Utility, Virtue, and the Common Good

UTILITY, VIRTUE, AND THE COMMON GOOD

Why Consequentialism Cannot Ground Constitutional Order

American Epistemology Institute

April 2026

Abstract

Contemporary jurisprudence and legislative practice increasingly treat utility—aggregate benefit, preference satisfaction, net social welfare—as the operative standard of constitutional justice. This paper argues that the founding generation understood utility as an instrument ordered to antecedent goods, not as the measure that defines what goods are. Thomas Aquinas distinguished three classes of good: the honestum (intrinsic good, worthy of pursuit for its own sake), the utile (useful good, worthy insofar as it serves intrinsic ends), and the delectabile (pleasant good). The common good (—bonum commune) belongs to the first class; utility belongs to the second. When utility is elevated from instrument to telos, intrinsic goods become optional, virtue becomes a residual sentiment, and constitutional order becomes whatever a suitably aggregated consensus prefers. John Adams’s preface to A Defence of the Constitutions of Government of the United States of America grounds republican legitimacy in virtue rather than preference; the state bills of rights of Virginia (1776), Massachusetts (1780), and Pennsylvania (1776) embed virtue requirements as positive constitutional law. Together, these sources establish that the founding understood consequentialist reasoning as a tool within a prior moral order, not as a replacement for it. The utilitarian inversion, executed through Bentham’s reconceptualization and consolidated through legal realism and judicial balancing tests, produced a constitutional order in which utility appears to measure justice while actually displacing it. Recovery requires restoring the founding hierarchy: intrinsic goods constrain utility; virtue sustains republican order; the common good is the political telos that utility serves.

Introduction

Every legal system answers a prior philosophical question: what makes a law just? The question admits two fundamentally incompatible answers. One answer locates justice in a moral order discoverable by reason—an order that constrains what human law may command regardless of what aggregate preference demands. The other answer locates justice in the output of a preference-aggregating mechanism: democratic majorities, judicial balancing, or cost-benefit analysis. The same vocabulary persists across both answers—rights, liberty, equality, the common good—but the metaphysical content differs at the ground level, and that difference determines everything downstream.

As this Institute established in Consent Conditions Legitimacy (2026), consent conditions political legitimacy but does not create justice.¹¹  Natural law provides the standard against which consent is measured. This paper advances the parallel argument from a different angle: utility measures efficiency within a moral framework but cannot constitute that framework. Utility calculates the optimal path to a destination already fixed by intrinsic goods; it cannot determine which destination is worth reaching.

The distinction is not arcane philosophy. Law is applied metaphysics—government enforcing derivations of particular answers to fundamental questions about reality through state power. Constitutional law enforces answers to metaphysical questions about human nature and the good; which answers it enforces is the only genuine question. When legislative balancing tests, regulatory cost-benefit analysis, and judicial proportionality review treat utility maximization as the operative standard of constitutional validity, the state enforces a particular metaphysical answer: that justice is whatever produces the best aggregate outcome by the prevailing measurement. When the founding generation embedded virtue requirements in state constitutions and grounded republican government in the cultivation of moral character, they enforced a different answer: that justice is conformity to an objective moral order that utility serves but cannot supplant. The servant cannot become the master.

Thomas Aquinas articulated the foundational distinction: the honestum (intrinsic good, pursued for its own sake), the utile (useful good, pursued for the sake of something else), and the delectabile (pleasant good). The common good (—bonum commune) belongs to the first class. Utility belongs to the second. Elevating utility to the position of telos produces what the Hegelian tradition termed aufheben: the vocabulary of justice persists while its substance inverts. Rights become “interests” to be weighed; liberty becomes a factor in a balancing test; the common good becomes the maximally preferred state of affairs as measured by whatever aggregation mechanism currently prevails.

John Adams, drafting the preface to A Defence of the Constitutions of Government of the United States of America, did not ground republican legitimacy in preference satisfaction. He grounded it in virtue—the moral formation of citizens capable of perceiving and pursuing genuine goods. Virginia’s Declaration of Rights, the Massachusetts Constitution that Adams himself drafted, and the Pennsylvania Constitution of 1776 embedded virtue requirements as positive constitutional law, treating moral character as the load-bearing condition of republican order, the foundation on which every enumerated right and separated power depends. These sources establish the founding order. This paper traces how that order was inverted, what the inversion has produced, and what recovery requires.

