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08/22/2020

John McGinnis on Adrian Vermeule on Originalism
Michael Ramsey

At Law& Liberty, John McGinnis: Originalism: More than a Presumption.  From the introduction:

Adrian Vermeule, constitutional originalism’s foremost opponent on the right, has again criticized the theory and its statutory kissing cousin, textualism. While he argues that positivism cannot provide a justification for originalism or textualism, he concedes that “substantive goods of political morality” might serve to provide textualism and originalism support. But, according to Vermeule, even such goods could justify only a “presumptive originalism.” Under presumptive originalism, interpreters should begin with a presumption of following the original meaning. But if originalism yields a very bad result as assessed by political morality, the original meaning of a provision should not be followed.

Vermeule’s concession may be larger than he realizes, because most modern theorists of originalism invoke substantive political goods to justify following original meaning. And once it is agreed that substantive goods can justify presumptive originalism, it should follow that they might justify originalism absolutely. Whether originalism should be followed presumptively or absolutely is a contingent question that depends on the nature of the goods that justify it and the capacity of other institutions—such as the amendment process—to realize substantive goods when an original interpretation does not capture them directly and immediately.

First, most defenders of originalism agree with Vermeule that originalism needs a justification outside the meaning of statutory or constitutional words, or even outside the practice of judges in following them: There must be some substantive political morality behind the choice to follow original meaning. Justice Antonin Scalia thought that originalism’s cardinal virtue was that it generated clear rules. Keith Whittington has argued that originalism respects the great political good of popular sovereignty. At this site, Ilan Wurman recently contended that “Originalism allows us to conserve [the] balance among the principles of our Founding: self-government, ordered liberty, and (at least since the ratification of the Fourteenth Amendment) equality under law.” Mike Rappaport and I have shown that originalism is justified by a procedural excellence: a constitution is likely to be good when made under the kind of consensus-making rules that characterize our own Constitution. No other structure is as likely to lead to good results.

While I am partial to our own theory as capturing the best justification for originalism, these overlapping goods, taken together, provide a very powerful justification of the kind that Vermeule demands. The consensus-making provisions contained popular sovereignty so that it would likely yield the best possible results. And, as befits a sound constitution-making process, these results generated political goods such as those praised by Ilan Wurman and Justice Scalia.

And in conclusion:

Vermeule concedes that his preference for common good constitutionalism over presumptive originalism is  “one of contingent judgment rather than of principle” He believes that presumptive originalism “might have been correct, so to speak, although it turns out not to be.” Thus, for Vermeule the debate must be conducted based on considerations of our circumstances, including human nature. But the preference for presumptive originalism over originalism tout court is similarly based on an assessment of our human circumstancesIn a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it.