Originalism and the ‘Oath Theory’

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What critics of the venerable legal philosophy get wrong.

NRPLUS MEMBER ARTICLE H arvard Law professor Adrian Vermeule thinks that we should abandon originalism in favor of what he calls “common-good constitutionalism.” What one will not find in the instantly controversial essay where he makes his case is any rigorous argument against originalism’s substantive claims. Instead, Vermeule offers various sociological and historical claims about originalism that are supposed to show the venerable legal theory is no longer needed, as though conservatives’ embrace of it was always utilitarian rather than principled. To hear him tell it, originalism was “initially developed in the 1970s and ‘80s” to help “legal conservatives survive and even flourish in

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