Legal Conservatives Now Want to Move Beyond Originalism

[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.

[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.

[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.

[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.

[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.

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

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.

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

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.

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

The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.”

Uh, this actually sounds like wokeness and stuff conservatives love to deride. Could easily be used to justify things like mask mandates (even outside of Covid using Scarlet's reasoning that they would still be justifiable as well as banning crowded non-socially distanced gatherings during flu season), banning hate speech in spite of the First Amendment, etc. Oh and I really doubt that the NRA and Second Amendment-hardliners are going to like this philosophy either.

Yes, vaccines are a traditional example of something this could be used to justify. Banning hate speech [blasphemy] is part of the appeal here though.

I'm not even necessarily sure Vermeule himself would object to the vaccines example, because he's extremely pro-administrative-state (unless he has the crankish tradcat moral objections, which is always possible). A bigger problem with this is that "health" and "safety" are manifestly not synonyms, even "updated" ones, of "justice" and "peace".

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

Any evidence for this ludicrous claim? Like any at all? Or are you just desperately trying to avoid grappling with the fact that your preferred party attracts a lot of fascists?

This is a prediction about the future, but let me explain my reasoning. Confidence in American institutions has been declining since the Watergate scandal, and the GOP has built a base centered on those Americans who feel most alienated from institutions -- initially, the religious right, but increasingly a majority of non-educated people in the country. There is absolutely no indication that the decline in trust -- which accelerated during the Trump Administration and the COVID crisis -- is going to stop anytime soon; if anything given a projected peak in higher-education enrollment in the US in 2026 we're likely to see it expand to more educated people (unless such a peak is pushed off, or higher education manages to radically reinvent themselves). People in the US have very low confidence in government to solve problems, to the point that -- per referendums -- well more than half of Americans are willing to cut spending, and cut/refrain from raising taxes on the wealthy, as a balm to the country's problems. The likeliest future President under age 75, per current polling, is a man best known for winning wide popularity by daring to basically not fight COVID.

If these trends continue, then ideological people who wish to use the power of the state to do anything -- like Vermeule -- will need to band together in a single force; in practice every actual thing a Republican Administration does (consider Trump's judicial appointments tending to disempower bureaucrats, or the more successful state government in the 2010s funneling money to barely-accountable charter schools with diverse religious/ideological backgrounds) takes us further from a place where the government is even theoretically able to carry out the sort of reforms Vermeule would want.

(An interesting tell here is that Vermeule/Ahmari/Vance many 'populists' have converted to Catholicism or Eastern Orthodoxy, which are quite high-church, but the only growing denomination in the US is 'non-denominational', or the practice of having lots of tiny churches and congregations all competing with one another for adherents on what is basically the open market. This is extremely non-hierarchical and very different from the vision that Vermeule has; there is religious conservatism and there is religious conservatism, and these are not at all on the same pages.)

As the Democrats probably move right in response to their Senate disadvantage and cast a wider net, it seems extremely natural that they would attract people like this; the Democratic Party is already full of people who want to enforce a universal morality!

(Also note that at the very extreme end, this is already happening: consider the most prominent American neo-Nazi denouncing 'libertarian ideology' and voting for Joe Biden. Something very similar goes for David Duke. I don't think this is a horseshoe theory thing -- ultimately, everyone who doesn't want the government to shrink will probably have to be in the same party. My guess is that this sort of thing will gradually trickle from literal neo-Nazis to, eventually, higher-class populists like Vermeule; it's been observed many times that sociologically these people sure seem much more like Democratic than Republican voters.)

There's a reversal of means and ends here (that is, admittedly, common to American political attitudes; the most "respectable" version is probably the habit of treating specific trade policies as moral imperatives in and of themselves rather than recognizing that free trade, protectionism, longer or shorter supply chains, etc. etc. etc. favor or disfavor particular sectors of, and thus particular visions for, society). It does actually matter what one wants the state to be empowered to do, not just how much of it. A grand pro-state coalition would collapse the instant it tried to actually legislate anything, with the possible exception of the much stronger greenhouse gas regulations that are going to be no-brainers real soon to everyone who doesn't think the Tenth Amendment is a suicide pact.

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

My guess for the immediate future (like, the 2020s) is that we will find increasing popular recognition of the reality of climate change and decreasing popular support for doing anything about it to be perfectly compatible.

(I think the general line 'we should not do anything about climate change because the free market can handle it more effectively' is already a pretty common one; this is the fundamental ideological vision behind Elon-Musk-ism, and particularly in 2022 you saw at least one campaign -- that of Jim Lamon in Arizona -- running on a platform of being a renewable energy tycoon and finding that the Freedom Caucus is very amenable to this. DeSantis himself, who's made support for conservation one of the cornerstones of his bipartisan appeal, as much as that exists, also often strikes a kind of similar note -- but has also bragged about the speed with which roads are built in Florida).

I'd be willing to concede that, especially if the IRA is as successful at reducing emissions as people are currently predicting, there will likely be more widespread support (both popular and elite) for "carrot" as opposed to "stick" approaches going forward. But I think preferring rewards for doing things right to punishment for doing things wrong is a broader and deeper feature of human psychology than really supports your point. Preferring reward to punishment might cause people to adopt anti-state views--indeed, it is almost by definition the MAIN thing that causes it among people who aren't interested in arcane ideologies--but it is too basic to result from them.

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

I suppose I genuinely have a hard time wrapping my head around "government action is bad" (or "government action is good," for that matter; I'm sure you've at least heard of those tiresome "socialism is when roads" left-liberals who reflexively vote for e.g. higher taxes regardless of what's being taxed or why) as terminal values. Both seem self-evidently insane, not least because, in any actionable definition of "government" or "the state" that doesn't rely on hyperideologized word salad, a sufficiently low level of government action yields a power vacuum that results in some other entity becoming the government/state. (This is what has happened in the backstory of Snow Crash, which I keep recommending you read; the book doesn't even present the resulting archipelago of I-can't-believe-it's-not-a-states as in all ways a bad thing.) I tend to think self-evidently insane terminal values will eventually implode or otherwise commit ideological suicide, as indeed has arguably happened to "government action is good" due to, well, the twentieth century.

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

Sorry, I'd forgotten the details of our prior conversations about Stephenson. He's an interesting guy, definitely one of the most nuanced thinkers in the broader technolibertarian intellectual sphere, and I really need to get around to reading Termination Shock.

I still think it's more than possible, even if you're correct that the wave of generalized anti-state sentiment is still building, that it crests later in the twenty-first century much as, again, pro-totalitarian sentiment crested (thank God) in the twentieth. This could be (again, assuming for the sake of argument that you're correct about the current state of play) because free-market solutions to climate change prove inadequate, or because whatever entities effect them become so powerful and so trusted that they supplant the state Mr. Lee's Greater Hong Kong-style, or some combination of both, but I'd be more surprised if some version if it didn't happen then if it did. I'd consider a friendly wager with you on this if we could set conditions we agreed on.