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Adrian Vermeule: Unwitting New Originalist

In The Atlantic, Adrian Vermeule, a professor at Harvard Law School, has argued that originalism has outlived its usefulness as a jurisprudence of the Right. In its place he argues for “common-good constitutionalism.” This jurisprudence would focus on strengthening a structure of governance that would foster adherence to moral norms and strengthen hierarchies, civic associations, and the family

Even for those, like me, who disagree profoundly with Vermeule, his essay usefully clarifies three important points that are often neglected in contemporary constitutional debate.

First, Vermeule demonstrates that right-wing living constitutionalism is a live substitute for originalism. Thus, abandoning originalism opens the route to a right-wing results-oriented jurisprudence as much as a left-wing results-oriented jurisprudence. And that jurisprudence can be given a lovely slogan. It is hard to oppose the common good, at least at some level of generality, just as it is hard to oppose some of the mantras of living constitutionalism, like ever-expanding liberty or deepening democracy. But left-liberals are horrified by Vermeule because they quickly recognize that his slogan brings with it a lot of policies they find despicable. So do the slogans of left-wing living constitutionalism to anyone but the convinced left-liberals that dominate our universities. If anything, Vermeule’s essay brings into sharp relief what a progressive results-oriented jurisprudence is really about.

Citizens disagree about policy and even the content of what makes a good life. That’s why a constitution in a pluralist society should be limited to provisions that gain a supermajoritarian consensus. Vermeule’s essay should remind left-liberals that abandoning originalism permits judges to impose policies they will hate, should the “wrong” judges get in power.

Second, Vermeule’s essay reveals the dangers of a large “construction zone” within originalism. One of the defining characteristics of the so-called new originalists is the centrality of the distinction between the zone of interpretation and the construction zone. When the original meaning is determinate, the content of a provision can be settled by interpretation. But when the original meaning of a constitutional provision is indeterminate, the content of the provision cannot fully be determined by interpretation. Instead, the law must be established in some other manner—such as an appeal to a normative theory—within what is called the construction zone. A version of common-good constitutionalism is one such normative theory.

It is true that, at times, Vermeule suggests that he simply rejects the obligation to follow the text of the Constitution. For instance, he says, “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.” But at other times in his essay, he suggests that his concept of the common good can be read into the “ambiguities and majestic generalities of the written Constitution.” He uses the term “general welfare” as an example. While he derides the debates about originalist theory as “baroque,” here he is channeling a theoretical move of the new originalism. New originalists agree that when the constitution is ambiguous or vague (read “majestic generalities”), the implementer of the Constitution is free to construct constitutional law within these interstices.

Some young conservatives have become disenchanted with originalism because many originalists do not sufficiently emphasize the space the Constitution gives to pursue the common good.

Thus, should he so choose, Vermeule could fit a good deal of his theory of common-good constitutionalism into new originalism so long as it has a large construction zone. In his response to his new originalist critics of the essay, he satirically suggests as much.  

To be sure, Vermeule has a strong normative view of how construction should proceed, but nothing about the new originalism precludes that view within the construction zone. Reading Vermeule in this manner underscores a problem for the new originalism. When the construction zone is large, there is little to distinguish new originalism from living constitutionalism. To be sure, all new originalists agree that when the meaning of a constitutional provision is clear (as when the Constitution assigns two senators to every state), there is no room for normative values to fill the construction zone. But living constitutionalists rarely believe that the Court can override such clear provisions either.

A large construction zone allows for a common-good gloss on the Constitution no less than a libertarian gloss. A large construction zone again makes constitutional law normative most of the way down, permitting the Constitution to be bent in a variety of political directions, including libertarianism and communitarian ones.

The way to make new originalism clearly incompatible with Vermeule’s common-good constitutionalism is to show that the Constitution is not full of ambiguities and majestic generalities that can be used as vehicles for realizing the constitutional implementer’s peculiar normative vision. But most new originalists have trouble doing so for two reasons. First, they do not have a clear metric for deciding when the Constitution is clear enough to preclude construction. Secondly, they often eschew the precise legal meaning of the Constitution in favor of an ordinary meaning that is more likely to be ambiguous or vague. As Mike Rappaport and I show in a forthcoming article, “The Power of Interpretation: Minimizing the Construction Zone,” a clear metric for determining meaning (e.g. “always choose the better-supported meaning”) and the deployment of the Constitution’s relatively precise legal meaning substantially reduces the size of the construction zone and makes it difficult, if not impossible, for it to be bent to comprehensive external normative ends, including those pursued by Vermeule. Thus, Vermeule’s provocation itself reminds us that deciding among originalist theories is not a matter of choosing “baroque” details but getting the essence right.

Finally, Vermeule’s essay should also stimulate reflection on the many ways that the Constitution, when read according to its original legal meaning, permits the pursuit of the common good. This is politically important because, as Randy Barnett has noted, some young conservatives have become disenchanted with originalism. I believe that this is in some measure because many originalists do not sufficiently emphasize the space the Constitution gives to pursue the common good as most of them would understand it, even if does not permit the instantiation of Catholic integralism of the kind Vermeule might wish.