I.  The Thomistic Hierarchy of Goods

A. Three Goods, One Order

Aquinas distinguishes three classes of good that correspond to three modes of practical reasoning. The bonum honestum (intrinsic good) is pursued for its own sake—its goodness is intrinsic to what it is, independent of what it produces. The bonum utile (useful good) is pursued as a means to an end that lies beyond itself—it is good insofar as it conduces to something honestum. The bonum delectabile (pleasant good) is pursued because of the satisfaction attending its attainment—good in the experiencing of it, its goodness residing nowhere but in the pleasure attending attainment.²²

The hierarchy maps the structure of practical reason itself—the ordering principle by which reason distinguishes what is worth pursuing for its own sake from what merely conduces to it, and what conduces from what merely pleases. To pursue the useful without reference to the intrinsically good is to optimize without a destination—to minimize cost without specifying what the cost is incurred for. To pursue the pleasant without reference to the honestum is to mistake agreeable sensation for genuine human flourishing. The ordering principle—honestum above utile above delectabile—maps the conditions under which human practical reason functions correctly rather than pathologically.

This framework directly engages the utilitarian position. Bentham’s “greatest happiness principle” collapses the honestum into an instance of the delectabile (pleasure as the master good) and then directs practical reason toward maximum aggregate delectabile as the operative standard. The utile becomes the instrument of delectabile-maximization. The honestum disappears—or rather, it persists under the label “utility” while its content has been evacuated. Whatever the utilitarian calculus endorses, that endorsement constitutes justice on utilitarian premises. The label persists; the substance inverts.

B. The Common Good as Political Telos

The common good in Thomistic political philosophy is a specific metaphysical category carrying content fixed by human nature, irreducible to whatever majority preference happens to favor. Aquinas states the political implication directly: law must be directed to the common good, above all else.³³ The common good (bonum commune) is the ordering condition of private goods—the arrangement of social life that makes the pursuit of genuine individual goods possible—anterior to their aggregation and irreducible to it. Aggregating private utilities does not produce the common good; it produces whatever the aggregate preferences happen to favor at the moment of measurement, which may or may not align with the objective conditions that make individual flourishing possible.

Aquinas identifies three non-negotiable constituents of the common good: sufficiency (the material conditions necessary for human life), peace (the ordered absence of destructive conflict), and just administration (governance that renders to each what is due by right, not what produces optimal aggregate outcomes).⁴⁴ These constituents are intrinsic goods—conditions that must obtain because of what humans are, not because they happen to be preferred. They constrain what utility may do; they are not themselves products of utilitarian calculation.

Aquinas also distinguishes two modes by which human law derives from natural law: by way of conclusion (deductive derivation, as the prohibition of murder follows from the precept to preserve innocent life) and by way of determination (prudential specification of how a universal principle applies in particular circumstances).⁵⁵ In both modes, positive law takes its bearings from natural law—from the objective moral order grounded in human nature. What human law cannot do is depart from natural law on the grounds that utility requires it. An unjust law, however procedurally enacted, wears law’s form and carries violence’s substance.⁶⁶

This framework defeats the utilitarian claim that constitutional justice can be understood as aggregate welfare maximization. The claim fails because the framework it presupposes—that what humans need is reducible to what humans prefer—contradicts the natural law account of human nature. Humans need specific conditions for flourishing whether or not they prefer them; they may prefer conditions contrary to genuine flourishing. Utility measures preferences; it cannot correct them. A standard grounded in objective human nature, knowable through reason, distinguishes genuine goods from preferred satisfactions. Utility cannot.

II.  Adams and the Founding’s Account of Virtue

A. The Defence Preface: Republics and the Order of Soul

John Adams, drafting the preface to A Defence of the Constitutions of Government of the United States of America in 1787, confronted the failure of simple republican forms in ancient and modern history. His argument, developed across three volumes, is that republics collapse when institutional design fails to account for human passion and faction—when utility (majority preference) is elevated above virtue (ordered moral character) as the governing principle of political life.

Adams wrote: “The proposition that the people are the best keepers of their own liberties is not true. They are the worst conceivable; they are no keepers at all if we mean by the people the multitude.”⁷⁷ The claim is constitutional in register and diagnostic in purpose: republican order has foundational requirements, and the ungoverned multitude fails to meet them. A people whose appetites and passions have not been ordered and tempered by virtue cannot govern themselves by aggregating those appetites and passions through democratic mechanisms. Utility-maximization among the ungoverned multitude produces faction, not justice.

