Originalism

Common Good Constitutionalism?

|The Volokh Conspiracy |

There is much to be said about Adrian Vermeule's provocative new essay, "Beyond Originalism." In some ways, it taps into some real movements on the right. It envisions a world in which President Donald Trump has helped remake American politics that opens the way for a reformulated and revitalized conservative politics. It appeals to the desire of some on the religious right to use politics to reaffirm and reestablish an older social order. It hearkens back to an era before the election of Ronald Reagan when there were many different conservative camps "imagining a constitutional restoration" and originalism was not conservative orthodoxy. It embraces big-government conservatism and rejects any vestigial influence of small-government libertarianism.

The conservative movement and the Republican Party have sometimes been useful vehicles for marginally advancing, or at least preserving, classical liberal principles, but Vermeule's version of post-Trump conservatism and GOP would put an end to that.

But for the moment, I just want to note Vermeule's interesting opening to the essay. He says, originalism

served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward.

But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.

Vermeule was never an originalist, and so it is no surprise that he would be happy to see it displaced. It is not obvious that he ever thought originalism served any useful purposes for his own particular political and jurisprudential commitments. He is not dropping the mask on originalism or even the conservative legal movement. He is hoping to reconstitute the conservative legal movement on entirely different principles, and he hopes that political coalitions and the intellectual landscape are shifting enough to make that possible.

But what's interesting is how he evaluates an approach to constitutional law. A constitutional philosophy has "utility" to the extent that it advances his policy objectives, and does not to the extent that it gets in the way of constructing the ideal policy regime.

Of course, this is an extremely familiar way of thinking about constitutional jurisprudence. It has been the dominant way that the political left has thought about constitutional jurisprudence for decades. It has had adherents on political right as well, but originalism as a philosophy of constitutional jurisprudence resisted those kinds of constitutional projects on both the left and the right and resisted that approach to justifying the exercise of judicial review.

Originalists would urge legal conservatives not to evaluate their approach to constitutional law by the standard of how well it facilitates their getting the policy outcomes that they want. As Vermeule recognizes, originalism is not the friend of results-oriented jurisprudence. Originalists made limited headway in trying to persuade those on the left that results-oriented jurisprudence was not the best path the country should be pursuing. Originalists might have to spend more time trying to persuade conservatives on that point as well.

Winter is coming.

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  1. What it really exposes is the fallacy of limited government. Bureaucracies always expand; private bureaucracies have consequences and go out of business, while government cannot except by revolution or invasion.

    Vermeule is just another statist, wanting to force people to hew to his way.

    1. I too find Vermeule’s article frightening, or I would if his views had any chance of being manifested in our government.

      This is serious nutjob stuff.

      1. There is no kook quite like the religious kook.

        Unless it’s a gun nut.

        Plenty of overlap, not suprisingly.

    2. You think most liberals are statists, though, right? Because this guy is very much not a liberal.

      1. Interesting insight into you, not me. Statists come in all stripes. I don’t claim that all politicians are statists, since I don’t know all politicians. But all the ones I have heard of are statists.

        1. So I’m right.
          Statist is just a term you use for almost everyone.

          1. Every organization of any kind will eventually be captured by those who serve the organization for it’s own sake rather then serving the mission of the organization.

            Governments are not immune to this.

            There are almost no successful politicians in the US that don’t fall into the category of serving the government for it’s own sake rather than serving the original mission of the government.

            1. Every institution, not just organization. Markets are not immune to this – see those who worship GDP or the Dow for it’s own sake these days.
              That’s why hybrids are the best – set these impulses against one another. Either well-regulated markets, or internal markets set up to accomplish some policy task.

              If you think all politicians in America have loyalty to the status quo, you’re not paying attention to either side of the aisle.

              1. Markets are resistant to this, so long as they don’t have access to the coercive power of the state, because if they prioritize the organization over the mission of the organization, they go out of business; The mission IS the business.

                1. I disagree, of course.

                  Look at CEO’s who eat out their company and then leave.
                  Look at the people here who talk about the Dow Average like we exist to serve it.
                  Look at the philosophy of some libertarians for whom the market equals freedom equals an axiomatic good.
                  Look at all the examples throughout history of hucksters, grifters, and poisonous externalities that thrive until authorities get to them.

                  Growth for growth’s sake without perceptive is just as dangerous in markets as it is in any government agency.

