Legal Conservatives Now Want to Move Beyond Originalism

[Idaho Conservative]

Origionalism vs Textualism

[MarkD]

I will stick with originalism, and so long as Robert Bork's The Tempting of America remains on the bookshelves, the philosophy of originalism will remain influential with a lot of people, not to mention the many Supreme Court decisions that were based on originalist reasoning.

There do seem to be some different forms of originalism. While I do have strong textualist leanings, I would not consider myself an originalist. That said, there does seem to be a fairly diverse set of views based on originalist reasoning. For example, I think if they were on the same Court, Justices Black and Scalia would have diverged on many cases.

Most assuredly they would have disagreed on Bush v. Gore.

I don't think of Scalia as an Originalist, to be frank. Over 25 years ago when I read Scalia's concurring opinion in Cruzan v. Missouri Dept. of Health, (1990), and in particular when I saw what he said about the Equal Protection Clause of the 14th Amendment, I knew then he was not an Originalist. People have often said he was a Textualist instead of an Originalist. Or maybe, as implied in Wikipedia, he was a Textualist when interpreting congressional statutes but an Originalist when interpreting the U.S. Constitution, which would be an interesting twist.

Judge Bork never claimed that all Originalist judges would come to the same conclusions. The thing they all have in common is simply that they believe judges should always look to the original understanding of each and every clause of the Constitution when they construe those clauses and the Constitution generally. And Bork also argued that Originalists should be pragmatic about giving in to the needs of society when it comes to respecting precedents that were not based on Originalist reasoning. That does not mean there are "different forms of originalism."

[lfromnj]

https://elections-daily.com/2020/07/24/trump-nominates-adrian-vermeule-to-acus/

[brucejoel99]

https://elections-daily.com/2020/07/24/trump-nominates-adrian-vermeule-to-acus/

Not sure a hard-line theocratic fascist whose views are inimical to both the spirit & the letter of the Constitution (not to mention the views of those who fought the King's armies for the right to create it) has anything positive to add to the conversation about constraining the administrative state or American liberty in general, but... no, that's it, honestly.

This is a small but certainly ominous sign about the future of legal conservatism, given that more than a few White House officials probably had to sign off on this.

[The Mikado]

I thought that was a parody at first.

Vermeule would have been an excellent Chief Justice equivalent in Falangist Spain. Wrong place, wrong time, though.

(EDIT: In case that comment was a bit too dry, I'm saying Vermeule is a theocratic fascist and has no place in the American legal system)

[Frodo]

If conservatives and Republicans (the two go hand-in-hand) embrace Adrian Vermeule's illiberalism, by so doing they delegitimize themselves and take themselves out of the national conversation.  Their opponents on the left can then plausibly argue that those who will not defend the Constitution and the liberal Enlightenment ideals that it embodies cannot be depended upon to defend the republic whose legitimacy rests upon that Constitution.   

[KaiserDave]

An open fascist on the courts...


That's not scary

[lfromnj]

An open fascist on the courts...


That's not scary

Not the courts.  Mostly a 10 year advisory position.  No actual power.

[Frodo]

Cool, now the author of this article has written a book on this subject:  

Common Good Constitutionalism

[Vosem]

Cool, now the author of this article has written a book on this subject:  

Common Good Constitutionalism

Vermeule is a crank, and while I wouldn't say he has no influence (he's close to Hawley, for instance), he is very distant from and has had spats with the leadership of the Federalist Society who were largely recommending judges for Trump to nominate. (Vermeule and Hawley ran a big behind-the-scenes campaign against Neomi Rao, for instance, but all for naught). Randy Barnett, who runs Federalist Society educational programs and is one of the architects of their Washington strategy, particularly has it out for Vermeule.

So I really would not take Vermeule's positions on anything very seriously; he's a great example of someone promoted by a left-wing media apparatus because he reflects what they imagine their enemies to be, rather than what their enemies actually are. (Which isn't even to say mainstream legal conservatives don't have problems with originalism -- textualism is not actually very originalist! -- just that reading Vermeule is a very bad way of learning what legal conservatives think about anything).