Adams was drawing on a rich tradition—Ciceronian, Polybian, Aristotelian—that located the condition of republican legitimacy in the moral formation of citizens. His contribution was to translate this tradition into constitutional architecture: the separation of powers, the bicameral legislature, the independent judiciary. But the architecture presupposed a prior condition: citizens and magistrates formed by virtue, capable of perceiving genuine goods and pursuing them against the pressure of short-term utility. Remove the prior condition, and the architecture becomes instrumental to faction rather than resistant to it.⁸⁸

The practical implication Adams drew: constitutions must cultivate virtue—the prior condition without which preference aggregation produces faction rather than justice. This is why the Massachusetts Constitution that Adams drafted in 1780 enumerated rights and powers and embedded affirmative obligations for the cultivation of moral character. The constitutional order was designed to sustain the moral formation that makes constitutional order possible. In Adams’s framework, the prior order determines what utility may measure; utility determines nothing about the prior order.

B. Virtue as Constitutional Architecture

Adams understood virtue in the Aristotelian-Thomistic sense: the stable disposition of character by which a person reliably pursues genuine goods rather than apparent goods. Justice, prudence, temperance, and fortitude are virtues because they constitute the soul’s proper ordering—the condition in which practical reason functions correctly rather than being hijacked by passion or faction. A republic governed by utility rather than virtue is a republic in which passion and faction have captured the mechanism of governance; the majority will becomes the instrument of whatever appetites are currently dominant.

This distinction is constitutionally decisive. Utility-based jurisprudence evaluates legal arrangements by their outcomes—do they produce more aggregate satisfaction than the alternatives? Virtue-based jurisprudence evaluates legal arrangements by whether they sustain the conditions under which citizens can become the kind of persons capable of self-governance—again a recognition of deference to something that exists prior to the agreements of man. These evaluations can recommend opposite courses of action. A policy that maximizes aggregate preference satisfaction may simultaneously destroy the conditions of moral formation that make republican self-governance possible. A policy that imposes discipline on preference-formation—requiring certain standards in education, certain acknowledgments of moral reality in public life—may reduce aggregate utility while sustaining republican order.

Adams saw this clearly. His constitutional architecture was designed to frustrate faction, force deliberation, and sustain the institutional conditions under which virtue could operate—preference aggregation was the pathology his architecture was built to thwart; virtue’s operation was the function it was built to enable. The complex forms he defended—balanced constitutions, independent judiciary, separated powers—were virtue-enabling in design, virtue-enabling in purpose, each built to frustrate faction and sustain the conditions under which ordered character could govern rather than ungoverned appetite. Utility, for Adams, was a consequence of the properly ordered republic; it was never its foundation.

III.  State Bills of Rights: Positive Law of Intrinsic Goods

A. Virginia, Massachusetts, and Pennsylvania

The founding generation’s philosophy of virtue became positive constitutional law. The state bills of rights of Virginia (1776), Massachusetts (1780), and Pennsylvania (1776) treat moral character as a constitutional condition of republican government—load-bearing provisions, each one a constitutional condition, each one carrying weight the structure of free government cannot do without.

Virginia’s Declaration of Rights, drafted by George Mason in 1776, states in Section 15: “That no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.”⁹ The logical structure is conditional: the blessings of liberty (utility) depend on virtue, not the reverse. Utility is the consequence; virtue is the condition. Remove the condition, and the consequence disappears.

Adams’s Massachusetts Constitution of 1780 is still more explicit. Part I, Article XVIII declares: “A frequent recurrence to the fundamental principles of the constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the advantages of liberty and to maintain a free government.”¹⁰ The adverbial phrase “absolutely necessary” positions virtue as the condition of possibility for constitutional order—condition first, structure second, the prior reality without which the institutional shell has nothing to stand on. Remove piety, justice, and moderation, and what remains is the form of free government without the moral substance that gives it legitimacy.