              2. “Every institution, not just organization. Markets are not immune to this”

                This is bull shit. Certainly corporations are vulnerable to this. As are the organized stock markets. However, you can’t have capture without a hierarchy.

  2. Excellent. Prof. Whittington delivers. I had hoped this would show up soon.

  3. Of course, this is an extremely familiar way of thinking about constitutional jurisprudence. It has been the dominant way that the political left has thought about constitutional jurisprudence for decades.

    I’d say many on the left would take issue with this characterization. In fact, it’s pretty bad form to deflect one of your side going full will to power by turning and accusing the left of doing the same thing.

    As Vermeule recognizes, originalism is not the friend of results-oriented jurisprudence.
    Originalism as practice sure is, though. The cherry picking of sources and narratives, the variations of specific subtypes…everyone seems to arrive about where they would want in the end anyhow.

    1. All approaches to jurisprudence are the friend of results-oriented jurisprudence, when practiced by somebody who is results oriented.

      The difference is that living constitutionalism isn’t every anything BUT results oriented. To be results oriented isn’t a failing for the living constitutionalist, the way it is for an originalist. It’s the whole point, living constitutionalism tells you to be results oriented.

      1. I’ve told you many, many times that your characterization just shows you’ve never really studied anything but originalism. And you continue not to bother to progress from your ignorant charactarization.

        I expect such of you, but am a bit surprised of Prof. Whittington pulling the same nonesense.

        1. It’s not an ignorant characterization, it’s a result of observation: When did you ever see a living constitutionalist “discover” that the Constitution had ‘changed’ in a way they disapproved of? Ever in a way they think for the worse?

          No, it doesn’t happen. The Constitution only ever “changes organically” in directions that the living constitutionalist approves of. Never in ways they find offensive.

          1. Heller. Citizens United. Shelby County. All living constitutionalism. All changes for the worse.

            1. “Citizens United”

              Bloomberg spent 1 billion and lasted one day

              Trump spent 1/10th of what Hillary spent

              After you spend some amount on basic organization, money has little to do with political success

              Citizens United is a minor case of little importance

              1. Importance is completely orthogonal from Lathrop’s point.

              2. Bob, the notion that the harm from Citizens United is non-existent if it can’t be found in a particular election return is a common misconception. It is not surprising that you share it.

                I suggest the greater harm done by Citizens United is to be found in threats, especially tacit threats, which corporate money is able to wield against sitting lawmakers—who fear both primary opponents and general election opponents. Incumbents know they enjoy name recognition advantages in elections. They also know challengers need to raise a lot of money for advertising to overcome that.

                Citizens United enabled would-be policy influencers to take away that incumbency advantage, by heavily supporting challengers with corporate money—which some might see as a good thing for politics, making politics more responsive. Problem is, any threat to an incumbent can be withdrawn in exchange for letting the person behind the dark money dictate policy. That is the principal method which corporate actors use to corrupt politics.

                The election is the overture, the policy making is the opera. Plenty of legal policy makers have shown themselves to be highly corporate compliant—and that is not just a Republican vice. It’s across the board—equally common among both parties. Corporate money, and especially the threat of hostile use of corporate money against an incumbent, accounts for that.

                That said, there is another factor worth mentioning, about money spent to influence elections, before the policy making even begins. Marketers of all kinds know that letting would-be consumers connect messages to distrusted human sources is a mistake. That explains two phenomena commonly seen in marketing materials.

                First, endorsement ads, which select widely-trusted humans—especially celebrities—to represent a message. The theory is that trust for familiar personalities—and provably widely accepted ones especially—can put to sleep the habitual skepticism with which message consumers guard their interests. Obviously, endorsement ads work. But probably they work better among only a segment of message consumers.

                The second phenomenon? Ads and packaging from which every sign of identifiable human authorship has been systematically erased. That is also about habitual skepticism. Marketing designers do it to counter the skepticism which every sane person deploys to protect himself from attempts by others to get his money. Getting rid of every sign of an actual person behind the marketing takes away the ability of a skeptic to attach his skepticism to a potentially self-interested human target.

                That principle of managing or hiding apparent authorship works so well that tobacco companies were able to turn package warnings into marketing advantages. They used lobbying to specifically require that each package or advertising warning refer to the Surgeon General as its source. Skeptical cigarette purchasers could be counted on to discount to zero whatever some bossy government bureaucrat demanded they pay attention to.