[Person Man]

This sounds like Mussolini himself wrote it.

[Person Man]

Cool, now the author of this article has written a book on this subject:  

Common Good Constitutionalism

Vermeule is a crank, and while I wouldn't say he has no influence (he's close to Hawley, for instance), he is very distant from and has had spats with the leadership of the Federalist Society who were largely recommending judges for Trump to nominate. (Vermeule and Hawley ran a big behind-the-scenes campaign against Neomi Rao, for instance, but all for naught). Randy Barnett, who runs Federalist Society educational programs and is one of the architects of their Washington strategy, particularly has it out for Vermeule.

So I really would not take Vermeule's positions on anything very seriously; he's a great example of someone promoted by a left-wing media apparatus because he reflects what they imagine their enemies to be, rather than what their enemies actually are. (Which isn't even to say mainstream legal conservatives don't have problems with originalism -- textualism is not actually very originalist! -- just that reading Vermeule is a very bad way of learning what legal conservatives think about anything).

Because words now mean something different than when they were originally ratified. There is a difference between reading the constitution with a history book and with a modern dictionary. Of course the problem with that is its obviously not going to work. Even in antiquity, 250 years was a long time.

[World politics is up Schmitt creek]

Cool, now the author of this article has written a book on this subject: 

Common Good Constitutionalism

Vermeule is a crank, and while I wouldn't say he has no influence (he's close to Hawley, for instance), he is very distant from and has had spats with the leadership of the Federalist Society who were largely recommending judges for Trump to nominate. (Vermeule and Hawley ran a big behind-the-scenes campaign against Neomi Rao, for instance, but all for naught). Randy Barnett, who runs Federalist Society educational programs and is one of the architects of their Washington strategy, particularly has it out for Vermeule.

So I really would not take Vermeule's positions on anything very seriously; he's a great example of someone promoted by a left-wing media apparatus because he reflects what they imagine their enemies to be, rather than what their enemies actually are. (Which isn't even to say mainstream legal conservatives don't have problems with originalism -- textualism is not actually very originalist! -- just that reading Vermeule is a very bad way of learning what legal conservatives think about anything).

I normally think you're maybe seven or eight years behind the curve in your perception of where the Republican Party and American conservatism generally are at, but on this I entirely agree with you; Vermeule is not, right now, a mainstream figure, even though he teaches at Harvard Law, and you can see this by everything from, as you mention, the continued FedSoc preeminence in the field of training up right-wing jurists to the Vancean-Mandelian Twitter-troll way the good professor conducts himself online.

[Vosem]

Cool, now the author of this article has written a book on this subject: 

Common Good Constitutionalism

Vermeule is a crank, and while I wouldn't say he has no influence (he's close to Hawley, for instance), he is very distant from and has had spats with the leadership of the Federalist Society who were largely recommending judges for Trump to nominate. (Vermeule and Hawley ran a big behind-the-scenes campaign against Neomi Rao, for instance, but all for naught). Randy Barnett, who runs Federalist Society educational programs and is one of the architects of their Washington strategy, particularly has it out for Vermeule.

So I really would not take Vermeule's positions on anything very seriously; he's a great example of someone promoted by a left-wing media apparatus because he reflects what they imagine their enemies to be, rather than what their enemies actually are. (Which isn't even to say mainstream legal conservatives don't have problems with originalism -- textualism is not actually very originalist! -- just that reading Vermeule is a very bad way of learning what legal conservatives think about anything).

I normally think you're maybe seven or eight years behind the curve in your perception of where the Republican Party and American conservatism generally are at, but on this I entirely agree with you; Vermeule is not, right now, a mainstream figure, even though he teaches at Harvard Law, and you can see this by everything from, as you mention, the continued FedSoc preeminence in the field of training up right-wing jurists to the Vancean-Mandelian Twitter-troll way the good professor conducts himself online.

