Legal Conservatives Now Want to Move Beyond Originalism

[Frodo]

Beyond Originalism
The dominant conservative philosophy for interpreting the Constitution has served its purpose, and scholars ought to develop a more moral framework.

(...) But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. 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 approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.

Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself. Constraints on power are good only derivatively, insofar as they contribute to the common good; the emphasis should not be on liberty as an abstract object of quasi-religious devotion, but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.

Finally, unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

It's like the author had Fuzzy Bear in mind when he wrote this.    

[brucejoel99]

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.

[Starry Eyed Jagaloon]

Wow. This is horrifying. It's like if someone heard 3 Josh Hawley speeches and decided to use that as a basis for a new intellectual movement.

[Skill and Chance]

Vermeule has held these beliefs for 20+ years so he's not the best messenger.  However, there's a faction of the conservative legal movement that is getting increasingly tired of Gorsuch and this will only intensify if, as many expect, he provides the 5th vote for LGBTQ employment protections under the CRA.  That's what this is about. 

[Senator Incitatus]

Very good things ahead!

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Parts of this vision are boilerplate political Catholicism, with all that that implies for good as well as for ill, but sick formulae like "ensur[ing] that the ruler has the power needed to rule well", "a powerful presidency ruling over a powerful bureaucracy", and "the strong hand of legitimate rule" are pure power-worship for its own sake, slathered in pious and sacramental language like honey coating a fly trap. I did some googling and Vermuele is rightly getting savaged for this Falangist trash even in other corners of the conservative intellectual and media constellation.

[Antonio the Sixth]

I try very hard not to be the kind of leftist who sees fascists everywhere, but the specific concepts and turns of phrases you can read here are virtually indistinguishable from those you can find in the writings of actual, historical fascists.

Who the f**k is this crank and why in the name of all that is good and decent is The Atlantic publishing his deranged power fantasies?

[Okay, maybe Mike Johnson is a competent parliamentarian.]

Who the f**k is this crank and why in the name of all that is good and decent is The Atlantic publishing his deranged power fantasies?

He's a tenured professor at Harvard Law School, you see.

[Frodo]

I guess part of the reason I posted this was to pose the question on whether Attorney General Bill Barr should be considered an adherent of this new philosophy of common-good constitutionalism.  And if not him, then who do you think comes closest?

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I guess part of the reason I posted this was to pose the question on whether Attorney General Bill Barr should be considered an adherent of this new philosophy of common-good constitutionalism.

Inasmuch as Barr seems to have a genuine, principled belief in an unaccountable executive for some f**king reason and has on a few occasions tried halfheartedly to connect this belief to his religious commitments, absolutely he should. But he has far too tenuous a grasp on Catholic theology to be able to sink his hands into it and mutilate it the way a bona fide fascist intellectual like Vermuele can.

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Which is a very fair point, and think that confusion over original intent has helped to precipitate some of these divisions. I do think though that original meaning is, in general, the mainstream originalist doctrine, though. You are right to say that it is basically textualism applied to the Constitution, but I don't think that means it's not originalism. I think Scalia basically argued this pretty much explicitly from time to time, basically saying originalism and textualism were two sides of the same judicial philosophy.

[Skill and Chance]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Which is a very fair point, and think that confusion over original intent has helped to precipitate some of these divisions. I do think though that original meaning is, in general, the mainstream originalist doctrine, though. You are right to say that it is basically textualism applied to the Constitution, but I don't think that means it's not originalism. I think Scalia basically argued this pretty much explicitly from time to time, basically saying originalism and textualism were two sides of the same judicial philosophy.

I have always thought a natural law approach that errs toward the broad side rather than narrow was more consistent with the goal of the Bill of Rights and Reconstruction Amendments. 

I still oppose stuff like Lochner and Roe though. 

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

The problem with originalism as the strict constructionist subspecies of choice is that you really can't establish any one "original intent" of any legislative text since dozens or hundreds of people each had their own reasons for voting on it. How the meaning of the text would have been understood by the original audience after it was passed into law makes more sense as a question to ask, but I tend to look at that as a subspecies of textualism rather than of originalism.

