Harvard Law Professor Rejects Originalism
Adrian Vermeule, Constitutional Jurisprudence, Integralism, Originalism, The Law, US Constitution
Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School.
He looks cherubic and harmless, doesn’t he? Well, he rejects the framers’ goal of limited government, preferring the promotion of morality and “the common good.”
He expressed his new vision of illiberal Dworkianism in a recent editorial in the Atlantic, titled “Beyond Originalism.”
Originalism comes in several varieties (baroque debates about key theoretical ideas rage among its proponents), but their common core is the view that constitutional meaning was fixed at the time of the Constitutionâ€™s enactment. This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.
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 approachâ€”one might call it â€œcommon-good constitutionalismâ€â€”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-beingâ€”reading â€œhealthâ€ in many senses, not only literal and physical but also metaphorical and social.
Alternatives to originalism have always existed on the right, loosely defined. One is libertarian (or â€œclassical liberalâ€) constitutionalism, which emphasizes principles of individual freedom that are often in uneasy tension with the Constitutionâ€™s original meaning and the founding generationâ€™s norms. The founding era was hardly libertarian on a number of fronts that loom large today, such as freedom of speech and freedom of religion; consider that in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals. Another alternative is Burkean traditionalism, which tries to slow the pace of legal innovation. Here, too, the difference with originalism is clear, because originalism is sometimes revolutionary; consider the Courtâ€™s originalist opinion declaring a constitutional right to own guns, a startling break with the Courtâ€™s long-standing precedents.
These alternatives still have scattered adherents, but originalism has prevailed, mainly because it has met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture. The theory of originalism, initially developed in the 1970s and â€™80s, enjoyed its initial growth because it helped legal conservatives survive and even flourish in a hostile environment, all without fundamentally challenging the premises of the legal liberalism that dominated both the courts and the academy. It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself. When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.
But circumstances have now changed. The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the lawâ€™s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.
Assured of this, conservatives ought to turn their attention to developing new and more robust alternatives to both originalism and left-liberal constitutionalism. It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberalsâ€™ overarching sacramental narrative, the relentless expansion of individualistic autonomy. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not â€œconservativeâ€ at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.
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 workersâ€™ 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 â€œlegislate moralityâ€â€”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.
To be sure, some have attempted to ground an idea of the common good on an originalist understanding, taking advantage of the natural-rights orientation of the founding era. Yet that approach leaves originalism in ultimate control, hoping that the original understanding will happen to be morally appealing. I am talking about a different, more ambitious project, one that abandons the defensive crouch of originalism and that refuses any longer to play within the terms set by legal liberalism. Ronald Dworkin, the legal scholar and philosopher, used to urge â€œmoral readings of the Constitution.â€ Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkinâ€™s, which were of a conventionally left-liberal bent.
Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentiumâ€”the law of nations or the â€œgeneral lawâ€ common to all civilized legal systemsâ€”and principles of objective natural morality, including legal morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.
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 â€œprotect libertyâ€ 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.
The framers were, of course, conscious that the new Republic would be composed of thirteen colonies, founded at different times by different groups of people for different reasons with differing cultures, economies, and dominant religious denominations. They were living in a time in which the disastrous European Wars of Religion loomed large in memory, and they had drawn the rational conclusion that attempts by the State to control the conscience of the individual with regard to opinion and forms of conduct not impacting others were both tyrannical and futile.
Professor Vermuele thinks otherwise. Having ascended to an eminent position in the modern academical meritocratic order, he considers himself wiser than Madison, Jefferson, Washington, Franklin, and the other framers, and he obviously believes his own contemporary apprehension of morality and “the common good” is better than theirs, and superior as well to that of the 330 million other living Americans whom he is prepared to instruct and coerce.
Personally, I am no more interested in being ruled by Platonic Guardians of the Roman Catholic Integralist bent than I am by being ruled by bien pensant left-wing sophisters like the late Ronald Dworkin.