Teaching at a very elite law school was once a good proxy for being close to the mainstream of where legal conservatism is -- certainly it was in the 1980s -- but it hasn't been true for a very long time. It definitely is noticeable today that FedSoc chapters at the most elite law schools -- by this I basically mean Yale/Stanford/Harvard/not sure about anywhere else -- are much more populist (inclined towards religious conservatism and disinclined to engage in "taxation is theft"-style positions) than most elite conservative institutions, while the worse the law school the more likely it is that their FedSoc chapter is very libertarian.

My position on where American conservatism is basically comes from having close friends and acquaintances that have been employed by Republican primary campaigns in safe areas and watching primary debates occasionally and so forth; I've also read about historical campaigns to try to understand the changes over time. There was a big discontinuity in 2009, in my view, but I don't think there've been big chances in the way ordinary party members talk about real issues in the years since. (I'm aware that you disagree; I think part of this comes from you being located in the Northeast, which actually has a much less reflexively anti-spending/anti-governance Republican Party. It was notable that most of the Republicans who supported Biden's infrastructure plan were from NJ/PA/NY, for instance. The South/Midwest/Mountain West are not like this.)

This kind of means we're overdue for a shift, incidentally: recent history strongly suggests that the Republican Party makes a jump towards greater fiscal conservatism whenever a Democrat takes office. (Certainly such shifts happened in 2009, 1993, and 1977.) The prominence of inflation and loose fiscal policy in the discourse right now makes me think this is probably happening, though I guess I haven't noticed much altered rhetoric right now -- which was very obvious comparing summer 2010 to summer 2008, for instance -- although the Republicans trying to emphasize "populism", like Vance, are all conspicuously failing to get traction, which is something.

[Torie]

"In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have 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."

This bit is already settled jurisprudence. In times of an emergency, the executive has more power. Lincoln by executive fiat banned slavery in the states that seceded by executive fiat. Even FRD's decision to send American citizens guilty of no crime who happened to be of Japanese ancestry was upheld. The law is not a suicide pact.

What the guy misses, is that the more vague broad principles are used by SCOTUS to strike down or uphold laws and actions, the more SCOTUS is moving to itself both executive and legislative power. Be careful what you wish for.

[MarkD]

- snip -

- snip -
Because words now mean something different than when they were originally ratified. There is a difference between reading the constitution with a history book and with a modern dictionary. Of course the problem with that is its obviously not going to work. Even in antiquity, 250 years was a long time.

Please, please, if you're going to talk about the process of interpreting the Constitution in a manner like this, say it with more nuance and finesse than this. Which words in the Constitution have a different meaning today than they did 235 years ago?

In Article 1, Section 2 of the Constitution, it says that members of the House of Representatives must "have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall ..., when elected, be an Inhabitant of that State in which he shall be chosen." Representatives shall have a two-year term. In Section 3, it says that members of the Senate must "have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall ..., when elected, be an Inhabitant of that State for which he shall be chosen." Senators shall have a six-year term. In Article 2, it says that the President must be "a natural born Citizen, or a Citizen of the United States, ... have attained to the Age of thirty five years, and been fourteen Years a Resident within the United States." Presidents shall have a four-year term. Article 6: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, ..." Out of all of those words, which ones mean something different today than they did 235 years ago?

The 17th Amendment was adopted 109 years ago. Which words in that amendment mean something different today than they did 109 years ago? The 22nd Amendment was adopted 71 years ago. Which words in that amendment mean something different today than they did 71 years ago?

