‘Common-Good Constitutionalism’ Is No Alternative to Originalism

Supreme Court nominee Brett Kavanaugh holds his U.S. Constitution in Washington, D.C., September 6, 2018. (Alex Wroblewski/Reuters)
Harvard’s Adrian Vermeule would trade the security of written law for a might-makes-right contest that conservatives should neither expect nor want to win.

NRPLUS MEMBER ARTICLE H arvard Law professor Adrian Vermeule thinks conservatives should abandon originalism as a method of constitutional interpretation. His argument is such bad constitutional law that it is really neither constitutional nor law. It is terrible political and legal strategy. It is at odds with American constitutional history. It reflects the worst impulses of the Right in the Trump era to ape the most illiberal and corrosive habits of the Left. It would not produce the good society Vermeule envisions. And in a final irony, given Vermeule’s desire to effect something like a traditional-Catholic theocracy, it would promote a distinctly un-Catholic approach

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