                A more effective deterrent would have instead demanded that cigarette messaging picture the named president of the Tobacco Company, in a business suit, with a briefcase, under a featured quotation, “Cigarettes are good for you.” That would have been a sales killer.

                Lack of anonymity is what hurt Bloomberg’s chances in the election. Not because money doesn’t influence politics, but because money tied to a particular person arouses every habitual defensive impulse among the electorate. The evil of Citizens United is that it enabled money to influence politics, without letting a habitually skeptical electorate make any connection to the actual people behind the influence.

          2. Why would it?

            Would you expect that judges would knowingly adopt bad tort or contract rules as the common law evolves?

            The whole point of judging is to try to get good results. Only sadistic jerks think bad results are a sign of good judging.

            Now do liberal judges sometimes find the law requires a conservative result? Yeah they do, which shows they aren’t as unprincipled as you think.

            1. “The whole point of judging is to try to get good results. Only sadistic jerks think bad results are a sign of good judging.”

              And, that is exactly the problem with living constitutionalists: You think that.

              It’s like a referee thinking that the whole point of refereeing is to try to make the “right” team win.

              The judge’s job is to impartially enforce rules other people created. If they’re good rules, that results in justice. If the judge thinks they’re bad rules that result in injustice, he should find a different line of work, one where he has some say in what the rules will be.

              1. And the problem with originalism is that it is a murky, ill-defined, shape-shifting doctrine that relies on motivated reading of history, and doesn’t acknowledge that the very word “meaning” is not particularly well-defined.

                It’s not popular on the right because it’s a rigorous approach to interpretation. It’s popular because it provides a veneer for right-wing preferences.

                1. What an original critique nobody has ever head b4 bernard!

                  1. I didn’t say it was original. Neither is Brett’s comment that I was responding to.

                2. The left are so addicted to living constitutionalism, they can’t admit that anybody else might be doing something different.

              2. You are completely wrong. Doing justice has always been a component of judging, and the purpose of all those rules you love is to produce good results, not to have rules for their own sake.

        2. Your own comment above shows your own inherent results-oriented bias.

          1. I’ve never found myself any more results oriented than everyone here. Usually less.

    2. With things like substantive due process it is hard to discern a truly methodology inspired approach from the left.
      It essentially operates as a one way ratchet, resolving social issues in favor of a certain particular political ideology alone. The constitution may not enshrine Herbert spencer’s Social static’s, but some surely think it enshrines social progressivism. If progressives enunciated some limiting principle (as Rehnquist tired to do in the euthanasia case with a tradition based approach, but was overturned in the sodomy/ gay marriage cases) that would be one thing. But I haven’t seen that

      1. Originailists disagree all the time. That’s cool – intellectual ferment and among great minds.
        And yet when non-originalists disagree this makes it impossible to discern a single methodology.

        But anyhow, I won’t fall for your trap. Playing old legitimacy games about the left with someone on the right just took of his mask and became a fascist is a pretty telling move, no?

        1. The person on the right did not take off any mask as professor whittington made clear.

          Also, i am fine with disagreement on the right and left. That is great.
          It is just that I havent seen any scholarship on substantive due process (other than from libertarians) which has made it seem anything other than nakedly ideological. It is judicial discretion at its absolute apex, and few supporters have tried so much as extending an olive branch to skeptics (“hey this isnt totally ideologically in our favor,because xyx”)

          1. There’s even originalist defenses of SDP, so I don’t know what you’re looking for.

            It’d also fit into Breyer’s purposivist paradigm from his book Active Liberty.

            My own preferred view is based on evolving language. What liberty means now, and for whom, have changed since the 1860s.

        2. Not to imply that Vermeule is indicative of conservative legal thought these days, but it’d be nice to see more condemnation of him, versus saying ‘liberals, by not being originalist, are just as bad as this fascist.’

          1. I dont think I said that re: liberals (I also dont know if he is a fascist for recognizing the inevitability, and utility of hierarchy, the specifics and form thereof matter here. He was purposefully vague as this article was itself a trolling operation. But if he is indeed a fascist then that is another matter).

            And there is also a ton of daylight between not being an originalist and being pro- freewheeling, unbounded substantive due process.

            1. Not you, but the OP implies it. As does Brett.

              It’s not the utility of hierarchy, it’s the utility of hierarchy to the exclusion of all other possible goods that makes it fascist.