Various parts of the Constitution were written with enough clarity and precision that they are not open to different possible interpretations by different branches of government, nor different possible interpretations in different eras of our history. With many provisions, the words still mean today the exact same thing they meant when they were first adopted. OTOH, the context in which some of the words I described above might be different to different interpreters -- not different in terms of the era, but equally different to different interpreters then as now. For example, in referencing the Qualifications Clauses in Article 1, it is clear what the qualifications for members of Congress ARE, but are those sets of qualifications exhaustive? If they are exhaustive, are they just as exhaustive from the perspective of the state governments as they are from the perspective of the federal government? Over 50 years ago, the House deemed itself capable of disqualifying someone from sitting in their chamber because of that person's ethical lapses. They decided they do not have to let Representative Adam Clayton Powell Jr., take his respective seat in the House from NY district 18. In the lawsuit Powell v. McCormick, the SCOTUS disagreed with the House, and said, in so many words, that if the House thinks Powell did something unethical and unworthy of a member of the House, they still have to seat him and then, afterwards, vote to expel him. The SCOTUS interpreted the Qualification Clause in Article 1, Section 2, to mean that anyone who meets the three qualifications for service in the House, and who rightfully won election, cannot be disqualified for any reason that the House spontaneously makes up on the spot. Over 25 years later, the SCOTUS decided, by 5 to 4, that the Qualifications Clauses in Article 1 of the Constitution were exhaustive qualifications even from the perspective of the state governments; hence, no state can pass a law disqualifying someone from getting elected to Congress based on how long they had already been serving in Congress. In U.S. Term Limits Inc. v. Thornton, the Court struck down a state law fixing term limits on the members of Congress from that state. So what was clear from the words of the Qualifications Clauses was precisely what are the qualifications for members of Congress, but what was nowhere near as clear was whether or not those Clauses are exhaustive.

Be that as it may, not all provisions are written with the same degree of clarity and precision. "Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured." (John Hart Ely, Democracy and Distrust, published 1980, page 13.) First Amendment rights HAVE experienced a growth in their meaning that undoubtedly extend beyond what they meant 235 years ago -- rights such as freedom of speech, of the press, and the right of the people to peacefully assemble. Also in the First Amendment is the Establishment of Religion Clause, which has certainly experienced a number of problems regarding different possible interpretations (especially in the last 75 years). At the far end of what Ely called a spectrum of different constitutional provisions is the Equal Protection Clause, which I contend has experienced two different kinds of growth. One kind of growth, which I find completely acceptable, is linear growth, and the other kind, which I find completely unacceptable, is multilateral growth.

The linear growth I accept as legitimate is that the starting point of the meaning of the EPC is that it prohibits racially discriminatory laws and practices by state governments. That originally understood meaning has grown in such a way, over decades of case law development, that it now addresses specific subject areas that, 154 years ago, extremely few supporters of the 14th Amendment would have agreed that the clause addresses. That is, in 1868, extremely few supporters of adoption of the 14th would have agreed that they banned miscegenation laws, but 99 years later, the Supreme Court felt that, given the development of case law for the preceding 90 years or more, they had no other choice but to forbid miscegenation laws. (Hence, Loving v. Virginia.)

But the multilateral growth I have seen in constitutional law, which I do not accept as legitimate interpretations of the Equal Protection Clause, has occurred in the way the Court has expanded the meaning of that Clause so that it addresses other kinds of classifications besides race. First, the Supreme Court gradually - haphazardly - developed the so-called "rational-basis test" to handle all of the nonracial cases on its docket. This was a lenient and deferential legal standard (and FLIMSY, TOOTHLESS, SUPERFLUOUS) that rarely struck down any laws at all (at least, it was extremely rare before the 1920's). In 1915, the Court began to treat the EPC as if it addresses discrimination against noncitizens (although the Court's treatment of that issue was still a bit haphazard). In 1938, the meaning of the EPC was spread in such a way that it could be an attack on any legislation aimed at any other kind of xenophobia besides just racial prejudice: "prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. ..." Forty-two years after that, John Hart Ely observed, "During the Warren era, the Supreme Court was quite adventurous in expanding the set of suspect classifications beyond the core case of race. Laws classifying to the comparative disadvantage of aliens, persons of 'illegitimate' birth, even poor people, were all at one time or another approached as suspect." The Burger Court, during the 1970's addresses sex discrimination in a somewhat similar fashion too (although that Court slammed the door shut on the concept of treating "the poor" as a suspect class). Starting in 1996, the Court also began expanding the EPC to cover the subject of discrimination against gays, lesbians, and bisexuals (although the Court disingenuously avoided saying that there was any such an expansion). Expanding the meaning of the Equal Protection Clause in all these ways is what I call multilateral growth, and it's all unacceptable to me (even though I'm gay), because I'm extremely doubtful that most of the people of the late 1860's who supported the 14th Amendment would have wanted any and all of these expansions to occur.

