Andrew Hyman's post yesterday mentioned Adrian Vermeule's recent essay in The Atlantic, Beyond Originalism. Because of the essay's importance, I thought it would be worthwhile giving some additional excerpts.
Professor Vermeule argues:
[O]riginalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading “health” in many senses, not only literal and physical but also metaphorical and social.
…
[C]onservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.
Specifically, a proposal for "common good constitutionalism":
This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.
To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge “moral readings of the Constitution.” Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.
At A House Divided, Calvin TerBeek has this sharp response: The Maistre of Harvard Yard. From the core of the argument:
Adrian Vermeule has long occupied an unusual position within the conservative legal movement. Though a thorough-going conservative, this former Scalia clerk and administrative law professor at Harvard often made sport of “originalism” as a thin guise for standard-issue GOP legal policy goals. Vermeule styled himself a serious scholar and originalism, for him, wasn’t serious. And there he may have sat, pumping out law review articles on administrative law and Schmittian-inflected monographs on executive power. But after his high-profile conversion to a traditionalist Catholicism in 2016, Vermeule has transformed himself into a full-blown public intellectual, throwing punches at liberals and (in his view) benighted conservatives alike. Now, with his recent constitutional manifesto in the Atlantic, intentionally meant to cause a stir, Vermeule has very publicly upped the ante. Shoving “originalism” to the side (it has “outlived its utility”), Vermeule’s “Common-good constitutionalism” is a call for a Catholic integralist Constitution with “a powerful presidency ruling over a powerful bureaucracy.” In short, this is a Catholic authoritarian governing system enforcing its particularized vision of the “common good.”
And further:
The central cleavage is abortion. … With a five vote ideological majority on the Supreme Court now in hand and the lower courts well-stocked with young turks filled with constitutional certitude, for cultural conservatives [merely returning abortion to the states] is no longer good enough. Social conservatives have long paid public fealty to originalism, but their central political goal has always been to ban abortion—simply returning the politics of abortion to the states does not ensure complete success. Originalism’s focus on text and history left little room for a “right” to life based on constitutional language.
Fair enough. But Professor Vermeule's manifesto should send a message (and a warning) to commentators and scholars on the left. Originalism is, as I have argued here before, an intermediate position. The lack of a substantial element of conservative living constitutionalism in legal scholarship obscured this point and allowed center-left commentary to portray originalism as a right wing position. But Vermeule's "common good constitutionalism" — conservative social values that are as unconstrained by text and history as is the left's living constitutionalism — is the right wing position. Originalism constrains it, as it constrains other versions of living constitutionalism. So long as conservative living constitutionalism was not a realistic position, the left didn't see the value in this constraint. If Professor Vermeule's "manifesto" gains traction, perhaps they will begin to.
Posted at 6:09 AM