Problems With Vermeule, Part 6: Dworkin, the Level of Generality Problem, and the Fourteenth Amendment
Chris Green
(For parts 1, 2, 3, 4, and 5, see here and here and here and here and here.) The bulk of Vermeule’s attack on originalism is simply reliance on Ronald Dworkin’s 1990 response to Robert Bork’s Tempting of America, which Vermeule thinks “has never been successfully answered” (p. 95). Dworkin asked at what level of generality […]
Problems With Vermeule, Part 5: The Fourteenth Amendment, Lochner, and Harlan
Chris Green
(For parts 1, 2, 3, and 4, see here and here and here and here.) Vermeule discusses several particular constitutional issues in some detail. It is exasperating, however, how little attention he gives to our Constitution itself. I will focus on the area on which I have specialized—the Fourteenth Amendment—and leave his claims about the separation […]
Problems With Vermeule, Part 4: American Contingency and the Oath
Chris Green
(For parts 1, 2, and 3, see here and here and here.) To understand the nature of the American Constitution, we have to attend to particular ways in which our Constitution situates itself. For instance, the constitutional convention situated the Constitution spatially by using the phrase “the preceeding Constitution” to refer to the constitutional text. It […]
Problems With Vermeule, Part 3: Failure to Contend With American Contingencies
Chris Green
(For parts 1 and 2, see here and here.) Another big problem with Vermeule’s book is that it repeatedly equates originalism with positivism. E.g., page 15: originalism is “essentially a form of positivism.” But this is a mistake. Positivism is a theory about the nature of law, but originalism is a theory about the nature […]
Problems With Vermeule, Part 2: Vermeule’s Claim That Originalism is Self-Refuting
Chris Green
(For part 1, see here.) Vermeule makes six arguments for why originalism is self-refuting because the framers themselves were not originalists. Two of these arguments directly contradict each other, two are utterly devoid of historical support, and two are conceptually confused. Before we look at Vermeule’s arguments, though, it is important to remember why we […]
Problems With Vermeule, Part 1: Introduction
Chris Green
Adrian Vermeule’s new book, Common Good Constitutionalism, contains a number of attacks on the idea that the meaning expressed by the Constitution’s text in its original context is binding on officials today. He complains that we should not be “enslaved to the original meaning of the Constitution” (p. 36), but unlike modern progressives, he is […]
There Is Something That Our Constitution Just Is
Chris Green
I have posted my contribution with Evan Bernick to the upcoming Originalism Works-In-Progress Conference, There Is Something That Our Constitution Just Is (44 pages), to SSRN. Here is our abstract: Historian Jonathan Gienapp has launched a collection of widely celebrated attacks on originalism. He charges originalists with culpable neglect of the legal and political context […]
Does Originalism Alone Undermine Roe v. Wade?
Chris Green
A number of observers, notably long-time nonoriginalist Adrian Vermeule, have expressed some puzzlement (or perhaps delight at the opportunity for a reductio ad absurdum) at the idea that Jack Balkin might be an originalist despite arguing that the original meaning of the Fourteenth Amendment is consistent with the result in Roe v. Wade. However, it […]
Vermeule and the Sense-Reference Distinction
Chris Green
Last week, long-time non-originalist Adrian Vermeule entered again (see, e.g., here and here) into the constitutional-theory fray with A Euclid for Civil Liberties. Vermeule quotes the beginning of Justice Sutherland's classic 1926 distinction of meaning from application in Euclid v. Ambler Realty: "[W]hile the meaning of constitutional guaranties never varies, the scope of their application […]
What Has Athens to Do With Philadelphia?
Chris Green
I have posted What Has Athens to Do With Philadelphia?, part of a Faulkner Law Review symposium on Lee Strang's Originalism's Promise: A Natural Law Account of the Amertican Constitution, to SSRN. Here is the abstract: Lee Strang’s Originalism’s Promise: A Natural Law Account of the American Constitution gives a smooth, integrated account of all […]