This a way that I have to disagree with you, Person Man, about the part of what you said that I bolded. (And I do not comprehend what you meant by the next sentence, that I did not put in bold.)

[Person Man]

- snip -

- snip -
Because words now mean something different than when they were originally ratified. There is a difference between reading the constitution with a history book and with a modern dictionary. Of course the problem with that is its obviously not going to work. Even in antiquity, 250 years was a long time.

Please, please, if you're going to talk about the process of interpreting the Constitution in a manner like this, say it with more nuance and finesse than this. Which words in the Constitution have a different meaning today than they did 235 years ago?

In Article 1, Section 2 of the Constitution, it says that members of the House of Representatives must "have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall ..., when elected, be an Inhabitant of that State in which he shall be chosen." Representatives shall have a two-year term. In Section 3, it says that members of the Senate must "have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall ..., when elected, be an Inhabitant of that State for which he shall be chosen." Senators shall have a six-year term. In Article 2, it says that the President must be "a natural born Citizen, or a Citizen of the United States, ... have attained to the Age of thirty five years, and been fourteen Years a Resident within the United States." Presidents shall have a four-year term. Article 6: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution, ..." Out of all of those words, which ones mean something different today than they did 235 years ago?

The 17th Amendment was adopted 109 years ago. Which words in that amendment mean something different today than they did 109 years ago? The 22nd Amendment was adopted 71 years ago. Which words in that amendment mean something different today than they did 71 years ago?

Various parts of the Constitution were written with enough clarity and precision that they are not open to different possible interpretations by different branches of government, nor different possible interpretations in different eras of our history. With many provisions, the words still mean today the exact same thing they meant when they were first adopted. OTOH, the context in which some of the words I described above might be different to different interpreters -- not different in terms of the era, but equally different to different interpreters then as now. For example, in referencing the Qualifications Clauses in Article 1, it is clear what the qualifications for members of Congress ARE, but are those sets of qualifications exhaustive? If they are exhaustive, are they just as exhaustive from the perspective of the state governments as they are from the perspective of the federal government? Over 50 years ago, the House deemed itself capable of disqualifying someone from sitting in their chamber because of that person's ethical lapses. They decided they do not have to let Representative Adam Clayton Powell Jr., take his respective seat in the House from NY district 18. In the lawsuit Powell v. McCormick, the SCOTUS disagreed with the House, and said, in so many words, that if the House thinks Powell did something unethical and unworthy of a member of the House, they still have to seat him and then, afterwards, vote to expel him. The SCOTUS interpreted the Qualification Clause in Article 1, Section 2, to mean that anyone who meets the three qualifications for service in the House, and who rightfully won election, cannot be disqualified for any reason that the House spontaneously makes up on the spot. Over 25 years later, the SCOTUS decided, by 5 to 4, that the Qualifications Clauses in Article 1 of the Constitution were exhaustive qualifications even from the perspective of the state governments; hence, no state can pass a law disqualifying someone from getting elected to Congress based on how long they had already been serving in Congress. In U.S. Term Limits Inc. v. Thornton, the Court struck down a state law fixing term limits on the members of Congress from that state. So what was clear from the words of the Qualifications Clauses was precisely what are the qualifications for members of Congress, but what was nowhere near as clear was whether or not those Clauses are exhaustive.

Be that as it may, not all provisions are written with the same degree of clarity and precision. "Constitutional provisions exist on a spectrum ranging from the relatively specific to the extremely open-textured." (John Hart Ely, Democracy and Distrust, published 1980, page 13.) First Amendment rights HAVE experienced a growth in their meaning that undoubtedly extend beyond what they meant 235 years ago -- rights such as freedom of speech, of the press, and the right of the people to peacefully assemble. Also in the First Amendment is the Establishment of Religion Clause, which has certainly experienced a number of problems regarding different possible interpretations (especially in the last 75 years). At the far end of what Ely called a spectrum of different constitutional provisions is the Equal Protection Clause, which I contend has experienced two different kinds of growth. One kind of growth, which I find completely acceptable, is linear growth, and the other kind, which I find completely unacceptable, is multilateral growth.

