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If Adrian Vermeule Didn’t Exist, Would Originalists Have to Invent Him?

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.

… the best way of promoting originalism to progressives is to persuade them that they would benefit from originalism.

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.

Nonoriginalist Conservatism

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.

Progressive Originalism

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.

Reader Discussion

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on May 01, 2020 at 11:06:20 am

“Why has this argument not been more persuasive with progressives?”

“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.”

Spot on.

In fact, in this moment of Time in Salvational History, when for the first time in Salvational History, the majority of Catholics believe we have two validly elected Popes, one, I suppose you could call “an originalist”, and one who is a “progressive”, despite the fact that one can know through both Faith and reason, that “Whoever is against the Pope is, ipso facto, outside the Church”, which means, in this moment of Time in Salvational History, when one pope, has certainly denied The Spirit and thus The Letter Of The Law, one can only assume that any Baptized Catholic, who desires to follow a schismatic pope, is either ignorant of the fact that every schismatic pope is “ipso facto” an anti pope and thus “ipso facto”, has set himself outside the Church, due to the denial of The Unity Of The Holy Ghost, or is a “progressive” catholic, who thinks The Truth Of Love can change with the winds of Time, and thus is willing to “ipso facto”, set himself/herself outside Christ”s One, Holy, Catholic, And Apostolic Church, because he/she, believes they, as a progressive, know better than Divine Providence, The Triune God, The Most Holy And Undivided Blessed Trinity, Through The Unity Of The Holy Ghost, what is Good, Beautiful, and True.

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Nancy
on May 01, 2020 at 11:09:41 am

"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."

This is to view things too abstractedly and in too calculated a fashion. Moral entropy is a large part of the underlying problem, this would add still more impetus and weight to that entropy. The moral and existential (i.e. not excessively abstracted) grounding or centeredness of the Constitution is in the Declaration. That ground and center, though it cannot be apprehended in a positivist manner, nonetheless can be appreciated for the gravity it affords. The difference here, in contrast to physical gravity, is that we, humble instruments though we be, are the ones tasked with maintaining that center and gravity.

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Michael Bond
on May 01, 2020 at 11:09:54 am

OK, Mike, I see your point BUT....
"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."

It ain't going to happen that they may "genuinely fear" a runaway *originalist* court. Aided and abetted by their Proggie friends / minions in the media, the academy and the intelligentsia they will proceed profoundly confident (and historically correct) understanding that they WILL prevail. When, may I ask, has it ever been otherwise during the past century? And while overconfidence can be a fatal flaw, this conceit of the Proggies would appear to be sustainable so long as the citizenry is unceasingly inundated with Proggie perspectives by the commentariat, academy and other ne'er do wells.
But it would be fun, wouldn't it?
Dueling Originalisms! = neither of which merits the term.

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gabe
on May 01, 2020 at 12:50:46 pm

Oh my! SimConstitution for Supreme Court Justices.
Game theory divorced from reality and without logic or statistics as a foundation.
Fantasy lacking the depth of legal science fiction.

Give me a break!
Vermeuele wrote for The Atlantic, yet the Left pays him "no never mind." Integralism is more talked about by the Right than espoused by anyone. Its minimal political credence is conferred by high-minded, profoundly faithful Christians, particularly Tridentine Mass Catholics and High Church conservatives. It is sad to say, but they are so desperate to save the constitution and to restore virtue as an article of cultural allegiance that they would unwittingly help the Left bury all hope of restoring the lost constitution and help the Left strengthen its amoral empire of government control.

An alliance of "originalists" with "living constitutionalists" using as a bargaining chip the fear of "common good constitutionalists" is not only a fantasy scenario, but it would be a great danger to constitutional conservatism. Originalism is objectively grounded in law and tethered to the constitution's text and meaning. "Common good constitutionalism" and "living constitutionalism" are untethered by legal objectivity; they are empowered by the subjective moral and political opinions of Justices.

I make no personal or political analogies when I point out that the Germans thought they could control Lenin, the Mensheviks thought they could control the Bolsheviks, Hindenburg thought he could control Hitler, the Weimar republicans thought they could co-opt him, the US allied with Communism to defeat Nazism and the Devil quotes Scripture.

