Harvard 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 to tradition, legitimacy, and rules.
Who Decides? The essential argument of originalism is that the Constitution is a legitimate source of law because it was enacted by the people. It follows from this that changes to the law should be made by the people through the amendment process, rather than by unelected judges’ deciding what the law ought to be. Thus, whatever the Constitution was understood to mean when it was ratified by the people is what it continues to mean. This is the same way in which courts of law read statutes or contracts. Indeed, the “textualist” school of statutory interpretation, which considers the meaning of the statute’s words when they were written, is a longstanding and arguably even more successful project of many of the same conservative judges who promote originalism.
Comments