The linear growth I accept as legitimate is that the starting point of the meaning of the EPC is that it prohibits racially discriminatory laws and practices by state governments. That originally understood meaning has grown in such a way, over decades of case law development, that it now addresses specific subject areas that, 154 years ago, extremely few supporters of the 14th Amendment would have agreed that the clause addresses. That is, in 1868, extremely few supporters of adoption of the 14th would have agreed that they banned miscegenation laws, but 99 years later, the Supreme Court felt that, given the development of case law for the preceding 90 years or more, they had no other choice but to forbid miscegenation laws. (Hence, Loving v. Virginia.)

But the multilateral growth I have seen in constitutional law, which I do not accept as legitimate interpretations of the Equal Protection Clause, has occurred in the way the Court has expanded the meaning of that Clause so that it addresses other kinds of classifications besides race. First, the Supreme Court gradually - haphazardly - developed the so-called "rational-basis test" to handle all of the nonracial cases on its docket. This was a lenient and deferential legal standard (and FLIMSY, TOOTHLESS, SUPERFLUOUS) that rarely struck down any laws at all (at least, it was extremely rare before the 1920's). In 1915, the Court began to treat the EPC as if it addresses discrimination against noncitizens (although the Court's treatment of that issue was still a bit haphazard). In 1938, the meaning of the EPC was spread in such a way that it could be an attack on any legislation aimed at any other kind of xenophobia besides just racial prejudice: "prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities. ..." Forty-two years after that, John Hart Ely observed, "During the Warren era, the Supreme Court was quite adventurous in expanding the set of suspect classifications beyond the core case of race. Laws classifying to the comparative disadvantage of aliens, persons of 'illegitimate' birth, even poor people, were all at one time or another approached as suspect." The Burger Court, during the 1970's addresses sex discrimination in a somewhat similar fashion too (although that Court slammed the door shut on the concept of treating "the poor" as a suspect class). Starting in 1996, the Court also began expanding the EPC to cover the subject of discrimination against gays, lesbians, and bisexuals (although the Court disingenuously avoided saying that there was any such an expansion). Expanding the meaning of the Equal Protection Clause in all these ways is what I call multilateral growth, and it's all unacceptable to me (even though I'm gay), because I'm extremely doubtful that most of the people of the late 1860's who supported the 14th Amendment would have wanted any and all of these expansions to occur.

This a way that I have to disagree with you, Person Man, about the part of what you said that I bolded. (And I do not comprehend what you meant by the next sentence, that I did not put in bold.)

You just described that second sentence. The EPC only meant equal protection for black people in 1868 and now there is a huge list of people who are either in a "suspect class" or "quasi-suspect class". I was also just saying that what was written 2000 years would mean something vastly different than its original meaning even 1800 years ago, when there were fewer people and culture generally changed at a much slower place. It was a way to emphasize my point to be taken for literal additional value on its own.

This is also what I was trying to say with the original sentence and you are right. The constitution provides very little wiggle room in some areas but much more in others but even if there is no wiggle room, there could of been an understanding above the four corners of the document by the original ratifiers. 


So there are two major ways that originalism and textualism differ- not only the changing of the language, but also what the actual motives of the various signers were. Of course a potential weakness of just relying on motives and intentions would potentially be that the original ratifiers were aware that there would be future people interpreting the constitution differently and perhaps they were OK with it. At least Thomas Jefferson aluded to the fact that every generation would have their own little internal constitutional revolutions.

[Frodo]

It looks like a new generation of conservatives are finding 'common-good constitutionalism' very appealing as a replacement for constitutional originalism:

https://twitter.com/DougJBalloon/status/1601329848118640641

[oldkyhome]

The emergence and development of bare-knuckle politics in the past couple decades is probably to blame for people wanting to move past principles and just use the state as a mechanism to achieve policy victories. This "common good conservatism" is a surprisingly hollow and transparent legal theory that exists to turn the Judiciary into a rubber-stamp for right-wing political ends.

