At Law & Liberty, Lee Strang: Rejecting Vermeule’s Right-Wing Dworkinian Vision. From the introduction:
Professor Adrian Vermeule’s recent essay on originalism and the common good, “Beyond Originalism,” is thought-provoking in the best way. Professor Vermeule counsels American conservatives that “originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation,” one that he labels “common-good constitutionalism.” This admittedly Dworkinian approach would empower judges to “imagine a substantive moral constitutionalism” that they read into “the majestic generalities and ambiguities of the written Constitution.” They might further derive this moral constitutionalism from “the general structure of the constitutional order and. . . the nature and purposes of government.”
Professor Vermeule’s approach is one that a reasonable legal system could select to pursue the common good. But there is nothing in Professor Vermeule’s essay to suggest that it is the only reasonable approach to securing the common good. More importantly, there are sound reasons to believe that the United States, through its written Constitution, chose a different—also reasonable—approach to securing the common good, one that has the support of the natural law tradition in which inanimate (i.e., positive) law, explicated through technical means, is the most reasonable way to secure the common good. Originalism argues that the United States Constitution employs a system of inanimate, relatively determinate constitutional law to achieve the common good.
There are many potential criticisms of Professor Vermeule’s thesis; in this brief essay, I argue that the concept of the common good itself, at least as it has been pursued in the United States, contradicts Professor Vermeule’s core claim. In short, the common good of the United States, both as a matter of distributive justice (including what offices have legal authority to implement the Constitution and in what circumstances) and as a matter of the rule of law, requires following the Constitution’s original meaning, even when that meaning does not lead to normatively attractive outcomes in some (perhaps many) instances.
At Volokh Conspiracy, Keith Whittington: Common Good Constitutionalism? From the conclusion:
[W]hat's interesting is how [Vermeule] evaluates an approach to constitutional law. A constitutional philosophy has "utility" to the extent that it advances his policy objectives, and does not to the extent that it gets in the way of constructing the ideal policy regime.
Of course, this is an extremely familiar way of thinking about constitutional jurisprudence. It has been the dominant way that the political left has thought about constitutional jurisprudence for decades. It has had adherents on political right as well, but originalism as a philosophy of constitutional jurisprudence resisted those kinds of constitutional projects on both the left and the right and resisted that approach to justifying the exercise of judicial review.
Originalists would urge legal conservatives not to evaluate their approach to constitutional law by the standard of how well it facilitates their getting the policy outcomes that they want. As Vermeule recognizes, originalism is not the friend of results-oriented jurisprudence. Originalists made limited headway in trying to persuade those on the left that results-oriented jurisprudence was not the best path the country should be pursuing. Originalists might have to spend more time trying to persuade conservatives on that point as well.
Winter is coming.
And at NRO, Dan McLaughlin: ‘Common-Good Constitutionalism’ Is No Alternative to Originalism. From the core of the argument:
If the problems of Vermeule’s approach to constitutional law sound familiar, they should. Vermeule is undoubtedly right that “all legislation is necessarily founded on some substantive conception of morality,” but his vision of a state in which an unconstrained governing elite mandates its vision of the common good through the mechanism of law is the mainstream interpretive method of nearly all of the legal academy and Democrat-appointed judges. Although Vermeule differs from judicial progressives in the content of his values, he shares their devotion to a moralizing judiciary unconstrained by the people it rules. His cynical rejection of neutral principles of law makes him a neat fit with his left-wing Harvard Law faculty colleagues. And conservatives should oppose him for the same reasons we oppose them.
Indeed, it is not hard to find analogues to Vermeule on the other side of the partisan and ideological divide; if anything, it is hard to find people who are not analogous. That is precisely the problem. The entire notion of the “living constitution” was invented by Woodrow Wilson as justification for a “Darwinian” evolution of the fittest in society to govern everyone else. Like Vermeule, Wilson placed great faith in the elites of the administrative state to instruct their inferiors. Justice Stephen Breyer, hardly a marginal figure, wrote an entire book on how his vision of the common good should inform the Supreme Court’s reading of the Constitution.
And in conclusion:
What recommends originalism and the rule of written law is the same insight that recommends democracy, federalism, and free markets: They not only offer appealing results in the short run, but also offer a trustworthy process for reaching good results in future circumstances we cannot foresee.
Originalism has a long pedigree in American law, notwithstanding the fact that it was largely forgotten by the 1960s. That history gives it weight and force in our society, and should offer it the respect of those who value tradition. Alexander Hamilton argued that judicial review required strict fidelity to the constitution’s text. Abraham Lincoln was an originalist, and it is striking, if you re-read the debates over the Dred Scott decision, the extent to which all sides of the argument over whether black Americans could be citizens advanced their case in terms of what was understood at the time of the Founding. Vermeule may find Hamilton and Lincoln to be obsolete, but the structures they built have endured while the Catholic monarchies of their age have been swept away by stronger historical forces.
Vermeule … would trade the secure guarantee of written law for a pure contest of strength and will. And that is a contest conservatives should neither expect nor want to win.
Posted at 6:20 AM