Pennsylvania’s Constitution of 1776, Section 14 of the Declaration of Rights, mirrors the formulation: “A frequent recurrence to fundamental principles, and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty, and keep a government free.”¹¹¹¹ The phrase “absolutely necessary” appears across multiple state constitutions—Virginia, Massachusetts, Pennsylvania, North Carolina—because the founding generation understood virtue as constitutionally load-bearing—conditions of republican government’s possibility, each one carrying weight the institutional structure cannot do without.¹²

B. What These Provisions Load-Bear

These provisions have been dismissed in contemporary constitutional discourse as pre-scientific moralizing—hortatory language carrying no enforceable content, belonging to an era before the separation of law and morality was properly understood. The dismissal reveals the metaphysical premises it is meant to conceal. Constitutional law operating on utilitarian premises cannot recognize these provisions as load-bearing because utilitarian premises cannot, in principle, treat virtue as constitutionally necessary. If justice is aggregate utility, virtue is merely a proxy—one strategy among others for producing preferred outcomes, easily substituted when a more efficient mechanism is found.

On Thomistic premises, these provisions are precisely what they appear to be: acknowledgments that republican order has a prior condition that utility cannot supply. The founding generation was not naive about this condition’s fragility. The recurrence to fundamental principles they mandated—“frequent recurrence,” “constant adherence”—was a constitutional recognition that moral formation requires active institutional maintenance.¹³ Virtue does not persist automatically in a free society; it must be cultivated by institutions designed for the purpose. Dismantle those institutions, or redirect them toward utility-maximization, and the moral formation that republican order requires will erode.

The contemporary dismissal of these provisions as “merely aspirational” is itself a metaphysical claim: that constitutional law is a system of enforceable positive commands and nothing more, that its legitimacy derives from proper enactment rather than from conformity to the moral order it is designed to serve. On realist premises, this is the claim that law is whatever the sovereign will enacts—the parliamentary sovereignty doctrine that the founders explicitly rejected when they grounded the Declaration in “the Laws of Nature and of Nature’s God.”¹⁴ The aspiration/enforcement dichotomy is a utilitarian-positivist construction imposed retrospectively on a founding that did not accept it.

These provisions are load-bearing in the sense that their removal or displacement from constitutional practice removes the moral condition that the founding understood as prerequisite to republican legitimacy. A constitutional order that has abandoned frequent recurrence to fundamental principles and constant adherence to virtue has not merely lost an aspiration; it has lost its load-bearing condition and is operating on borrowed structural capital—the accumulated moral formation of prior generations whose own formation it is no longer capable of reproducing.¹⁵

IV.  The Utilitarian Severance

A. Bentham’s Reconceptualization

Jeremy Bentham’s Introduction to the Principles of Morals and Legislation (1789), published the same year the United States Constitution was ratified, articulated the utilitarian alternative with characteristic explicitness: “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do.”¹⁶  Beneath the empirical surface lies metaphysical claim: pleasure and pain are “sovereign masters”—the ultimate governors of practical reason—and whatever produces more pleasure than pain is, by that fact, what ought to be done.

Bentham, through figures such as John Austin, had a major impact; the consequences for Aquinas’s hierarchy were total. The bonum honestum disappears as a category—there is no good intrinsic to human nature that constrains what utility may demand. The bonum delectabile (pleasure/satisfaction) becomes the master standard. The bonum utile becomes the instrument of delectabile-maximization. Moral reasoning becomes a calculus: identify the option that maximizes net pleasure (later, in Mill’s refinement, “preference satisfaction” or “welfare”), and that option is just.

Bentham’s reconceptualization strikes the root of natural law reasoning, displacing its foundational premises through vulnerabilities imported by thinkers such as Locke. Natural law holds that human beings have a determinate nature with specific proper ends, knowable through reason, that constrain what law may command. Utilitarianism holds that human beings are pleasure-pain organisms whose preferences constitute the measure of what law ought to do. These are incompatible anthropologies. The first locates the standard of justice in objective human nature; the second locates it in subjective preference states. Contact between them without active anti-utilitarian formation produces contamination: the antirealist element absorbs the realist, which is the outcome incompatible elements always yield upon contact.¹⁷ A similar outcome to contact between realism and antirealism within a given institution or organization.

B. The Structural Consequence

The structural consequence of Bentham’s reconceptualization is that every constraint on utility maximization must now justify itself in utilitarian terms. Rights become “interest protections”—they are valid insofar as protecting the interest in question produces better aggregate outcomes than alternative arrangements. When a rights claim conflicts with a sufficiently large utility gain, the claim is in principle defeasible. The founding generation understood rights as ontological facts about human beings—constraints on what government may do regardless of the utilitarian calculus. The utilitarian framework treats rights as provisional accommodations to preference patterns—constraints on what government ought to do pending a sufficiently compelling calculation to the contrary.

