At NRO, Joel Alicea (Catholic): Why Originalism Is Consistent with Natural Law: A Reply to Critics (responding to criticism by Professors Casey & Vermeule of an earlier article by Professor Alicea). From the introduction:
Constitutional theorists on the right are engaged in a debate about the moral foundations of originalism, the theory that government officials, including judges, are bound by the original meaning of the Constitution. I recently offered a defense of originalism’s moral authority grounded in the natural-law tradition. Harvard law professor Adrian Vermeule and his sometime co-author, University of Liverpool law professor Conor Casey, recently responded to my draft article, as did another supporter of Vermeule’s theory, lawyer and blogger Pat Smith. In the interest of furthering this important discussion about the moral foundations of originalism, I respectfully offer this reply.
The background of this controversy can be briefly stated. Originalism has been the reigning constitutional theory of legal conservatives since the election of Ronald Reagan, but in a March 2020 essay in the Atlantic, Vermeule called on legal conservatives to “abandon[] the defensive crouch of originalism” and embrace “a substantive moral constitutionalism that [is] not enslaved to the original meaning of the Constitution.” This alternative theory, which Vermeule called “common good constitutionalism,” would “read into the majestic generalities and ambiguities of the written Constitution” “substantive moral principles that conduce to the common good.” Vermeule elaborated on his theory in his new book, Common Good Constitutionalism, in which he attempted to ground his theory in the natural-law tradition.
Shortly after Vermeule published his book, I posted online a draft article (forthcoming in the Notre Dame Law Review) that provides a natural-law justification for originalism and argues that Vermeule’s theory misunderstands the implications of the natural-law tradition for American constitutionalism. I argue that, under well-established natural-law principles, political authority — that is, the power to make and enforce laws and resolve legal disputes — is essential to secure those conditions that allow for human beings to flourish, conditions that we might call “the common good.” In the natural-law tradition, ultimate political authority is vested in the people of a society, and part of that authority is the power to constitute a government. Within the broad parameters of the natural law, the people have discretion in allocating authority within a regime to secure the common good, which the American people did by ratifying the Constitution.
My view (admittedly an oversimplified one) is that common good constitutionalism is no more than (but no less than) a center-right version of living constitutionalism. And (for originalism critics of the center-left): if you don't like originalism, this is the alternative. The alternative isn't judicial restraint or sudden conversion to center-left living constitutionalism.
Posted at 6:36 AM