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Paladin
on May 01, 2020 at 22:09:34 pm

Mike, In essence, Professor Vermeule, is not persuading people to abandon originalism, he is persuading people to return to our original Judeo-Christian Principles, beginning with Genesis.
In fact, it would not surprise me if Professor Vermeule would agree with Chesterton, that, “Christianity has not been tried and found wanting; It has been found difficult and not tried”. You are correct that while The Sacrifice Of The Cross, The Sacrifice Of Divine Providence, The Most a Holy And Undivided Blessed Trinity, Draws us in, we must choose to maintain that center and gravity that keeps us near.

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Nancy
on May 02, 2020 at 15:37:10 pm

Nancy, most of us by far on the center-right and right in general (I am conservative with strong classical liberal groundings) receive our own cultural and political impetus somewhere within the broad range of the Athens/Jerusalem nexus and divide. But we should not be seeking any truly theocratic formulation. (I emphasize "truly" to distinguish it from rhetoric and disinformation that unduly posits or charges us with theocratic interests.)

What should be left to suasion vs the coercion of positive law will always reflect a dialectical tension out of which an either/or decision will be necessitated, it can be no other way. But in the spirit of the most elemental tenets of classical liberalism we should err, in my view, on the side of suasion rather than the coercion of positive law. The left and the too far to the right crowd tends, strongly tends, to reverse that either/or prioritization. They do so, I believe, precisely because they are seeking to upend a properly understood conception of natural law and natural rights. That this reflects philosophical grist for the mill, replete with conundrum and paradox, is why we cannot and should not recline in a philosophical positivism, much less any theocratic pretension.

In terms of political/legislative interests the dialectic goes "all the way down". Failing to appreciate that reality will result in an overly extended form of positive law and the coercion that inheres to that writ.

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Michael Bond
on May 02, 2020 at 10:54:29 am

https://mirrorofjustice.blogs.com/mirrorofjustice/2020/05/the-rejection-and-unmasking-of-an-uncreated-order-of-values-together-with-management-technique-at-th.html

Mirror of Justice
Saturday, May 2, 2020
“In his essay, The Dead End of the Left: Augusto Del Noce’s Critique of Modern Politics, Carlo Lancelloti describes Del Noce's intervention into a debate between two well-known Catholic intellectuals of the time, one a representative of the "right" and another of the "left." Lancelloti includes an extended quotation from Del Noce, which I reproduce here not so much for the specific purposes that Del Noce or Lancelloti had in their writings, but because it arrestingly captures what has been happening at elite and not-so-elite universities in the United States for at least the last few decades:
If by “right” we mean faithfulness to the spirit of tradition, meaning the tradition that talks about an uncreated order of values, which are grasped though intellectual intuition and are independent of any arbitrary will, not even the divine one; and if by “left” we mean, on the contrary, the rejection not merely of certain historical superstructures but of those very values, which are “unmasked” to show their true nature as oppressive ideologies, imposed by the dominant classes in order to protect themselves, well, then it seems that in no other historical period has the left advanced so dramatically as during the last quarter of a century…. And yet, one has to say that Domenach is right: if by “right” we mean “management technique at the service of the strongest,” regardless of what ideologies are used to justify this management, we have to say that its victory has never been so complete, because it has been able to turn completely the culture of the left into its own tool.”

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Nancy
on May 03, 2020 at 15:38:57 pm

As a coda to my prior comment on Rappaport's strange notion that fear of common good originalism may convince "living constitution" devotees of the virtues of originalism, I would say that a far better path for originalists is to persuade "common good originalists" that originalists endorse the proposition that the constitution does not preclude consideration of morality and virtue as grounds for state legislation, that secularism is not neutrality in weighing the rational basis and constitutional validity of state laws which address morality and virtue and that a state law may have been informed by a religious consideration (as were the Declaration and our founding) does mean either that it infringes the Establishment Clause or that it lacks a rational basis. Such a morally-principled, virtue-friendly originalism would constitutionally advance the "common good" and establish some measure of common ground with "common good" originalists, who, it seems to me, are a more natural, more likely, more reliable and a stronger ally of originalists than the ideologues Rappaport would seek to entice.

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Paladin
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on May 04, 2020 at 13:09:15 pm

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