Degree measures quantity within a shared category; kind marks a categorical divide. The founding framework places certain conclusions beyond the reach of utilitarian argument—the arithmetic is inapplicable to ontological facts about human nature, however accurately computed. The right to life is not defeasible by a sufficiently favorable utilitarian calculation; it constrains the calculation. The utilitarian framework has no mechanism for this constraint because it has no category for the bonum honestum—for goods that are genuinely intrinsic, genuinely prior to and independent of preference aggregation.

The consequence for constitutional order is that once utilitarian premises become operative, the constitution becomes a preference-aggregating instrument rather than a natural law guardian. Its text persists unchanged while its function inverts. “Equal protection” no longer means the protection owed to ontologically equal rational beings by the state that governs them; it means the outcome that best equalizes welfare across protected groups as measured by the current aggregation methodology. “Due process” no longer means the procedural protection owed to pre-political rights; it means the process that produces the best aggregate outcome for the parties involved. The vocabulary of the founding persists; the metaphysics of Bentham operates.

V.  Constitutional Capture: Balancing Tests and Their Metaphysics

A. From Standards to Calculus

The juridical expression of utilitarian capture is the balancing test. Modern constitutional doctrine applies balancing frameworks across vast swaths of constitutional law: intermediate scrutiny requires that a law be “substantially related” to an “important government interest”; rational basis review asks whether a law is “rationally related” to a “legitimate government interest”; proportionality review in administrative law and international human rights law weighs governmental purposes against the burdens imposed on protected interests. These frameworks share a common structure: the constitutional question becomes whether the utility gained (the government interest) outweighs the utility lost (the burden on the right).

The framework embeds the utilitarian premise that constitutional rights are interests subject to the scales, their force contingent on how the balance falls. Once a right enters the balancing analysis as one factor among others, it has already lost its ontological status as an intrinsic limit on governmental authority. The question is no longer whether the government has violated a right—a binary question whose answer either vindicates or condemns the governmental action—but whether the violation was proportionate—a calculation whose result depends on how the interests are measured and weighted.

Even strict scrutiny—the most protective standard in American constitutional doctrine—permits governmental infringement of fundamental rights when the government demonstrates a “compelling interest” achieved through “narrowly tailored” means. The framework acknowledges that fundamental rights can be overridden by sufficiently weighty governmental utility. On founding premises—rights as ontological facts grounded in human nature—this acknowledgment is a category error. A compelling interest cannot override a right that exists prior to and independent of governmental interests, any more than a compelling calculation can override a mathematical truth. The right constrains the calculation; the calculation does not override the right.

B. The Aufheben Mechanism in Constitutional Jurisprudence

Aufheben operates with particular precision in constitutional jurisprudence. The vocabulary of constitutional rights persists—speech, religion, equal protection, due process—while the metaphysical substrate has shifted from realist to utilitarian. Citizens and litigants continue to assert rights in the founding vocabulary; courts continue to adjudicate rights claims using the founding terminology; the Constitution’s text remains unchanged. But the operative question has transformed from “did the government violate this right?”—a question whose answer is determined by reference to the right’s natural law grounding—to “did the government’s utility outweigh the burden on this interest?”—a question whose answer is determined by preference aggregation.

Under realist premises, rights are stable: they mean what they mean because they are grounded in fixed human nature, and fixed human nature does not evolve with legislative preferences or judicial consensus. Under utilitarian premises, rights are dynamic: they mean what the prevailing aggregation methodology assigns, and that methodology evolves with political preference. A right that constrains popular will under realist premises becomes, under utilitarian premises, an expression of popular will through a particular institutional channel. The constitutional form persists; the constitutional substance transforms.

Justice Holmes articulated the utilitarian jurisprudential position with characteristic bluntness, dismissing natural law as mere subjective preference “determined largely by early associations and temperament, coupled with the desire to have an absolute guide.”¹⁸ The dismissal is self-refuting—it uses the fact that people disagree about natural law to conclude that natural law is merely preference, while employing this conclusion as though it were objective truth. But its institutional consequences were not self-refuting. Holmes’s legal realism, extended through Pound’s sociological jurisprudence and Llewellyn’s behavioral theory of adjudication, converted the utilitarian premise into operative constitutional doctrine.¹⁹ What courts actually do—weigh interests, assess proportionality, calibrate remedies to aggregate outcomes—replaced what courts are obligated to do: enforce the antecedent rights that governmental authority exists to protect.

