Harvard Law professor Adrian Vermeule has written an essay in The Atlantic that argues for doing away with originalism in favor of “a robust, substantively conservative approach to constitutional law and interpretation.” He calls this alternative approach “common-good constitutionalism,” the controlling principle of which is “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.”
More specifically, “Unions, guilds and crafts, cities and localities, and other solidaristic associations” and the traditional family “will benefit from the presumptive favor of the law.” Vermeule’s approach would do away with what he calls “the libertarian assumptions central to free-speech law and free-speech ideology” and to “property rights and economic rights.” It would “favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality.”
Where to begin? Well, part of Vermeule’s problem is the premise with which he begins — that originalism “has now outlived its utility.” During the 1970s and 1980s, he argues, that approach to constitutional interpretation “enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts” in a “hostile environment.” But “[t]he hostile environment that made originalism a useful rhetorical and political expedient is now gone.”
There are two problems with this, without even getting into the question of how much hostility toward conservatives endures today. First, no argument about constitutional interpretation should rest on its utility and political expediency. That is the stuff of results-oriented judging. Originalism is not about expediency, and expediency is no excuse for conjuring up alternative theories of interpretation.
Second, while Vermeule is correct that much of what crystallized under the label “originalism” in recent times was a reaction to the excesses of the Warren and Burger Courts, he is wrong to dismiss this approach to the Constitution as mere reaction to a particular era. Originalism did not begin with Robert Bork and Antonin Scalia. In his Commentaries on the Constitution of the United States, Justice Joseph Story asserted, “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties.” Further, “the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law.” A century later, Solicitor General (and future justice) Robert Jackson looked at “the terms of the Constitution” and “the historic experience of the Framers” in criticizing a line of cases that used the Due Process Clause to strike down state laws regulating business.
Originalism respects the straightforward command that federal courts adhere to the text of the very instrument that created them. That is common sense. Yet Vermeule admits the theory he advances under the “common-good” label “is not tethered to particular written instruments of civil law or the will of the legislators who created them.” It draws from tradition that includes “the law of nations” and “principles of objective natural morality.” This calls to mind some of the Supreme Court’s activist decisions selectively employing international law (e.g., Roper v. Simmons (2005)) and, as Vermeule admits, the argument of liberals like Ronald Dworkin that judges should read a set of moral commitments into the Constitution. But in this case, the use of these extraconstitutional sources would be conservative rather than liberal.
Vermeule also seems to come full circle with liberals who believe that the federal government should be permitted to do anything it wants in the amorphously defined public interest, except here with less protection of individual liberty. (Though unions, local governments, and “other solidaristic associations” would enjoy some level of protection, perhaps supplanting the individual.)
This paradigm disregards both federalism and the separation of powers, which is easy to do when the text of law and the will of elected legislators are not controlling. It would permit the spectacle of judges and an enlarged bureaucracy performing roles the Constitution assigns to other branches of the federal government or leaves to the states. The reality is that the structural Constitution, having proven to be essential to the preservation of liberty, prevents the oppression that comes with unchecked power, however much its agents preach the “common good” as their intention.
Instead of expecting courts to be instruments of policy preferences, those preferences should be pursued through the elected branches of government, with the courts applying the Constitution as a necessary backstop. That is how judges truly serve the common good.
Thirty years ago, Judge Bork wrote The Tempting of America, which championed originalism and illustrated the unfortunate politicization of the courts. That politicization occurred most brazenly in the service of left-liberalism. All these years later, the temptation remains. The pitfalls of straying from originalism are real, and they are not limited to liberals.