The original Constitution contained very few restrictions on the ability of the states to enact laws for whatever their legislatures thought to be the common good. Certainly there was nothing to prevent them from regulating sexual behavior and abortion or from generally trying to separate responsible freedom from the license that destroys communities—a position that Nelson Lund and I developed here.  

The Fourteenth Amendment added some important additional restrictions. But even if these Amendments included the incorporation of the Bills of Rights, they did not much constrain the states in matters of social policy important to conceptions of the common good, particularly if the rights are understood with the specificity with which they were fixed at the time of the Fourteenth Amendment.

To be sure, the constitutional authority to pursue such policies lies in the states, not the national government. As a result, citizens can leave states that have a vision of the common good differing from their own—something that may be anathema to an integralist, but acceptable to most social conservatives. The right of exit merely prevents the pursuit of the common good from becoming tyrannical. And if the vision of the common good that a state pursues is attractive, the same right of exit should benefit all who want to move there.

So those who want space for the states to be able to pursue the common good in many of the ways that Vermeule would like should be attracted to originalism and specifically to a version that rejects reading constitutional rights in the abstract when they are better read with specificity in their legal and historical context. (To be clear, I do not generally favor using state power in this way as a policy matter.) In any event, that strategy is surely more likely to be successful than pursuing common-good constitutionalism as an independent constitutional ideal. It took 40 years for originalism to fundamentally change the legal culture. It has adherents throughout the judiciary and in the academy. Vermeule’s version of common-good constitutionalism is confined to a party of one person, however clever and illuminating.

Reader Discussion

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on April 09, 2020 at 12:26:33 pm

I wish I, too, were a card-carrying, intellectual artisan in the cottage industry of high-minded academics who are paid to deploy the magic of "legal imagination." With that credentialed membership in the academic artisan's guild, with the financial security of an endowed law school chair and for the right amount of supplemental cash, using the power of my "legal imagination" I could concoct (and then publish in book or law review form but certainly not in the intellectually-atrophied Atlantic) a Rousseauean abstraction which would, with the meretricious gloss of legal imagination, both incentivize and rationalize the preternatural will of five Justices of the Supreme Court to surmount what I perceive to be constitutional impediments to individual liberty, to block what I perceive to be unwarranted government intrusions on individual liberty and to empower the government to pursue what I perceive to be the "common good."

Such products of the "legal imagination" are ubiquitous in our law schools nowadays. They are what Professor McGinnis in his essay has aptly termed "results-oriented jurisprudence" because "results," those "results" that are favored by the five Justices in control of the Court, are the goal of all non-originalist theory, from the anti-originalist organicism of Justice Brennan ("The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.''), to the pseudo-originalism of Justice Breyer (The constitution must be read not just in the terms of its specific language and narrow intent but also in light of what Breyer sees as its over-arching purpose, which Breyer sees is to provide for effective self-government,) to Justice Kennedy's distinctly non-originalist judicial mysticism ("At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."), to this latest Rousseauean abstraction from Professor Vermuele, which strikes me as a neocon's variation on Wilson's theme of a Progressive constitution, a living, breathing, not a mere mechanical constitution, but one fitted with the proper neurological, pulmonary and cardiovascular political principles.

All such wizardry of the "legal imagination" seeks to extend the founding work of Madison, Hamilton, Wilson and Marshall, a malediction which is best explained in the context of and sharply contrasted with the God's-work of Russell Kirk in explaining Burke's "moral imagination."

In "Reflections on the Revolution in France" Burke attacked the ideology, methods and goals of the Jacobins and other revolutionaries intent on destroying the institutions and traditions which Burke rightly considered to be indispensable to the preservation of a civilizing culture. In his polemic Burke coined the phrase "moral imagination" with these words: "All the decent drapery of life is to be rudely torn off. All the superadded ideas, furnished from the wardrobe of a moral imagination, which the heart owns, and the understanding ratifies, as necessary to cover the defects of our naked shivering nature, and to raise it to dignity in our own estimation, are to be exploded as a ridiculous, absurd, and antiquated fashion."

Nearly two centuries later, using these words, Russell Kirk popularized both Burke's phrase "moral imagination" and its meaning for politics and the soul : “The moral imagination aspires to the apprehending of right order in the soul and right order in the commonwealth.”

I declare that deployment of non-originalism or faux-originalism is the devil's work of "legal imagination" meddling in in our constitutional jurisprudence. It is a revolutionary strategy often intended to subvert, and always having the consequence of subverting, the ''moral imagination" in our culture.

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Paladin
on April 10, 2020 at 13:06:16 pm

Professor McGinnis, with all due respect,

JMJ

“Thus, Vermeule’s provocation itself reminds us that deciding among originalist theories is not a matter of choosing “baroque” details but getting the essence right.”

