At Law & Liberty, John O. McGinnis: Adrian Vermeule: Unwitting New Originalist. From the introduction:
In The Atlantic, Adrian Vermeule, a professor at Harvard Law School, has argued that originalism has outlived its usefulness as a jurisprudence of the Right. In its place he argues for “common-good constitutionalism.” This jurisprudence would focus on strengthening a structure of governance that would foster adherence to moral norms and strengthen hierarchies, civic associations, and the family
Even for those, like me, who disagree profoundly with Vermeule, his essay usefully clarifies three important points that are often neglected in contemporary constitutional debate.
All three points are insightful. I like this point best:
First, Vermeule demonstrates that right-wing living constitutionalism is a live substitute for originalism. Thus, abandoning originalism opens the route to a right-wing results-oriented jurisprudence as much as a left-wing results-oriented jurisprudence. And that jurisprudence can be given a lovely slogan. It is hard to oppose the common good, at least at some level of generality, just as it is hard to oppose some of the mantras of living constitutionalism, like ever-expanding liberty or deepening democracy. But left-liberals are horrified by Vermeule because they quickly recognize that his slogan brings with it a lot of policies they find despicable. So do the slogans of left-wing living constitutionalism to anyone but the convinced left-liberals that dominate our universities. If anything, Vermeule’s essay brings into sharp relief what a progressive results-oriented jurisprudence is really about.
Citizens disagree about policy and even the content of what makes a good life. That’s why a constitution in a pluralist society should be limited to provisions that gain a supermajoritarian consensus. Vermeule’s essay should remind left-liberals that abandoning originalism permits judges to impose policies they will hate, should the “wrong” judges get in power.
From the point about New Originalism:
Second, Vermeule’s essay reveals the dangers of a large “construction zone” within originalism. One of the defining characteristics of the so-called new originalists is the centrality of the distinction between the zone of interpretation and the construction zone. When the original meaning is determinate, the content of a provision can be settled by interpretation. But when the original meaning of a constitutional provision is indeterminate, the content of the provision cannot fully be determined by interpretation. Instead, the law must be established in some other manner—such as an appeal to a normative theory—within what is called the construction zone. A version of common-good constitutionalism is one such normative theory.
…
To be sure, Vermeule has a strong normative view of how construction should proceed, but nothing about the new originalism precludes that view within the construction zone. Reading Vermeule in this manner underscores a problem for the new originalism. When the construction zone is large, there is little to distinguish new originalism from living constitutionalism. To be sure, all new originalists agree that when the meaning of a constitutional provision is clear (as when the Constitution assigns two senators to every state), there is no room for normative values to fill the construction zone. But living constitutionalists rarely believe that the Court can override such clear provisions either.
A large construction zone allows for a common-good gloss on the Constitution no less than a libertarian gloss. A large construction zone again makes constitutional law normative most of the way down, permitting the Constitution to be bent in a variety of political directions, including libertarianism and communitarian ones.
And finally:
Finally, Vermeule’s essay should also stimulate reflection on the many ways that the Constitution, when read according to its original legal meaning, permits the pursuit of the common good. …
But after this I'm going to try not to post any more on Professor Vermeule's essay.
Posted at 6:03 AM