Op-Ed

Conservatives have been rethinking their first principles in the aftermath of President Donald Trump’s 2016 victory. But that rethinking has not, until now, included a rethinking of legal conservatism.

Before Trump, conservatives had been debating whether they should seek “judicial restraint,” as they had been advocating for decades, or pursue a libertarian project of “judicial engagement,” which holds that both the posture and the rhetoric of restraint discounts the judicial duty to protect constitutional rights. That debate has continued largely unaltered over the last four years, as have subsidiary debates about specific legal issues. A key question for all sides has been which views are most compatible with the original meaning of the Constitution.

Adrian Vermeule, a professor at Harvard Law School who specializes in administrative law but writes often about a distinctively Catholic understanding of law and politics, thinks that it is time for the right to move past its obsession with “originalism.” Writing in the Atlantic, he sketches a new and very different legal philosophy, one that is arguably more in tune with political currents in the post-2016 Republican Party.

Many conservatives and libertarians have responded to his broad claims with fury and derision, as he must have known they would. Originalism, he claims, “has now outlived its utility” and should be replaced by an “illiberal legalism” that would facilitate a “powerful presidency ruling over a powerful bureaucracy.” It would not be bound by limits that impede rulers from promoting the “common good,” such as modern liberal conceptions of free speech and sexual liberty.

Instead of looking narrowly at the clauses of the Constitution to decide cases, it would promote the good rule that is the purpose of government – seeing the sweeping terms of the preamble as enough warrant for the exercise. Good rule, in Vermeule’s view, very much includes paternalistic policies: “Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.”

As that comment illustrates, Vermeule’s essay shows an impish delight in provoking and even repelling. It is not persuasive, and gives almost no sense of an obligation to try to be. Assertion follows assertion without any delay to consider obvious counterarguments.

In what sense, for example, is originalism no longer useful for conservatives? If Roe v. Wade is erased from constitutional law in the next 10 years — something Vermeule earnestly wishes — it will almost certainly be in large part because of justices who reject it because nothing in the text or original understanding of the Constitution authorizes it. Originalism’s biggest accomplishments may well lie in the future.

How does the coronavirus strengthen Vermeule’s case, as he claims? What powers does he wish the government to be able to use to fight the epidemic that it does not already have under both the contemporary and the originalist understandings of the Constitution?

He suggests that the Supreme Court should expand on its 1905 decision to uphold compulsory vaccination laws, a decision he describes as upholding a “common-good principle.” But that decision is explicitly grounded in the text of operative provisions of the Constitution, and explicitly rejects appeals to its spirit and its preamble. The Constitution, as originally understood, already gives government considerable authority to advance the common good while also structuring government in a way that guards against governmental attacks on the common good.

Vermeule’s essay succeeds magnificently, however, as a challenge to contemporary progressives (and, to a lesser extent, libertarians). Appalled as they are by what Vermeule wants, they should see their reflection in him.

Like him, they don’t think the original meaning of the Constitution should govern us now. Like him, they think of originalism as a cynical cover for conservatives’ pursuit of their political objectives (the difference being that Vermeule approves of some of those objectives). Like him, they think judges should take its seeming generalities as a license to rule according to a robust moral vision, albeit one that is very different from his. Vermeule pays explicit tribute to the liberal legal philosopher Ronald Dworkin and his celebrated “moral reading” of the law.

In effect, Vermeule is saying to progressives: If you want a moral reading of the Constitution, I’ll give you one. The more they consider the uses to which illiberals of the right could put non-originalism, the better originalism should look.