Professor Vermeule is correct https://churchlifejournal.nd.edu/articles/all-human-conflict-is-ultimately-theological/
He is in error, however, when he fails to recognize that it is not possible to have “Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost, thus the election of a man who sets himself against the Papacy, and thus against every other previous validly elected Pope, could not possibly be valid, for such an election, would deny The Unity Of The Holy Ghost, and would thus be anti Christ.

https://books.google.com/books/about/On_Heaven_and_Earth_Pope_Francis_on_Fait.html?id=2wNTDwAAQBAJ

“Whoever is against the Pope is, ipso facto, outside the Church.”

The erroneous notion that public morality and private morality can serve in opposition to one another and are not complementary, has led to grievous error in both Faith and reason, causing physical, psychological, emotional and spiritual harm.

“If there is a union of a private nature, there is neither a third party, nor is society affected.” Jorge Bergoglio, prior to his election as pope, denying that sin done in private is sin, while denying The Unity Of The Holy Ghost (Filioque), and thus denying Christ, His One, Holy, Catholic, And Apostolic Church, outside of which there is no Salvation, due to The Unity Of The Holy Ghost, and denying The Papacy, which affirms The Unity Of The Holy Ghost.
How can The election of a man to the Papacy, who denies The Sanctity of the marital act within The Sacrament of Holy Matrimony, and the fact that God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, Is The Author Of Love, Of Life, And Of Marriage, while denying sin done in private is sin, possibly be valid?

From The Catechism Of The Catholic Church:
II. THE DEFINITION OF SIN
“1849 Sin is an offense against reason, truth, and right conscience; it is failure in genuine love for God and neighbor caused by a perverse attachment to certain goods. It wounds the nature of man and injures human solidarity. It has been defined as "an utterance, a deed, or a desire contrary to the eternal law."121

1850 Sin is an offense against God: "Against you, you alone, have I sinned, and done that which is evil in your sight."122 Sin sets itself against God's love for us and turns our hearts away from it. Like the first sin, it is disobedience, a revolt against God through the will to become "like gods,"123 knowing and determining good and evil. Sin is thus "love of oneself even to contempt of God."124 In this proud self- exaltation, sin is diametrically opposed to the obedience of Jesus, which achieves our salvation.125
1851 It is precisely in the Passion, when the mercy of Christ is about to vanquish it, that sin most clearly manifests its violence and its many forms: unbelief, murderous hatred, shunning and mockery by the leaders and the people, Pilate's cowardice and the cruelty of the soldiers, Judas' betrayal - so bitter to Jesus, Peter's denial and the disciples' flight. However, at the very hour of darkness, the hour of the prince of this world,126 the sacrifice of Christ secretly becomes the source from which the forgiveness of our sins will pour forth inexhaustibly.”
It is a sin to accomodate an occasion of sin, and thus cooperate with evils .“

“It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost, “For It Is “Through Christ, With Christ, And In Christ, In The Unity Of The Holy Ghost”, that Holy Mother Church, outside of which, there is no Salvation, due to The Unity Of The Holy Ghost, exists.

In The Year Of The Holy Eucharist, have we forgotten God’s Eucharistic Prayer?

“20And not for them only do I pray, but for them also who through their word shall believe in me. 21That they all may be one, as thou, Father, in me, and I in thee; that they also may be one in us: that the world may believe that thou hast sent me.

22And the glory which thou hast given me, I have given to them: that, they may be one, as we also are one. 23I in them, and thou in me: that they may be made perfect in one: and the world may know that thou hast sent me and hast loved them, as thou hast also loved me. 24Father, I will that where I am, they also whom thou hast given me may be with me: that they may see my glory which thou hast given me, because thou hast loved me before the creation of the world.”

25Just Father, the world hath not known thee: but I have known thee. And these have known that thou hast sent me. 26And I have made known thy name to them and will make it known: that the love wherewith thou hast loved me may be in them, and I in them.

The essence of Divine Providence, Is Life-affirming and Life-sustaining Salvational Trinitarian Love, “For God So Loved us, that He Sent His Only Begotten Son...”

His Only Begotten Son, Who Revealed To us, Through His Life, His Passion, And His Death On The Cross, That No Greater Love Is There Than This,- To Desire Salvation For One’s Beloved.

The Sacrifice Of The Cross Is The Sacrifice Of The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost.

And although it is true that none of us alive today have yet to be Perfected In Christ, Through The Unity Of The Holy Ghost, during this hour of our Long Lent, In The Year Of The Holy Eucharist, let us Pray that we all draw near to His Very Essence, as we continue to desire to “Render onto Caesar what belongs to Caesar, and to God what belongs to God”, and let us Pray that we do not fail to recognizing that Divine Providence Has Affirmed, Christ The King.

“To one who has faith, no explanation is necessary. To one without faith, no explanation is possible.”

― St. Thomas Aquinas

https://churchlifejournal.nd.edu/articles/integralism-and-the-logic-of-the-cross/

“Hail The Cross, Our Only Hope!”

https://www.artic.edu/artworks/80084/the-crucifixion

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Nancy
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on April 12, 2020 at 16:35:34 pm

[…] to articles criticizing Adrian Vermeule’s attack on originalismJohn O. McGinnisDan McGlaughlinRandy E. BarnettPhoto credit: Wikipedia […]

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