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04/18/2020

James Ceaser on Adrian Vermeule's Constitution
Michael Ramsey

True, I promised no more responses to Vermeule, but I'm making an exception.

At Law & Liberty, James Ceaser (UVa -- politics): Adrian Vermeule’s Sixteenth-Century Constitutionalism.  From the introduction:

One might expect a conservative legal scholar to be a defender of the Constitution. Yet here, [Vermeule's Atlantic essay “Beyond Originalism”] would disappoint. Rather than be “enslaved to the original meaning of the Constitution,” Vermeule calls for “a different, more ambitious project,” a new doctrine that he solemnly baptizes as “common-good constitutionalism.”

Vermeule, in short, is an inveterate critic of the 1789 document. He rejects “the terms set by legal liberalism” and urges abandoning “the defensive crouch of originalism.” In its stead, he prescribes common-good constitutionalism to institute a form of government that opposes liberty as an end in itself and emphasizes strong rule that eagerly legislates morality, “a core and legitimate function of authority.” Moreover, his system would instill respect for “the authority of rule and rulers” and “the hierarchies needed for a society to function.”

And from later on:

[A] primary purpose of originalism is not to provide a full interpretation of the Constitution, but to prevent activist judges from imposing their own personal moral and ethical standards on the nation. Such choices, where law prescribes, should be determined by elected officials and/or by authorities in the different states. As the originalist Antonin Scalia pointed out in his dissent in the 2014 Obergefell decision, the five justices in the majority

Know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

Doesn’t Scalia’s originalism here allow for just the kind of moral principle that Vermeule supports?

From the conclusion:

Common-good constitutionalism expresses, as one would expect, Vermeule’s own views of the common good. Even so, he seems to ignore ways in which America’s form of rule, under certain jurisprudential theories, is supportive of some of the characteristics of reason-of-state theory. No doubt, a concern for rights has more weight in American constitutionalism than Vermeule finds in the 16th century, but he surely knows that the meaning of constitutionalism in the broadest sense is not exhausted by what is spelled out only in the written Constitution.

Many of the underlying ideas of constitutionalism are explained and elaborated in the debates and commentaries on the written document, such as in the Federalist Papers, where one will find accounts of justice (“Justice is the end of government. It is the end of civil society”), of defense and peace, of abundance or wealth, and of limitations as well as protections of rights. Vermeule should present these ideas so that we get a fuller account of our constitution, rather than the mistaken and ideologically driven interpretations of it. He might find much more to his liking than he thinks....