At Judicature, a debate: Originalism Is Dead. Long Live Originalism, featuring Judge William Pryor (11th Circuit) and Conor Casey. Here is the introduction (footnotes omitted):
Has originalism run its course? Yes, says Harvard Law Professor Adrian Vermeule in Common Good Constitutionalism (Polity Press, 2022), which advocates for the book’s titular theory to replace it. In his view, originalism — the judicial interpretive mode that takes as its lodestar the intended meaning of the Constitution at the time it was written — “has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.”
Instead, he argues that “the central aim of the constitutional order is to promote good rule,” and that
“[c]onstraints on power are good only derivatively, insofar as they contribute to the common good.” Under this common good constitutionalism, the state has broad authority to “protect the populace” from a host of wrongs, including unjust market forces, corporate exploitation, and the selfish agenda of private rights. It “legislate[s] morality,” so to speak, without apology.
Professors William Baude and Stephen Sachs responded in a Harvard Law Review article, recognizing the theory as one that “must be taken seriously as an intellectual challenge” to originalism, but ultimately decrying it as “a work of ‘movement jurisprudence’ whose political aims come into conflict with theoretical rigor.” Others critiqued the theory as promoting living constitutionalism, an unknowable common good, and a pursuit that will produce “untoward results.”
The newly articulated theory of constitutional interpretation has caused waves in the halls of academia as well as in the courts: In the months following publication of Vermeule’s book, half a dozen cases had already cited the theory. We asked two scholars for their views: Professor Conor Casey, a lecturer in law at the School of Law and Social Justice at the University of Liverpool, and William H. Pryor Jr., chief judge of the United States Court of Appeals for the Eleventh Circuit. Their lively back-and-forth follows.
Here is one of the questions, on specific applications:
[Q] To take two recent cases, how might Dobbs and Bruen come out under common good constitutionalism? Are there other landmark cases you think would come out differently (or perhaps the same) using this approach?
CASEY: There is much to commend in Dobbs. But from the classical legal perspective, it failed to uproot one of the main problems at the heart of Roe v. Wade. Namely, the fact the Supreme Court did not recognize that law is for the sake of all persons, no matter how weak or vulnerable. Roe failed to ensure that the reasoned intentions of lawmakers expressed in posited legal texts were understood, insofar as possible, in favor of the most basic, fundamental, natural law right enjoyed by every person equally — the right to life.
In Dobbs, the justices missed a good opportunity to course correct, and to interpret the guarantees and reasoned intention behind the Fourteenth Amendment — which is both under-determinate and can be read at multiple levels of generality. They could have done so consistently with basic principles of the natural law that are always reasonable to consider part of our law, and a necessary feature of resolving hard cases in a morally sound way.
I would be stretching the bounds of my professional competence to get into the weeds of Bruen.
PRYOR: I am puzzled by Professor Casey’s response. He criticizes Dobbs because it did not interpret the Fourteenth Amendment “in favor of” the right to life. Perhaps he wanted the Court to declare that the unborn have a constitutional right to life. But the question presented in Dobbs was whether a Mississippi statute that prohibited abortions after 15 weeks was prohibited by the Constitution. The Dobbs Court answered that question in the negative. What exactly should a court applying the principles of living common goodism have done in Dobbs? Should the Court have ordered a criminal prosecution of abortionists beyond what Mississippi law provided? Should it have decreed a federal abortion ban in other states? Casey’s objection misunderstands the nature of the case, our Constitution, and our tradition. He does not explain why his principles required going so far beyond the question presented and the parties’ arguments.
As to Bruen, the answer from the main proponent of living common goodism is clear, even if Professor Casey himself is agnostic. Vermeule has criticized Heller and Bruen and maintains that all constitutional rights should be freely regulable by the political branches, subject only to “arbitrariness review.” And Casey’s view that “rights are not absolute but ordered to the common good and objective needs of society” suggests that he endorses the same framework. Judicial review of legislation affecting Second Amendment rights under that framework would never produce Bruen or Heller, despite “unqualified” constitutional text.
I continue to not understand how common good constitutionalism is anything other than a (sort of) right-wing version of living constitutionalism.
(Thanks to Josh Blackman for the pointer.)
Posted at 6:05 AM