« Lorianne Updike Toler & Robert Capodilupo: The Constraint of History
Michael Ramsey
| Main | Lawrence Lessig on the Privileges or Immunities Clause
Michael Ramsey »

08/19/2022

William Baude & Stephen Sachs on Adrian Vermeule's “Common Good Constitutionalism”
Michael Ramsey

William Baude (University of Chicago - Law School) and Stephen E. Sachs (Harvard Law School) have posted The "Common-Good" Manifesto (Harvard Law Review, forthcoming) (48 pages) on SSRN.  Here is the abstract:

In “Common Good Constitutionalism,” Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism.

That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to offer an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into conflict with theoretical rigor.

Adrian Vermeule responds here: The Bourbons of Jurisprudence.  Professors Baude and Sachs have a further response here.