Anton inspires confidence both that the Founding was guided by the resulting theory of justice, and that that theory should still guide us.
Adrian Vermeule, a chaired professor at Harvard Law School, recently wrote a much discussed piece attacking originalism and arguing for a nonoriginalist approach to constitutional interpretation. While Vermeule acknowledges the success of originalism, he claims it is now time to dispense with originalism and replace it with what he calls “common good constitutionalism”—a conservative nonoriginalist approach that is inspired by Catholic integralism. While one might view Vermeule’s essay as a problem for originalism, since it not only attacks originalism but also seeks to persuade conservatives of an alternative to originalism, there may be a silver lining here. If Vermeule were successful in persuading some people on the right to abandon originalism, he might increase the popularity of originalism on the left, which might even leave originalism in a stronger position.
Originalism as a Constraint on Judges
To see how Vermuele’s view could help originalism, consider a peculiar aspect of the debate over originalism. Originalists have a powerful argument for originalism based on the danger of unconstrained judges. Originalists argue that their approach is attractive because it limits the power of judges to impose their views on the public. By contrast, nonoriginalism gives judges broad discretion to rule based on their own values and therefore appears to be quite dangerous. Yet, this argument has had only limited success with progressive nonoriginalists.
Why has this argument not been more persuasive with progressives? Why don’t the progressives fear judges? In my view, the most likely reason is that progressives have tended to believe that the Suprme Court will be largely filled with people who support their views. If the judges are “your guys,” then there is no need to fear them. Instead, one should embrace and empower them. This assumption of progressives would explain why the originalist critique of unconstrained judges has not had more effect.
This explanation is even more powerful when one considers the current composition of the Supreme Court. If the Court is largely filled with only originalists and nonoriginalist progressives, it is hard to see the motivation for progressives to become originalists. After all, if the worst that can happen is a decision reached on originalist grounds, why adopt an approach that produces the worst you can get, rather than one that produces better results from a progressive perspective?
This analysis suggests that the best way of promoting originalism to progressives is to persuade them that they would benefit from originalism. One way to persuade progressives of the benefits of originalism under the current composition of the Court is by offering the progressives an (implicit) deal. Right-wing justices might say to the progressive justices: We will be originalist only if you progressives are also originalist. But if you are not originalist, we won’t be suckers. Instead, we will, like you, decide cases based on our values.
While that offer might provide improved incentives to progressives, it would be problematic in other ways. Most importantly, it would be hard for originalists to advocate originalism on a principled basis if they were willing to depart from it in order to improve the incentives of progressives.
Here is where Vermeule can be helpful. The politics that Vermeule proposes—a form of integralism that would free the government to tell people to behave in all sorts of nonliberal ways—would be regarded by progressives as extremely undesirable. Vermeule’s position is intended as an attack on liberalism that would move the country in a different direction. Progressives would find it scary. I’m not a progressive, and it scares me.
If there were a President who believed in Vermeule’s politics and who sought to appoint people with these views, that might change the perception of progressives. They might genuinely fear that result. They might, then, understand that nonoriginalist judges can be dangerous. And they might finally come to see that originalism provides a real benefit by constraining judges.
In that world, there would be three different positions: left-wing nonoriginalism, right-wing nonoriginalism, and originalism. In order to combat the greater threat of right-wing nonoriginalism, progressives might be willing to give up on left-wing nonoriginalism and turn to originalism.
Of course, embracing originalism is not the only response that progressives might make to conservative nonoriginalism. Instead, they might try even harder to take control of the courts. But progressives already have a strong incentive to take over the courts. If they cannot do that in a world with a right that is originalist, it is not clear that they could do that in a world with a right split between originalists and nonoriginalists.
Thus, in a world with both conservative originalism and nonoriginalism, there would be more reason for progressives to become originalists. But for progressives to move all the way to origialism, they would have to conclude that the benefits from reducing the threat of right-wing nonriginalism would be greater than costs of giving up progressive nonoriginalism. Whether that would be the case would turn on the circumstances.
Progressives might view originalism as even more attractive if they adopted what might be called progressive originalism. Under progressive originalism, judges tend to interpret the original meaning in a way that furthers progressive ideas. While this might seem like a fake originalism, it need not be. The original meaning of provisions is sometimes not clear and therefore can be give rise to disagreements even among good faith practitioners of originalism. It is no more surprising that progressives would more often reach progressive results in these cases than it is that conservative or libertarian originalists more often tend to reach conservative or libertarian results.
In the end, then, a movement like Vermeule’s right-wing nonoriginalism might lead to a significant change in the incentives for different parties to adopt originalism. In our present situation, progressives do not have a strong incentive to be originalists, but in a world where views like Vermeule’s came to be popular on the right, things might change. We might end up with two forms of originalism—a progressive form and a more right-wing form. While this disagreement between progressive and right-wing originalism might create issues, overall agreement on the abstract point that the courts should follow the original meaning would be likely to help delegitimize nonoriginalism. Thus, while a growth in the popularity of Vermeule’s position might hurt right-wing originalism, that growth might help to promote originalism on the left and could, on balance, even end up making originalism as a general movement stronger.