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Problems With Vermeule, Part 3: Failure to Contend With American Contingencies
Chris Green

(For parts 1 and 2, see here and here.)

Another big problem with Vermeule’s book is that it repeatedly equates originalism with positivism. E.g., page 15: originalism is “essentially a form of positivism.”  But this is a mistake. Positivism is a theory about the nature of law, but originalism is a theory about the nature of the American Constitution. These are very different sorts of objects of inquiry, because lots of countries have law though they lack a Constitution like ours.

Ronald Dworkin’s 1990 response to Robert Bork, on which Vermeule places extraordinarily heavy reliance in his book, makes clear that the issue over originalism is not over the general nature of the law, but over the nature of our American Constitution. Dworkin, of course, wrote a great deal about the nature of law, and the Hart-Dworkin debates are still a staple for those thinking about jurisprudence. But Dworkin never discusses positivism in his response to Bork. He notes the key issue at p. 659 of his review: “Bork subscribes to one answer to the question of what the Constitution is.” Dworkin, of course, does not like this view, noting the greater scholarly popularity of “law professors [who] believe that the Constitution is incomplete or open-ended,” or others who think (p. 660) “that the Constitution, properly understood, is not so much open-ended as structural,” or others (probably including Dworkin himself here) who “think the Constitution, on the best interpretation, is abstract: that it lays down general moral principles that contemporary lawyers, judges, and citizens must apply by finding the best answers to the moral questions these abstract principles pose.” Dworkin is absolutely right that the issue whether originalism is correct, and if so what form of originalism, is a question of American constitutional ontology, not jurisprudence: what renders American constitutional claims true, not the nature of law.

Article VI describes the Constitution, of course, as “law.” But the nature of the more general category—the genus—does not determine the nature of a species. The things that make us human beings are not the same things that make us mammals. The characteristics that made Napoleon a particular person—that made him Napoleon—were different from the characteristics that made him (for a time) the Emperor of France.

Understanding the nature of the American Constitution, which happens to still be in effect today, is not different in kind from understanding the nature of a defunct attempted constitution like the Confederate Constitution. We can understand the nature of the Confederate Constitution—what it means by the term “now,” for instance—without resolving whether it was that Constitution’s emphatic promotion of slavery (i.e., its ill fit with moral reality) or the South’s defeat (i.e., its ill fit with sociological reality) that render it not “law.” Confederate Article IV section 3 clause 3 requires protection of slavery “as it now exists,” and it is clear that “now” in that context means 1861. Similarly, our actual Constitution’s protection for the Northwest Ordinance in the limit of Article I section 9 clause 1 to states “now existing” makes clear that “now” in that context meant 1788. Both documents express meaning from the perspective of a very particular place in history. Discerning this fact doesn’t require jurisprudence at all.

Aquinas’s famous definition of law from the Summa Theologica—“an ordinance of reason for the common good, made by him who has care of the community, and promulgated”—is easy to reconcile with originalism, if we see the original meaning of our state and federal constitutions as the means by which those in America mark out exactly who it is who “has care of the community.” Aquinas recognized, in a way that Vermeule does not, that the methods for deciding who has care of the community will differ from jurisdiction to jurisdiction. In America, we use a written constitution that expresses its meaning at a particular point in time. When Ulpian was writing during the late Roman Empire it was of course different.

There are plenty of folks who are simultaneously fans of natural law and who also think that the Constitution’s original meaning is binding. Lee Strang, Jeffrey Pojanawski, Kevin Walsh, and I are all in their number. Vermeule argues at pp. 109 to 110 that he can dismiss our efforts to reconcile natural-law thought with the bindingness of original meaning if that attempted reconciliation would not “state a view different than [sic] the classical law” or offer anything that is “distinctively originalist in substance.” This is not a cogent objection. If devotees of natural law and traditional moral notions of the common good can simultaneously be committed to the original meaning of the Constitution, then such moral traditionalism offers no support for Vermeule and his followers’ rebellion against being “enslaved to the original meaning of the Constitution” (p. 36). If the natural-law tradition and originalism converge, Vermeule’s own project fails. Embracing such a convergence would require him to abandon anything distinctive about his approach.