[Southern Senator North Carolina Yankee]

Its kind of like the Presidency. Everyone on the right is a Whig until they take the Presidency and then they become either Andrew Jackson or Alexander Hamilton in short order.

Likewise with the judiciary, now that they have it, the urge is to use it.

It also strikes at the heart of what I have been saying for years in terms of historical analysis. It is less important in defining historical political orientation to examine "how" a group intends to do something, as opposed to what their end goal is (broadly defined) and who they are doing it for.

For my own view this kind of a shift is not an "abandonment of conservatism" but a tactical decision to trade in one set of tools for a different one, like one switches between a flat head and a Phillips head screw driver. A similar process that took place forty, seventy or one hundred years ago (depending on the topic in question), but it in reverse.

On a similar note, it speaks to level of contrived nature to the philosophical justifications for the tactical approaches (the how referenced above). As I have routinely stated, interests determine policy, and then the philosophical justifications are contrived afterwards. You can just as easily have conservativism manifest as establishment instead of populist, as big government instead of small government, as corporatist or anti-corporatist, and as lassiez-faire or interventionist economically speaking, depending on who the dominant force is within those entities and what their relation is to the socio-political scene.

[World politics is up Schmitt creek]

In theory it's not the worst thing in the world for judges to be more honest about the ideological and moral reasoning behind their decisions rather than claiming that whatever they happen to conclude is The Objective Meaning Of The Constitution; the veneer of objectivity is the most galling thing about a lot of terrible decisions that are supposedly originalist or textualist but in fact motivated by the desire to achieve right-wing political ends. However, there's a massive difference between being more honest about that and just wholeheartedly and baldfacedly saying that the Constitution says whatever you want it to say based on your own extraconstitutional moral or religious beliefs, which is what liberal judges did all too often in the heyday of "living constitutionalism" and is what Vermeule wants conservative judges to start doing more now.

[John Dule]

One of my friends sent me that Politico article earlier today. I've made my thoughts on Vermeule known before...

The admin law piece he co-wrote with Cass Sunstein was actually decent, though I figured that was because he had to moderate himself to work on a collaboration. His "Beyond Originalism" piece, however, ranks as one of the most insane ramblings I've ever read. The moment the words "natural law" come up in a theory class, you know to head for the hills.

... but it bears repeating. The man is a theocrat with no moral compass whatsoever.

[H.E. VOLODYMYR ZELENKSYY]

It looks like a new generation of conservatives are finding 'common-good constitutionalism' very appealing as a replacement for constitutional originalism:

https://twitter.com/DougJBalloon/status/1601329848118640641

Notable that James Ho was there. As implied by another attendee, he looks like the first man on the list for a DeSantis SCOTUS vacancy.

[Aurelius]

Vermeule is like a particularly loathsome mix of William F. Buckley & Mencius Moldbug, without even the business-savvy of Buckley or the ability to code & actually make a good argument of Yarvin.

Or he's just in the middle of a decade-long performance art piece designed to show how absurd the tenure system for legal academics is... I hope.

But yeah, this dude's employment at Harvard & The Atlantic's decision to publish him should be an absolute scandal. We have plenty of radical-right Christian websites providing a venue for this kind of bigoted insanity.

Buckley would hate Vermeule.

[Aurelius]

Vermeule really needs to ground his "common good" concept in actual Scripture or else he's just going to enable non-GOP policies -- M4A, GND -- which is really the opposite of what he's looking for from a partisan label.

Whatever the hell else Vermuele is ideologically, it really doesn't seem like he's a generic Buckleyite fusionist, so I wouldn't be shocked if he actually does favor more state involvement in things like health care and industrial/energy policy than you see with textualists/originalists.

Vermuele is very pro-administrative state and has been trying to warn conservatives off of their legal challenges to agency deference for years.   

Not surprised he's wrong on that, since he's wrong on literally everything else too.