  4. I’m not super up on the academic back-and-forth on this guy, but the tweets are lit:

    Adil Haque of Rutgers:
    Vermeule: I am a wolf.

    Con Law Twitter: Liberals love dogs. Wolves are basically dogs. How, then, can they object to wolves?

    V: I will eat your children.

    CLT: Liberals may object to that *result* but how can they object to your *methods*?

  5. The only thing Prof. Vermeule could do to realize his aspirations would be to help conservatives perfect a machine that mass-produces poorly educated, roundly bigoted, easily frightened, superstitious, selfish, gun-fondling, stale-thinking, resentful, rural, southern, elderly, white males — and even then Republican law professors would need to find a way to register such newly minted clingers to vote.

    In a society that has been improving against the wishes and efforts of conservatives for many decades, and whose electorate becomes less white, less rural, less intolerant, less religious, and less backward essentially every day, Prof. Vermeule’s dreams are fairy tales. Which is fitting, because guys like him claim to believe fairy tales are true.

  6. Keith E. Whittington@kewhittington
    ·

    As an originalist, I’ve long suggested to my skeptical friends on the left that they really would not prefer that conservatives just embrace a substantive living constitutionalism. They always laughed. One thing I really appreciate about Vermeule is he let’s me say, I told you so

    This would seem to imply substantive living constitutionalism is a thing beyond “results-oriented jurisprudence”

    1. This would seem to imply substantive living constitutionalism is a thing beyond “results-oriented jurisprudence”
      … No? This says exactly that substantive living constitutionalism is nothing more than results-oriented jurisprudence. Otherwise, liberals would love it if conservatives adopted it because then conservatives would reach the same policy-results liberals want.

      1. What do you think substantive means?

  7. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions…and a candid willingness to “legislate morality”.

    Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well.

    So, uh, this is just fascim, right? All for the ruler, respect for hierarchy, no individual autonomy or checks on the ruler…This conservative just became a fascist, eh?

    1. Well, no. It’s authoritarianism. Fascism is a particular approach to authoritarianism. There are others.

      The basic problem here, is that once you abandon originalism, you’ve abandoned constitutionalism. The purpose of written constitutions is fixity. The law is “this”, and remains “this” until you go through the formal process of making it “that”. Originalism just implements that, says, “The meaning of a written constitution remains fixed until that constitution is amended.”

      Once you abandon that, you’re just pretending you have a constitution, because it isn’t binding you anymore. Whenever it gets in your way, you just say it means something new, instead of amending it, so it never gets in your way in any meaningful way.

      And a constitution that never can get in the government’s way isn’t a constitution.

      1. We’ve gotten into this before, and will again. Originalism is not the only deterministic constitutional philosophy.

        This isn’t for that.

        1. Yeah, actually it is the only deterministic constitutional philosophy. If you want deterministic constitutional philosophy, if you’re willing to accept that the Constitution sometimes genuinely means things you don’t like, and not just because you don’t think you can get away with challenging them yet, you’re an originalist. There isn’t any alternative that isn’t just one flavor or another of pulling it out of your rear.

          1. Brett, I know a good deal more than you do about founding era history. Historical knowledge would enable me to construct an “originalism” better founded in actual history than any you imagine now. Some of the result you might like. A lot of it you would probably hate.

            What you would hate most was when I told you that because this was “originalism,” you had to live with it. Just as I told you it was, unless you could get an amendment. No going back to court to get a different ruling. That would be living constitutionalism.

            If that sounds outlandish to you, please note, that is exactly the way your take on originalism sounds to me—except, as I noted, you don’t get the history part right. As far as I can tell, you don’t even think there is a place for history in originalism—but don’t realize you think that. What keeps you from realizing, is that you know so little about history that you cannot even tell how ignorant of it you are. Instead, you have a little file cabinet in your brain, packed with present-minded assumptions about the past, which you mistakenly take to be history. And that makes you complacent.

            How did that dismissal strike you? Measured? Accurate? Grounds for admitting that whatever I conclude must be right, unless you can get an amendment?

            Just keep in mind that I have described exactly the way Scalia’s take on originalism strikes me—except that Scalia knew nothing about history, and never tried to learn. He may have had the same problem you have—not even realizing there was anything to learn. So Scalia went along like you, complacently substituting the methods of legal analysis for the methods of historical scholarship, staying historically blinkered, and calling that originalism. And you fell for it. Why wouldn’t you? You liked the result.

