At The Atlantic, Randy Barnett responds to Adrian Vermeule: Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution. From the introduction:
I like to tweak progressive non-originalists (or “living constitutionalists,” as they are sometimes called) by asking them to consider what will happen if they win the argument and persuade conservative judges to abandon their professed commitment to originalism. How will you feel, I ask, when they start using your preferred approach to reach the conservative results that they like?
Well, if conservative judges adopt the approach recommended by the Harvard law professor Adrian Vermeule, progressive living constitutionalists will be able to find out exactly how they feel. In a lengthy article for The Atlantic, “Beyond Originalism,” Vermeule urges conservative scholars and judges to abandon originalism, and, in its place, to develop what he calls common-good constitutionalism. “Such an approach,” he writes, “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.” He adds that this approach will give the government “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” (emphasis mine).
And from further along:
Vermeule views originalism, with its focus on the original meaning of the text of the written Constitution, to be an obstacle to this agenda. “It is now possible,” he observes, “to imagine a substantive moral constitutionalism that [is] not enslaved to the original meaning of the Constitution.” Indeed, Vermeule rejects textualism altogether: “Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them.”
This is nothing but conservative living constitutionalism. While the article is long on narrative, critique, and assertion, it is short on original theory and specifics. Instead, for his theory, Vermeule relies on “Ronald Dworkin, the legal scholar and philosopher” (and my jurisprudence professor when he visited Harvard Law School), who “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.”
And from the conclusion:
Vermeule’s article should put both conservatives and progressives on notice that the conservative living-constitutionalism virus has been loosed upon the body politic. But there’s time to take protective measures.
Progressives: Do you still want conservative judges to abandon their originalism for living constitutionalism? If not, “Originalism for thee but not for me” won’t cut it. To be taken seriously by them, you will need to bite the bullet and join the Originalist League. We have several teams you can play for.
Conservatives: After years of fending off attacks from your left flank, get ready to defend originalism from your right flank as well. Be prepared for conservative pushback against originalism. But rest assured that the underlying theory being asserted by Vermeule is nothing new. Until he presents an improved version, well-established criticisms continue to apply.
(Via Volokh Conspiracy, where Professor Barnett has further thoughts.)
RELATED: As Mike Rappaport notes, Professor Vermeule responds to his critics here (at Mirror of Justice).
Posted at 6:04 AM