(via
MoJ)
The Atlantic:
Beyond Originalism by Adrian Vermeule
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.
Vermeule is a professor of constitutional law at Harvard? And he doesn't know that the Constitution is for the Federal Government and its powers are limited for a reason? Nor does he realize that the common good that is proper to the political community is not the same as the good of a federation because of the scale involved. In addition to being an integralist, Vermeule's a statist and a nationalist with respect to the Constitution. Those who disagree with him (I've included some reactions below), do so not because they disagree with the scope of power he is advocating for the Federal Government, but because of his favoring a confessional state or some other moral or religious principle. They would have a strong centralized government, so long as it promotes their ideology, and they too could talk about ruling for the common good as well,
it's just that they have a different (and erroneous, though in their minds they think it correct and humane) opinion about how that common good is achieved and preserved.
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. Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that is not “conservative” 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 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.
Let us do away with the pretense that the Constitution is even legally relevant with respect to preserving the order the Founders originally envisaged. That order disappeared a long time ago. What are we to do now? Do we do what we can to preserve observance of the moral law under the cover of the Constitution, interpreting it just so that for the sake of appearances, everything that is legislated is constitutional? Perhaps we would not disagree with this pragmatic approach so much, even if it involves a sort of "noble lie" or legal fiction that our observance of the Constitution is traditional. At least Vermeule admits that it is not. Our biggest disagreement remains - Vermeule looks to the central government as a solution; we look to decentralization and all that requires as the solution.
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 gentium—the law of nations or the “general law” common to all civilized legal systems—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.
Doess the Anglo-American tradition recognize the Natural Law? It may depend upon its adherents, but I would think that the tradition would acknowledge that the Natural Law is embodied in the Common Law tradition; otherwise individual laws that are unjust are also invalid, and would or should have been nullified. Nonetheless, so long as we live in the shell of a federation of (sovereign) states we are tied to the Constitution, until that is replaced or some other agreement between the states is reached. Vermeule needs to stop imaging what power is able to achieve and consider instead what the limits of power are, after he has spent some time living in a true political community. Until that happens, his opinion (and that of integralists in general) is irrelevant as it has no basis in a true experience of community. It is just another version of received dogma with respect to political life.
How, if at all, are these principles to be grounded in the constitutional text and in conventional legal sources? The sweeping generalities and famous ambiguities of our Constitution, an old and in places obscure document, afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, hierarchy, solidarity, and subsidiarity. The general-welfare clause, which gives Congress “power to … provide for the common Defence and general Welfare of the United States,” is an obvious place to ground principles of common-good constitutionalism (despite a liberal tradition of reading the clause in a cramped fashion), as is the Constitution’s preamble, with its references to general welfare and domestic tranquility, to the perfection of the union, and to justice. Constitutional words such as freedom and liberty need not be given libertarian readings; instead they can be read in light of a better conception of liberty as the natural human capacity to act in accordance with reasoned morality.
A "liberal tradition"? Perhaps some liberals wanted to restrict it. Maybe some oligarchs wanted to restrict it as well. But some originalists and paleoconservatives also wanted to restrict the reading of the general-welfare clause as well, because the Constitution enumerates the powers of the Federal Government, to which it is limited. Again, what sort of professor of constitutional law is this? One whose family background (his family name is Dutch) is tied to New England WASPs (Yankees), and a product of Harvard for both undergrad and law school. (A legacy admission? His mother was a member of the faculty for Radcliffe.) It's no wonder he is a Yankee Nationalist with respect to his understanding of the Constitution. He was also a clerk for Antonin Scalia -- was Scalia ignorant of the purpose and meaning of the Constitution as well, or were these lessons never given to his clerk, or never requested by his clerk? He converted to
Roman Catholicism in 2016, and that grace is not going to remedy any defects in his opinions about the Constitution.
Some reactions:
The New Republic:
The Emerging Right-Wing Vision of Constitutional Authoritarianism
No surprise here, Vermeule is receiving support from other Latin integralists: Adrian Vermeule’s Brilliant Essay on Common Good Constitutionalism
Even some "conservatives" are sympathetic to his argument:
A critique:
Rejecting Vermeule’s Right-Wing Dworkinian Vision by Lee Strang
NRO:
Adrian Vermeule's 'Common -Good Constitutionalism': No Alternative to Originalism
The Problem with Catholic Integralism in One Tweet By Andrew T. Walker
