comfort, but classical reasoning increasingly supplies the operative content. The question becomes whether judges do so candidly and under constraint.

Vermeule’s plea to the legal community is to drop the pretense and openly embrace the classical framework that already undergirds our best legal thinking. In his latest work, he leaves room for “a better Originalism”—one integrated with classical principles. Let us now turn to what such a “chastened” Originalism looks like, and how it can operate in tandem with CGC rather than at cross-purposes.

II. CGC in Practice: Moral Principles Complementing Textual Meaning

As Justice Barrett and others have noted, looking to history and original meaning was always part of American jurisprudence; it’s a way of showing fidelity to the people’s ordinance. The classical tradition simply asks: Fidelity for the sake of what? And it answers: for the sake of the common good that law is meant to serve. This does not subvert the Founders’ design—it completes it, by recalling that the Founders assumed a moral universe in which their Constitution would operate. When properly integrated, CGC and Originalism guide the Court toward decisions that are faithful to the enacted Constitution and conducive to the flourishing of the Republic. Embracing this integration requires discarding caricatures and acknowledging what classical jurists and modern originalists alike understand: law is a reasoned commitment to the common good, enacted through legitimate authority and interpreted with both fidelity and wisdom. In this light, the supposed chasm between classical and originalist approaches disappears. What remains is a path for constitutional adjudication that is at once grounded and aspirational—grounded in the authoritative texts and history that bind us, aspirational in its commitment that those texts always be applied in service of the enduring common good. Call this not a new theory, but a recovery of first principles. The judge is not an oracle and not an engineer. She is a fiduciary of a rational law: bound in the ordinary case by the text as originally received; cautious in the face of legislative settlements; quick to defer to the wisdom of the legislature, and only in the rare misfire, under the discipline of equity and tradition, willing to relieve the letter to vindicate the law’s reason. That is not an accommodation between rival orthodoxies. It is the thing itself: law as reason, not will.

A key contribution of the classical approach is to furnish traditional interpretive principles that guide judges in resolving ambiguity in favor of the common good. CGC does not ask judges to roam freely in the realm of abstract morality; it asks them to apply the law in coherence with its moral purpose, especially in difficult cases. In ordinary “easy” cases, where the law’s text and historical meaning clearly point to an outcome, a classical judge will reach the same result as an originalist. Classical theory “builds in a form of Textualism in easy cases,” as Vermeule and Conor Casey have explained. Judges proceed on the basis of respect for the text in “the great bulk of ordinary cases,” no less than a strict positivist would. This underscores that CGC is not an “anything-goes” philosophy: fidelity to the enacted text is paramount unless there is a compelling reason grounded in higher law to deviate.

It is only in a subset of truly hard or exceptional cases that the classical approach meaningfully diverges, by allowing moral and teleological reasoning to guide interpretation. Ambiguities, unforeseen scenarios, or misfires of a rule arise when applying the letter would defeat the law’s rational purpose. In such cases, classical jurisprudence employs equity (epikeia): the judge treats the law’s general language as defeasible in extraordinary circumstances so that reason governs the application. When broad clauses leave multiple readings plausible, the judge should prefer the construction that avoids absurdity and best serves Justice and the common good. This approach is not alien to our legal heritage; it mirrors longstanding canons such as the absurdity doctrine, which allows judges to depart from plain meaning when adherence would produce a patently absurd outcome contrary to the legislature’s presumed intent. The classical view justifies the doctrine at a deeper level: because the lawmaker is presumed to ordain laws for good, not for evil, any interpretation that grossly undermines fundamental Justice is suspect as a matter of interpretation. Equity does not erase the letter; it vindicates the reason that made the letter law.

Notably, even self-described originalist judges have applied such reasoning in practice, sometimes without labeling it “common good” reasoning. In Snyder v. Phelps (2011), Justice Alito’s dissent argued that the First Amendment should not protect vicious harassment of grieving families at funerals—a position grounded in the common good of public decency and communal respect, even as the majority took a more absolutist view of free speech. Similarly, in United States v. Stevens (2010), the Court grappled with a law banning crush videos (extreme animal cruelty); the majority struck down the ban on free speech grounds, but some Justices were willing to carve out exceptions for speech lacking serious value, implicitly invoking moral limits. These episodes show that when originalists confront issues that the Framers’ text left open or ambiguous, many instinctively turned to moral and traditional principles to guide their judgment—precisely what CGC calls for.

The synergy between the approaches can also be seen theoretically. Understanding original public meaning often requires grasping the moral context and purposes that contemporaries attached to legal terms of art. The Founding generation operated within a classical legal mindset influenced by natural law and the ius gentium; provisions such as “due process” and “cruel and unusual punishments” presupposed background principles of Justice. To recover what such texts meant, an interpreter cannot ignore those moral-philosophical assumptions. In this way, common-good reasoning does not compete with determining original meaning; it helps determine it.