            1. Stephen, you literally know less than any regular commenter here about founding era history. You constantly post stuff that is either completely made up or ignores what the framers were actually doing.

              1. Dilan, one question. How many years have you spent reading original records from the framers? That’s how you find out what they were actually doing—not by swallowing whole the secondary interpretations you find in cherry-picked quotations on the internet (quite a few of which are completely made up, by the way). And certainly not by relying on backward-looking legal analysis as if it were historical scholarship.

                If you really did want to understand history, you could at least improve your insight, and somewhat lighten your task—at the cost of putting aside any chance of original insight of your own—by reading all the great works of history by the best American historical scholars, maybe 15 or 20 of them.

                Or, mix together some famous original sources, with some scholarship that touches on those sources and their times. That’s a good way to get insight into the difficulties of historical analysis. Try reading William Bradford, John Winthrop, James Wilson, Frederick Douglass, W.E.B. Dubois, Perry Miller, Edmund Morgan, C. Vann Woodward, Gordon Wood, David Brion Davis, and Eric Foner. That would be enough to help you get firmly in mind that you are dealing with a subject more complicated than you have yet grasped.

                You may not even know how far short your impressions of historical substance fall. What do you think you know about one particularly important framer, Benjamin Franklin?

                In the 1970s Yale University got possession of the best collection of Franklin’s papers, amounting to the preponderance of his writings and correspondence. Since then, multiple scholars have worked full time curating that collection, without yet completing the task. If I remember right, the curators are up to about 40 volumes, on the way to what they predict will be about 47 volumes in all, containing about 30,000 papers.

                One framer. Multiple historical careers. And nobody who knows the founding era thinks anyone has yet discovered most of what we have to learn from Franklin. One point is, that list of writings I mentioned above—in its entirety, which if you read it would probably multiply your experience in history many times over—falls notably short of the task of understanding just Franklin alone. After a few more decades let many other scholars make full use of that archive, understanding of Franklin—and probably of the founding era as a whole—will be transformed.

                Did you know that? Of course you must have. Because you know, “what the framers were actually doing.” That means you know not only what I have needlessly repeated about the Franklin archive, but also what is in it.

            2. I don’t know of any originalists who are unwilling to reconsider their conclusions in light of compelling evidence—historical or otherwise—that they are based on mistaken premises.

              Of course, it’s not very likely that anyone would outsource the process of evaluating their premises to any one person. And given the consistent ignorance of pretty much any relevant area that you consistently display, I imagine you’d be pretty far down the call sheet for anyone who was going to go that route.

          2. Originalists spend a lot of time claiming their philosophy leads to results they don’t like, but they don’t actually rule that way very often.

            1. It’s a distraction from the OP anyhow.

            2. You don’t much have to rule on things that people aren’t disputing in the first place. I’m not fond of the 17th amendment, but who’s bringing court cases to challenge it?

              The legal aggression, as it were, is coming from the other direction.

              1. Really? I find “originalist” 11th Amendment and strike down the Voting Rights Act and ridiculously broad Free Exercise exemptions for homophobes to be damned aggressive.

    2. Correct.

  8. I will stick with Origianalism, as Natural Law is too incoherent and America lost a common culture about two generations ago, making us unable to to define a common good anyway.

    As it is, the essay is warmed over rally for a confessional state, something few even on the Right want, even if we profess Judeo-Christian values.

    1. You want an American reawakening though. How different would that look, other than swapping Catholicism for Evangelical Protestantism?

      1. Do I want a 4th Great Awakening? It would be nice, but pigs will fly first. The liberal Catholics, of which there is roughly 40% of them, have long since abandoned doctrine and scripture, just like the mainline Prod denominations.

        While individualistic liberalism has clearly failed, in that its excesses and inherent contradictions are the seeds of its own destruction, all I can reasonably hope for is that the before the current demographic majority is replaced, that the same constitutional/legal protections put into place for current minorities are applied to the outgoing majority.

        1. While individualistic liberalism has clearly failed

          Not seeing much difference between this post and Vermeule’s.

          Congrats.

          1. Thanks, and not for the reason you probably think am I saying thanks.

            When I say that individualistic liberalism has failed, what do you think that means?

