New Paper: Common Good Constitutionalism and Constitutional Change

In case it is of any interest to our subscribers looking for more academic/longform/tedious(!) writing in a classical legal vein, I (Conor) have uploaded a working paper about Common Good Constitutionalism and constitutional change to SSRN. The paper was written for a forthcoming edited volume on Constitutional Change. I was invited to contribute a chapter on how Common Good Constitutionalism would address some core questions about constitutional amendment/change. The abstract is as follows:

This chapter offers a classical natural law framework for addressing key questions concerning constitutional change. This chapter proceeds in three parts. Part I outlines the core theoretical commitments of common good constitutionalism, which will clarify the general methodological framework common good constitutionalists would employ to engage with questions concerning constitutional change. Part II asks what this framework has to say about constitutional rules of change that relate to the process for changing the Constitution. Part III takes the same approach in relation to constitutional rules which try to limit the permissible substantive content of a change. 

One of the main arguments of the chapter is that there is no grand balance sheet that can be tallied up, in the abstract, to establish the unique justness or wickedness of certain kinds of constitutional arrangement. Some rules and forms of government structure will suit some political communities more than others, because of variables like a people’s level of social cohesion and trust, economic stability, moral virtue and so forth. This basic insight applies equally to those rules governing constitutional change. 

That said, the other core argument of the chapter is that careful reflection on the ultimate point or ends served by constitutional rules can aid theorists and constitutional regulators in elucidating basic rules of thumb, or useful conceptual heuristics, that can be borne in mind when prudently structuring a sound constitutional order and its rules of change.