An emerging legal theory has provoked strong reactions from both legal conservatives and progressives in the United States. Common-good constitutionalism, which departs from both originalism and progressive living constitutionalism, seeks to revive the classical legal tradition and return to the understanding of law as an ordinance of reason for the common good. It opposes the myth of the self-sufficient individual that has plagued modern times, and instead views the legal subject as a valued member of a wider community. Legal scholars from all over the world have weighed in on the debate. This Note seeks to participate in this ongoing conversation and examine whether common-good constitutionalism is a suitable method of constitutional and statutory interpretation in the Philippines, in view of the nation’s legal history, as well as the values and traditions of the Filipino people.
Part I provides a brief primer on the classical legal tradition; it discusses the telos of law and government, what the common good means, and the place of individual rights under common-good constitutionalism. Part II examines the adverse consequences of constitutional transplantation and argues that common-good constitutionalism is particularly compatible with the values and traditions of the Filipino people. Part III shows that the common good has always suffused our law—our Constitution, statutes, and jurisprudence. Lastly, Part IV turns to application and looks at how two constitutional provisions—the due process and free speech clauses—will be construed under common-good constitutionalism. Under a common-good approach to constitutional interpretation, the Supreme Court will reject the highly individualistic understanding of liberty exemplified by the infamous American case of Lochner v. New York. Instead, it will adopt a comprehensive—not a myopic—understanding of liberty, one that embraces both positive and negative liberty, as well as both ancient and modern liberty. It will abandon the use of the overbreadth doctrine to strike down police power regulations that do not involve free speech, and it will construe freedom of speech not in self-regarding terms but as an instrument to achieve higher social ends, such as collective self-government and democratic participation. This Paper merely provides a preliminary sketch of how common-good constitutionalism might operate in Philippine law.