Which is a very fair point, and think that confusion over original intent has helped to precipitate some of these divisions. I do think though that original meaning is, in general, the mainstream originalist doctrine, though. You are right to say that it is basically textualism applied to the Constitution, but I don't think that means it's not originalism. I think Scalia basically argued this pretty much explicitly from time to time, basically saying originalism and textualism were two sides of the same judicial philosophy.

I have always thought a natural law approach that errs toward the broad side rather than narrow was more consistent with the goal of the Bill of Rights and Reconstruction Amendments. 

I still oppose stuff like Lochner and Roe though. 

I think this is generally where many judicial conservatives will go if originalism is challenged, at least those who lean to the libertarian side. Generally I think we will see a greater focus on the divide between presumption of Constitutionality originalism (which I think you can see in more orthodox originalist scholars like Bork and Scalia) v presumption of liberty originalism (which is sort of unorthodox right now, but is most associated with Randy Barnett). Over time, I think conservative jurists who want to move away from originalism will either adopt a more moderate form of Vermeule's conservatism or a moderated natural rights approach, like the one you outlined.

[Fudotei]

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. if the right's going to decide to act from the "state of exception", I think that's the old phrase, they need to be very decisive and very quick about what to do with it. Vermeule's always given me bad vibes about just discussing his 'great revelation' and not knowing what to do with it. If he's trying to get some Roy Moore situation going on, be honest about it. Better to be fringe than to be mainstream and used against you

[Fuzzy Bear]

No, I'm not for this doctrine.  I dread to see the liberal version of this.  Besides, even among conservatives only, there is disagreement on what the "common good" is.

Originalism involves giving great weight to the Intent of the Framers, and that's the philosophy that provides the strongest foundation for the Rule of Law.  If people don't like what was framed, let them change it through the process.  The Framework was made difficult to change because the Framers knew what they were approving and foresaw things like this.

[Associate Justice PiT]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

     While the 9th Amendment is necessary as a catch-all to help protect against unforeseen things that are logically natural rights simply being dismissed on account of non-enumeration, the inherent risk is that people will read into it whatever they want to find in it. Given that the trend in recent decades has been towards a reformulation of originalism that many will see (and perhaps not incorrectly) as a weakening of its previous stance, I can see the desire for a reaction against originalism from the right.

[Brother Jonathan]

I don't know that this sort of thinking has really found it's way into the mainstream of legal conservative thought. That being said, many figures on the right have become more critical of Originalism as of late. George Will recently criticized it and advocated for the view that certain "natural rights" are inherently protected by the Constitution without being listed, and in a similar vein many libertarian conservatives have embraced the 9th Amendment as a magical rights making machine that protects everything they like, but not stuff they don't like view. I think this is sort of the social conservative response. Still, I don't know that we will see anyone with views this extreme in high judicial office any time soon. I hope originalism remains dominant among conservatives, but I do think the consensus is starting to break down, and there has been evidence of this for some time.

     While the 9th Amendment is necessary as a catch-all to help protect against unforeseen things that are logically natural rights simply being dismissed on account of non-enumeration, the inherent risk is that people will read into it whatever they want to find in it. Given that the trend in recent decades has been towards a reformulation of originalism that many will see (and perhaps not incorrectly) as a weakening of its previous stance, I can see the desire for a reaction against originalism from the right.

I agree that it is logical that the right is looking for an alternative to originalism, but I think it is simply because originalism requires them to reach decisions they sometimes dislike, as as the case for Scalia in Texas v. Johnson, or really even someone like Holmes in Lochner (though I wouldn't say Holmes was an originalist, but he made many arguments that originalists today use). 

[Okay, maybe Mike Johnson is a competent parliamentarian.]

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.

[Skill and Chance]

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.   

[Frodo]

For anyone interested:

Skip to 1:25. 

[Frodo]

With Federalist Society darling Justice Neil Gorsuch writing the majority opinion outlawing discrimination in the workplace on the basis of sexual orientation, and expanding the reach of the 1964 Civil Rights Act on a textualist basis, does anyone think this will provide the opening 'common-good' conservatives are looking for to make inroads with the conservative movement, especially among legal conservatives?  

[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.

[politicallefty]

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.