In the era of social distancing, folks can get a little stir crazy. Everywhere you look, someone is touting the new hobby they’ve taken up because of the pandemic that they would never explore without the enforced, alienating solitude. Everyone’s out here baking bread, learning to knit, developing feelings about Tiger King, singing from their balconies, or writing long-form editorials about the importance of embracing authoritarianism.
Harvard Law’s Adrian Vermeule decided to take on the last hobby with a column in the Atlantic titled “Beyond Originalism,” where he pretty much argued for turning over the judicial system to a bargain-basement theocracy. And then… said he didn’t? Or something?
To untangle this, let’s begin with Vermeule’s original argument which begins by praising the work that the
empty signifier for contemporary conservative politics judicial philosophy known as “Originalism” has done to make aggressive right-wing legal principles palatable by framing them simply the understanding of that lionized generation of Constitutional Framers. But now, with the conservative stranglehold on the courts so complete that they’ve had to resort to nominating “not qualified” people just to fill all their vacancies, Vermeule believes “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-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy.” What exactly does that mean?
Well, part of it involves the need “to ensure that the ruler has the power needed to rule well,” a nod to authoritarianism more at home in Machiavelli than the Federalist Papers. And when it comes to defining what “well” means, you can see why progressive critics had some problems with all this:
The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
It’s not all bad. Vermeule also envisions an iron-fisted bureaucracy that might stand up for exploited workers, protect the environment, and make people get vaccinated. Still, there are better justifications for that, like maintaining a functioning economy, than asking our Philosopher King to protect the people as his — and this person is almost definitely a him in this article — children.
Meanwhile, conservatives were also up in arms about this. In trying to resuscitate Originalism’s usefulness as a check on “conservative living constitutionalism,” Professor Randy Barnett penned a response to Vermeule that helpfully distinguishes Vermeule’s core Catholic integralism as putting him on the outs with a lot of mainstream Originalism loving conservatives who can do without all of Catholicism’s baggage of “caring about poor people.” But basically Barnett’s criticism boils down to “liberals, be glad for Originalism or conservatives would really run wild.”
But the FedSoc doth protest too much. It’s not as though there’s any empirical evidence from the last 30 years of jurisprudence to suggest “Originalism” posed any check — beyond requiring judges to develop a proficiency in sophistry — on conservatives enforcing their contemporary political views and pawning it off as “Original.” If they had a problem with Vermeule’s vision of an authoritarian bureaucracy dominated by a powerful, moralizing chief executive they haven’t shown it in the decades of reverence they’ve showed Unitary Executive theory and its evangelists from Scalia to Kavanaugh. Tying that dog to the “Original” public meaning of the Constitution requires sociopathic levels of cognitive dissonance denial.
Vermeule cited the recent decisions asserting an individual right to bear arms as evidence that Originalism isn’t really tied to anything but contemporary politics and Barnett acts like this is a sign that Vermeule is out to lunch. If “Originalism” is really about the original public meaning of the Constitution, the best evidence we have about the original public meaning of these words is that, as president, George Washington marched an Army to go kick the hell out of some people who thought they had an individual right to bear arms and everybody seemed pretty cool with that reading of the Second Amendment at the time. I mean, this is an actual quote from a lauded Originalist gun opinion “While considering materials that post-date the Bill of Rights by at least 75 years might stretch the term ‘original public meaning’…” Oof.
Originalism is sloganeering. In fairness, it’s a pretty effective slogan. It’s a better than anything its rivals to its left have come up with. What it’s not though, is a meaningful check on “conservative living constitutionalism.”
This whole thing was weird enough and then the weekend happened. After a couple of days of getting ripped by left-leaning and right-leaning critics alike, Vermeule wrote a blog post that he flags as satirical except it’s… not funny or ironic?
First, I am happy to inform the left-liberal critics that the piece was never actually intended to make a Dworkinian argument for reading the Constitution in light of moral principles of the common good. Rather it was intended to make a Dworkinian argument for reading the Constitution in light of moral principles of equality and freedom, as specified by the programme of the American Civil Liberties Union. (Sadly unoriginal, I know; the legal literature is replete with that kind of scholarship). Somehow, a global search-and-replace occurred, and the phrase “Equality and Freedom” was everywhere replaced with “Common Good.” That change inadvertently transformed the piece from a banal effort, safely mainstream within the legal academy, into a menacing harbinger of fascism.
Why is this satire? Another conservative hot take is that Vermeule is trying to undermine the left’s adherence to Dworkin by coopting it for authoritarianism. But then… is the original piece satire?
Second, I am equally happy to inform the right-liberals that the piece was never intended to criticize originalism.
Is this satire then? He goes on to suggest that Originalists are just button pushers who will betray the moral fabric of the country by adhering blindly to the Constitution as if there’s some hand-wringing Originalist out there going all Warren Court because of what the Federalist Papers say.
Could this whole thing have just been a swipe — planted in the very opening paragraph of the first piece — at the line “We are all originalists now,” a phrase that no one seriously uses and that Elena Kagan probably regretted seconds after she let it slip from her mouth. Could this whole thing be Vermeule’s long con that liberals are coopting Originalism just as adeptly as conservatives could coopt his straw argument vision of living constitutionalism? And if that’s the whole point, then it’s not really satire, it’s an explicit call to more nakedly pursue right-wing ideology through the judiciary lest liberals someday win a battle for what “original” means?
In other news, Harvard Law students are joining the push for diploma-privilege admission. I’ve been sympathetic to this, but after this window into Harvard Law School’s faculty I’m going to have to step back and question the value of that diploma.
Now that is satire.
Beyond Originalism [The Atlantic]
A Series of Unfortunate Events [Mirror of Justice]
Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution [The Atlantic]
When conservatives interpret the Constitution like progressives [The Week]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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