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Vermeule’s Latest

In his much-discussed Atlantic essay, Adrian Vermeule notes that originalism has become the dominant method of constitutional interpretation on the right. “When, in recent years, legal conservatism has won the upper hand in the Court and then in the judiciary generally, originalism was the natural coordinating point for a creed, something to which potential nominees could pledge fidelity.” He asserts, however, that originalism has “outlived its utility.” It is only a means of defending conservatives from judicial activism of the left, and now that legal conservatism has grown so strong within the courts it can be replaced with something more “robust.”

I noted in response that since, by Vermeule’s own account, originalism is rising in influence in the courts, its achievements may mostly lie in the future.

Vermeule has now answered his critics, albeit with the same coy evasion that marks so much of his work. (His comment ends, “This post is satirical,” which proves that it is not successfully so.) He refers to my criticism dismissively, suggesting that originalism has not achieved anything for conservatives and won’t achieve anything for them in the future.

You can maintain that originalism isn’t growing stronger, and so we have already seen as much in the way of results as we are ever going to see. Or you can maintain that it has been so successful that it is no longer needed. Neither thesis seems very plausible, but some academic can be found to defend nearly anything. To advance both propositions at the same time, though, is to move not just “beyond originalism” but beyond coherence.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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