VI.  Objections and Replies

A. “Utilitarianism Is Simply Common Sense—Pursue the Best Consequences.”

The objection conflates two distinct modes of practical reasoning. Common sense, in the tradition of Thomas Reid that the founding generation drew upon, is the faculty by which first principles are known directly—principles that “no sooner understood than they are believed.”²⁰ Among these first principles is the recognition that some things are intrinsically good, their goodness independent of any pleasurable state to which they conduce. The wrongness of torturing an innocent person for aggregate benefit is not overridden by favorable utilitarian arithmetic; it registers as self-evidently wrong, and that registration is evidence about moral reality—carrying the epistemic weight of a first principle, a datum the utilitarian calculus has no mechanism for processing. Utilitarianism is the philosophical theory that contradicts common sense at precisely the points where common sense is most reliable: the inviolability of persons, the moral reality of intrinsic goods, the existence of actions that remain wrong regardless of consequences.

B. “The Founding Era Used Consequentialist Reasoning Constantly.”

Consequentialist reasoning—reasoning that attends to likely outcomes—is not utilitarian reasoning. Aquinas’s own framework for the determinatio of positive law is consequentialist in the non-technical sense: prudential specification of how universal principles apply in particular circumstances requires attention to probable outcomes. Adams defended complex constitutional structures by reference to their effects on faction and republican stability. Madison argued in Federalist No. 10 that extended republic geography would dilute faction’s force. None of this constitutes utilitarian metaphysics.

Instrumental reasoning about means presupposes a prior ordering of ends; the founding generation inherited that ordering from natural law. Utilitarianism eliminates the prior ordering and substitutes the preference aggregation mechanism itself. Attending to consequences within a natural law framework is categorically different from treating consequence-aggregation as the measure of justice. This distinction is precisely what the determinatio doctrine preserves: prudential specification serves natural law universals; it does not replace them.²¹

C. “Embedding Virtue Requirements in Constitutional Law Is Coercive.”

All law is coercive—this is what distinguishes law from mere advice. Constitutional law enforces answers to metaphysical questions about human nature and the good; which answers it enforces is the only genuine question. A constitutional order that enforces utilitarian premises—that rights are interest-protections defeasible by aggregate utility, that the common good is the sum of satisfied preferences—enforces a particular metaphysical position through state power, including the position that the Thomistic account of intrinsic goods is merely one preference among others. The charge of coercion applies symmetrically or not at all.

The founding generation made their metaphysical commitments explicit and embedded them in constitutional text and state bills of rights.²² Contemporary utilitarian jurisprudence makes its metaphysical commitments invisible and enforces them through balancing tests that purport to be neutral. The founding method is more honest; the contemporary method is more effective precisely because its metaphysical premises remain invisible. Recovering constitutional order requires making those premises visible—naming the utilitarian inversion for what it is.

Conclusion

Utility is a tool. Tools serve ends; they do not constitute them. The chisel does not determine what the sculptor intends to create; it specifies how that intention is executed in marble. Utility calculates the efficient path between a given point of departure and a destination already determined by prior goods—the intrinsic goods that give utility its entire point. Elevate utility to telos, and what appears to be constitutional reasoning is calculation without destination: optimization in the service of whatever preferences the prevailing measurement mechanism happens to register.

The founding generation understood this. Virtue grounds republican legitimacy in Adams’s framework; the state bills of rights of Virginia, Massachusetts, and Pennsylvania made virtue a constitutional condition of free government, absolutely necessary—the constitutional condition without which the free government above collapses. Aquinas provided the philosophical framework that the founding generation’s natural law inheritance transmitted: the hierarchy of goods places the honestum above the utile, and the common good above the aggregate of preferences. Remove this hierarchy, and constitutional order loses its foundation.

What Bentham erected in the place of that foundation displaced it wholesale. The utilitarian reconceptualization of justice as aggregate welfare maximization eliminated the category of intrinsic goods—the bonum honestum—and with it the only standard capable of constraining what preference aggregation may demand. Rights became interests, constraints became factors, and the common good became the output of a calculation rather than the condition that makes calculation meaningful. The aufheben mechanism operated: the vocabulary of the Declaration and the Bill of Rights persisted while the metaphysical substance that gave them their founding meaning was negated.