            1. When I say that individualistic liberalism has failed, what do you think that means?

              mad-kalak, I think it means right wingers are unwilling to acknowledge responsibility for tearing at the nation’s underpinnings. But maybe I am wrong about that (I don’t suppose I understand you), and what I think does not matter anyway.

              It will be the judgment of history which matters. Because I expect the nation will not be torn asunder, but will eventually settle down—around 2026–2034, is my guess—with the radical right once again mostly-quiescent, history will still be possible, but it will take time to get around to it.

              When it is time for history, much later, I suggest the judgement will be against the right. The unprecedented flood of lies, deliberately used from the right to fuel this episode, will be apparent in the historical record, and accurately assessed by historians. The lies will weigh heavily in the final balance against the right.

              That historical assessment will probably take place in the midst of a struggle to reform publishing, by the way. With a bit more hindsight, and after a lot more struggle, the factors which now confuse that issue will recede. What will be noted instead is the stark contrast between the successful system of publishing which preceded the internet, and the disastrous system which followed, after the internet confused too many people about what publishing is, and can do. Expect the historical role of Fox News and right wing talk radio to be much studied by historians.

    2. America has a common culture . . . it’s just not the one clingers would have chosen. That some dwindling separatist pockets of backwardness and intolerance remain active — in backwater states, in downscale academia, in fundamentalist religion — does not diminish the state of American progress or of the culture war.

      1. You’re such a silly person, so caught up in your online persona that you don’t even think before you copy/paste your trash. The primary ideology of the left is literally “multi-culturalism”. You know, multiple cultures, many of them with little in common.

        1. Tolerance and inclusiveness are part of modern, improved American culture.

          During my childhood, the bigotry was open, common, casual. And the bigots were proud to be known as bigots, and insistent that everyone knew that their way was the way.

          Today’s bigots are on the defensive. They are guarded in public, hiding behind euphemisms such as “traditional values,” “color-blind,” “conservative values,” and “family values.”

          Society has improved. Gays are no longer beaten in alleys — by the police. Women are no longer dragged by the sleeve or hair into the house. Teachers no longer lead students in prayer and creationism has left science classrooms, at least in legitimate schools. A black child no longer is told to ‘find another way home’ by a homeowner seeking to preserve the racial purity of his sidewalk. Agnostics and atheists are largely no longer shunned by mainstream society. Black men need not remember to lower their gaze in the company of white women.

          Modern Americans enjoy bagels, burritos, Jameson, egg rolls, collard greens, pad thai, empanadas, Cuban sandwiches, German potato salad, lutefisk, dal, and the Friday fish fry. The successive waves of bigots who targeted the Irish, Jews, Asians, blacks, Italians, Hispanics, Catholics, eastern Europeans, blacks, atheists, gays, Muslims, women, other Asians, other Hispanics, agnostics, other Hispanics, and others would be mortified — but they lost the culture war, as they should have.

          The modern American culture is stronger as an alloy. It is multicultural. Those who preferred prescribed public religion and racial purity dislike and still to some degree resist this, but they are America’s losers. Overcoming them has made America greater.

          1. Again, you’re being silly. It’s literally called “multi-culturalism” and when the left emphasizes group identity like it does, you don’t get an alloy (or the melting pot as we called it) you get a mixed salad.

            You’re a parody, even of yourself.

            1. I’m a parody.

              You’re an embittered, stale-thinking casualty of the culture war.

              I win. Literally. You should be thankful the liberal-libertarian mainstream that has shaped our improved America is relatively gracious toward the clingers who resist modernity.

              1. Parody only works if the other people are in on it, btw. Even on April Fools Day, because it reads like you are “literally” advocating for a race war. Do you want a race war?

                And you might not “win” (at least demographically) as so many of your modern progressive types are aborting their offspring.

                1. Advocating a race war? Which race(s) would be involved? Which race(s) would I be rooting for?

                  Your contention seems delusional, even for an unusually superstitious bigot.

                  Why not try to accept your deserved defeat in our continuing national progress with dignity?

  9. Scalia often responded to those who criticized his originalist methodology that they really wouldn’t like it if he just ruled based on his policy preferences instead.

    I could easily be convinced that this essay is simply a Swiftian way of making the same point.

    1. That’s true, but the thing that proves Scalia wasn’t the great intellect he thought himself to be is he thought that somehow proved he was a great judge, rather than proving he should have never been one at all.

