Adrian Vermeule has posted a follow up to his Atlantic piece on common good constitutionalism that attempts to respond to his critics on the left and the right. It is an obviously satirical piece – although the satire has not been recognized by some readers – that makes some important points against his critics. In some ways, I find this post to be far more powerful than his original one, which is not all that surprising since criticisms are often more powerful than affirmative arguments for one’s own views.
First, Vermeule attacks his living constitutionalist critics on the left:
I am happy to inform the left-liberal critics that the piece was never actually intended to make a Dworkinian argument for reading the Constitution in light of moral principles of the common good. Rather it was intended to make a Dworkinian argument for reading the Constitution in light of moral principles of equality and freedom, as specified by the programme of the American Civil Liberties Union. (Sadly unoriginal, I know; the legal literature is replete with that kind of scholarship). Somehow, a global search-and-replace occurred, and the phrase “Equality and Freedom” was everywhere replaced with “Common Good.” That change inadvertently transformed the piece from a banal effort, safely mainstream within the legal academy, into a menacing harbinger of fascism.
That one hit the bullseye. Left liberals favor reading their own moral principles into the Constitution, but become horrified when nonliberals read in their own moral principles. That seems hard to justify.
Second, Vermeule attacks his originalist critics on the right:
I am equally happy to inform the right-liberals that the piece was never intended to criticize originalism. By some strange oversight, the piece also omitted my other intended argument — an originalist argument that the maximum ideological programme of the ACLU actually flows from the majestic general principles of Liberty set out in the Constitution's text and structure, and articulated in the ratification debates and the public legal culture of the founding era.
Now, the simpleminded moralist might puzzle over why this second point should be welcome to right-liberals. . . The constitutionalization of the ACLU programme should actually be celebrated by right-liberals as a demonstration of the strict neutrality of the originalist method. To be sure, right-liberal originalists might lament that the Constitution, so interpreted, would then contradict almost all of their professed views about the actual content of morality and justice. But that lament would be a moment of weakness, nothing more. The progressive transformation of the Constitution is a small price to pay for promoting the Rule of Law — rightly understood as an entirely contentless inflexible command, utterly divorced from the substance of the moral law, as we learned when Judge Bork taught us about the overriding importance of Neutral Principles.
Now that is a pretty powerful criticism of some versions of originalism as well. Some originalists write as if the rule of law is the only value and that it alone justifies originalism.
But that is not a strong argument against other versions of originalism. John McGinnis and I argue that one advantage of originalism is that it promotes clarity in the law (and therefore the rule of law) but that version is not important enough to justify originalism on its own. Instead, we argue that the Constitution (understood based on its original meaning) is a good Constition that limits government, protects rights, and promotes the common good. This Constitution would be judged good based not simply on a narrow ideology, but from a variety of perspectives (although not by every perspective). Randy Barnett and Akhil Amar also have arguments for originalism that have a similar structure.
Posted at 8:00 AM