III. Rebutting the Claim that CGC Is “Results-Oriented” Realism

A common criticism from the originalist camp is that Common Good Constitutionalism, or any overt use of moral principles in judging, is just “results-oriented” jurisprudence under a new label. In other words, skeptics worry CGC is a form of legal realism—judges picking outcomes based on their own value preferences and justifying them post hoc with moral language. If CGC is honestly engaged in light of the classical tradition, this is not a fair characterization.

CGC as articulated by Vermeule and others is not a license for judges to ignore texts or rewrite laws to suit their policy druthers. A classical judge begins with the text and historical understanding as the baseline of legitimacy—one does not simply override or ignore the enacted text or its original public meaning. In this, the judge aligns with traditional originalist commitments to constitutional fidelity. But crucially, the original meaning is the minimum commitment; it does not prohibit the judge from also considering the principles behind the text, or subsequent traditions that elucidate the text’s application. Vermeule additionally emphasizes a strong role for deference: judges, in his model, generally should “defer to any reasonable pursuit of the common good undertaken by legislatures and executives.” Rather than empowering judges to impose a rigid moral vision, CGC counsels judges to respect the political branches’ determinations of what the common good requires, so long as those determinations are reasonable and just. This is hardly judicial usurpation—it’s a more restrained posture than some libertarian originalists would take. It aligns with the classical idea that those with lawmaking authority have primary responsibility for promoting communal well-being, while judges act in a more limited capacity. CGC readily affirms that the written Constitution, statutes, and other positive laws are binding as determinatio of the lawmaking authority.

Critics also argue that once judges are allowed to consider the substantive goodness of outcomes, they are given license to impose their preferences—the very problem Originalism sought to cure. The objection targets a real danger, but it overstates the discretion CGC claims. A classical judge begins with text and tradition, and she treats the political branches as the primary institutions charged with determinations of prudence.

CGC does not give judges a blank check. The “results-oriented” charge overlooks the objective constraints in the classical tradition. CGC operates through established legal channels: interpretive canons favoring Justice, presumptions about legislative intent, historical practices, equitable exceptions—all of which exist in conventional legal methodology. A judge cannot suddenly declare a new “right” or power out of thin air on common-good grounds—as living constitutionalists have—without running afoul of these guardrails. The classical approach is less prone to activism in some ways because it demands the judge articulate an objective rationale rooted in tradition or natural law, which can be scrutinized and debated. The classical view does allow that in extreme cases a positive law may be disregarded (e.g. a law commanding something evil), but this is not whim—it’s a measured doctrine that unjust laws are not binding in foro conscientiae.

Furthermore, Originalism itself is not value-neutral simply because it emphasizes procedure—nor was it ever about mechanical parsing of text. Originalism presupposes that adhering to enacted choices is just, that stability promotes the rule of law, and that change should proceed democratically rather than by judicial will. In hard cases, where historical evidence runs thin or conflicts, originalists still exercise judgment at the point of application. As noted in Calvinball Constitutionalism, even the most avowed originalist cannot avoid “normative assumptions and judgments…at the point of application, especially in hard cases.” The difference is that CGC wants such value judgments to be made explicitly and guided by the classical understanding of Justice, rather than implicitly or under the table.

Appealing to higher principles does not violate a judge’s oath to uphold “the Constitution and laws of the United States.” The Constitution was drafted and ratified to “establish Justice” and “secure the general Welfare,” and the classical tradition treats those ends as internal to legal meaning. Interpreting ambiguous provisions in a way that vindicates those ends does not replace the law with aspiration; it treats law as an ordinance of reason that claims authority because it orders power toward the common good.

Conclusion

In Federalist 51, Madison famously wrote that government is the “greatest of all reflections on human nature.” A constitution reflects a people’s nature and aspirations at a point in time, but interpretation tests those aspirations against enduring truths of human nature across time. By deploying Originalism and CGC in concert, judges can remain faithful to the voice of the People in history and the voice of right reason in application.

Such an approach would encourage Justices to remain tethered firmly to the constitutional text and to sound historical methodology, while also remembering why that text exists—to “secure the Blessings of Liberty to ourselves and our Posterity,” as the Preamble declares, which is an inherently common-good aspiration. Such a jurisprudence, classically informed and rigorously originalist, would be truer to what the American founders envisioned and to what generations of legal philosophers taught. It offers a path to legal interpretation that is faithful to the law’s letter and its spirit, achieving the classical synthesis of text, context, and Justice envisioned by thinkers from Aristotle and Aquinas to James Wilson and beyond. It guards against the Scylla of unbounded moral adjudication (judges doing whatever they personally think best) and the Charybdis of hyper-literalism that ignores consequences and Justice. By discarding the false binary and viewing original meaning through the lens of the classical common good, judges can be faithful both to the Constitution and to the enduring principles of our legal heritage. This is not a compromise; it is a completion.