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04/30/2022

Law & Liberty Symposium on Vermeule's Common Good Constitutionalism
Michael Ramsey

Law & Liberty has posted a symposium on Adrian Vermeule's Common Good ConstitutionalismA Return to Classical Law? Here are the contributions:

Originalism for the Common Good
John O. McGinnis

A Common Good Requires a Common People
Jesse Merriam

Uncommonly Bad Constitutionalism
James M. Patterson

Policing Common Good Constitutionalism
James R. Rogers

Classical Historicism?
Paul Seaton

From the introduction to John McGinnis's contribution:

Adrian Vermeule’s Common Good Constitution is a bracing, bold, and well-written defense of what he calls common good constitutionalism, with a corresponding assault on originalism. But for all its audacity and creativity, Vermeule’s theory will remain a minority view on the right for years to come. The originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists. Moreover, the substantive results he favors—unlimited power in the federal legislature without any substantial restrictions on the administrative state—are indistinguishable from the left’s program for the structural constitution and remain anathema to the right.

This likely failure of common good constitutionalism is a good thing, because Vermeule is not persuasive. Ironically, to the extent that his theory affects the judicial landscape, it is likely to strengthen originalism by highlighting to the left the dangers of morally infused judging and by encouraging originalists to consider whether they have overlooked some background principles at work at the Founding that can help resolve constitutional ambiguity and vagueness within the framework of original meaning.

RELATED: Conor Casey (University of Liverpool School of Law & Social Justice) & Adrian Vermeule (Harvard Law School) have posted Argument By Slogan (Harvard Journal of Law & Public Policy: Per Curiam, forthcoming 2022) (19 pages) on SSRN.  Here is the abstract:

This short essay responds to several lectures and talks given by Chief Judge William Pryor Jr. of the United States Court of Appeals for the 11th Circuit critiquing common good constitutionalism. We demonstrate that the arguments advanced by Chief Judge Pryor in favor of originalism badly misfire, permit the very things Judge Pryor wants to rule out, and beg the critical questions about the classical tradition. In the end, they amount to little more than argument by slogan.