Constitution & Originalism: What Critics of Venerable Legal Philosophy Get Wrong

Harvard 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 a hostile environment.” And because it has now “outlived its utility,” we should embrace his alternative.

One can of course quibble with these implausible claims. It is simply not true that originalism was an invention of modern American movement conservatism; the theory’s roots go back centuries in our Anglo-American legal tradition. (To take just one of many, many historical examples, in the English case Millar v. Taylor (1769), Mr. Justice Willes was recorded as saying that, “The sense and meaning of an Act of Parliament must be collected from what it says when passed into law,” and not from extra-textual legislative sources.) But however one receives this canard, originalism’s origins clearly cannot form any basis to suppose that it is wrong on its merits.

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C'zar Bernstein

C'zar Bernstein is a writer who holds a J.D. from George Washington University and a BPhil from Oxford.

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Harvard 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 a hostile environment.” And because it has now “outlived its utility,” we should embrace his alternative.

One can of course quibble with these implausible claims. It is simply not true that originalism was an invention of modern American movement conservatism; the theory’s roots go back centuries in our Anglo-American legal tradition. (To take just one of many, many historical examples, in the English case Millar v. Taylor (1769), Mr. Justice Willes was recorded as saying that, “The sense and meaning of an Act of Parliament must be collected from what it says when passed into law,” and not from extra-textual legislative sources.) But however one receives this canard, originalism’s origins clearly cannot form any basis to suppose that it is wrong on its merits.