Contemporary balancing tests are the institutional expression of utilitarian metaphysics. When courts weigh governmental interests against individual burdens and declare the balance just, they enforce the premise that justice is whatever the balance produces. When state bills of rights are dismissed as aspirational, constitutional interpreters enforce the premise that law is positive command and nothing more. These are metaphysical positions enforced through state power; their appearance of neutrality is itself a function of how thoroughly the founding metaphysics has been displaced.

Recovery requires restoring the founding hierarchy at each level: in philosophical formation, recovering the distinction between the honestum and the utile; in constitutional interpretation, recovering the founding understanding of rights as antecedent constraints whose force is prior to any balance the government may strike; in positive law, recovering the recognition that virtue is a constitutional condition. The state bills of rights require resurrection: modernization assumes continuity; these provisions have been declared aspirational, which is to say interred. The declaration that free government absolutely requires justice, moderation, temperance, and frugality is a constitutional claim about what republican order presupposes, and the failure to take it seriously is directly proportional to the failure of republican order observable in contemporary institutions.

Utility serves the common good. The common good grounds utility. This ordering—this hierarchy—bears the character of reality, accessible to reason in every era, and its recovery is the recovery of constitutional order’s capacity to serve genuine human flourishing; optimized preference satisfaction is what constitutional order produces when it has lost that capacity. Virtue, the common good, and intrinsic goods are the load-bearing elements of a republic whose constitutive documents presuppose them. Without them, what remains is the form of constitutional government and the substance of preference aggregation—the aufheben of the American founding carried to its completion.

1  American Epistemology Institute, Consent Conditions Legitimacy: Natural Law as the Ground of Political Obligation (Jan. 2026).

2  Thomas Aquinas, Summa Theologiae I-II, q.94, a.2 (Fathers of the English Dominican Province trans., Benziger Bros. 1920), .

3  Thomas Aquinas, Summa Theologiae I-II, q.90, a.2.

4  Thomas Aquinas, Summa Theologiae II-II, q.58, a.9.

5  Thomas Aquinas, Summa Theologiae I-II, q.95, a.2.

6  Thomas Aquinas, Summa Theologiae I-II, q.96, a.4.

7  John Adams, A Defence of the Constitutions of Government of the United States of America, Preface, at xii (1787).

8  Id. Adams’s constitutional theory is developed across three volumes (1787–1788). The preface to the first volume articulates the foundational claim that republics require not merely proper institutional machinery but the moral formation of citizens capable of perceiving genuine goods.

9  Va. Declaration of Rights § 15 (1776).

10  Mass. Const. pt. I, art. XVIII (1780).

11  Pa. Const. of 1776, Declaration of Rights § 14 (1776).

12  N.C. Declaration of Rights art. XXI (1776); see also Del. Declaration of Rights § 28 (1776) (requiring “frequent recurrence to fundamental principles”).

13  The formulaic consistency across multiple state constitutions—Virginia, Massachusetts, Pennsylvania, North Carolina, Delaware—demonstrates that virtue requirements were a standard feature of founding-era constitutionalism rather than the idiosyncrasy of any single drafter.

14  The Declaration of Independence para. 2 (U.S. 1776).

15  American Epistemology Institute, The Declaration’s Metaphysical Foundations: Aristotelian-Thomist Realism and the Architecture of American Liberty (Nov. 2025).

16  Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 1 (1789).

17  For AEI’s analysis of how antirealist premises contaminate realist institutions through the law of non-contradiction, see American Epistemology Institute, A Fixed Star or Shifting Sands: Reclaiming America’s Realist Foundations (June 2025).

18  Oliver Wendell Holmes, Jr., Natural Law, 32 Harv. L. Rev. 40, 40 (1918).

19  Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24 Harv. L. Rev. 591 (1911); Karl N. Llewellyn, A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431 (1930). For AEI’s analysis of legal realism as the jurisprudential expression of anti-realist metaphysics, see American Epistemology Institute, Consent Conditions Legitimacy (Jan. 2026).

20  Thomas Reid, Essays on the Intellectual Powers of Man, Essay VI, ch. 1 (1786), . Reid’s claim that first principles are “no sooner understood than they are believed” is his criterion for distinguishing genuine self-evident truths from learned conventions.

21  American Epistemology Institute, Natural Law vs. Positive Law: The Role of Determinatio in American Legal Authority (Sept. 2025).

22  American Epistemology Institute, The Declaration’s Metaphysical Foundations, supra note 15.