      1. This is beneath you. Every Supreme Court justice in living memory has been a great intellect, though that fact has not always made them great at their job. Call Scalia a bad judge if you want, for the reasons you’re articulating here. But you can’t seriously claim that he was stupid.

        (And yes, I agree that equivalent insults to liberal justices are common on my side. I try to call them out the same way when I see them.)

        1. Scalia was a mediocre intellect. Really. He basically read up on traditional Catholicism (itself intellectually dubious), devised mechanisms to read many of its tenets into law, and stopped.

          Rehnquist and Roberts, to name two, are far smarter. Formalistic thinking is often a sign of intellectual limitation- it’s a fear of using reason.

    2. You mean he didn’t?

      1. Yes, originalist judges (Scalia included) certainly have issued opinions that do not reflect their policy preferences. If I wanted to offer an illustration of what would happen if they didn’t let the methodology limit their conclusions, this essay would serve very nicely.

        1. Is it the methodology, or the fear of going too far and causing a backlash against conservative jurusprudence?

          I’m not claiming it’s the latter, rather asking how you can tell?

  10. This isn’t conservative its reactionary. Nor will ot get any traction in the conservative movement.

    As much criticism as Trump has received from never Trumpers and liberatarians even they have to admit his judicial naminations have been stellar. Well except for those so deranged they would vote for Bernie over Trump.

  11. Vermeule seems bonkers, but in some ways he sounds like Hobbes. Hobbes was not bonkers. Hobbes was systematic. If Vermeule is systematic, you cannot tell it from the essay.

    But his tendency is more traditionally conservative than commenters here seem to credit (which is unsurprising, given how vociferously opposed to traditional conservatism many movement conservative commenters are). And Vermeule shows an instinct for identifying troubles lodged in the interstices of modern American constitutionalism. I can’t imagine getting to a place where I agree with him on his grand vision, but it might be worth hearing more about his critiques of the details.

    This sees to be a guy who at least does not pass by without noticing that the business corporation is a disruptive factor in American constitutional governance. Who else among leading conservative legal philosophers is taking that on?

    If you want to characterize Vermeule as fascistic, you have to notice that the cautions about corporations don’t fit that mold. But apparent disregard for personal rights does seem fascistic, and threatening.

    On the evidence of the linked essay, this is not a guy who is easy to summarize.

    1. Corporations do plenty of bad things, but they really don’t screw up constitutional jurisprudence at all. Any more than labor unions, parties, nonprofits, churches, or any other group of people do.

      1. Sure they do, Dilan. They screw things up plenty. Unlike the others you mention, the objectionable business corporations—which are most of them—are governed by per-share voting, a plutocratic system. To the (gigantic) extent the nation permits per-share voting corporations to participate in politics—and influence policy made by elective bodies—that infuses rule on plutocratic principles directly into political and policy outcomes. The result has been an economic disaster for ordinary Americans.

    2. I don’t know if he’s bonkers, but his view of how things should work is. This paragraph should be enough to tell anyone that his “common good constitutionalism” is just a mask for extreme authoritarianism

      Finally, unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

      Subjects? Rulers? That’s not the way I like to think about things.

  12. Vermeule basically proposes recasting the Constitution as a fundamentally authoritarian document under which the people are ruled rather than governed and individual liberty is usurped by an ever stronger government imposing the values of the ruling elite upon the citizenry.

    In other words, a rejection of Jeffersonian and Madisonian principles.

    1. Jefferson and Madison were not liberty loving people. Ask the slaves.

  13. Meet the new boss
    Same as the old boss.

    — The Who

    https://m.youtube.com/watch?v=SHhrZgojY1Q

    1. “And a parting on the left
      Is now a parting on the right”

      — The Who, Won’t Get Fooled Again

  14. Meh, its neither fascism or authoritarian.

    Its just a Catholic version of the idea that law is based on morality and that the needs of the many [the common] outweigh the needs of the one.

    1. And the best way is for the many to be ruled over by a father figure at the top, dispensing moral laws by the power of virtue attached to his holding the position of ruler.

      This would be extraordinary, except for how many of the usual suspects have showed up to endorse it or with faint condemnation around here.

    2. Exactly, it’s really just a non-denominational form of Intergralism that he is pushing.

      What’s really hilarious to me though, is that the leftists on this comment board are entirely unaware that the order that they support is a leftist version of what Adrian Vermeule is advocating, you know, like Bake the Cake is the perfect encapsulation of that.

      1. Or maybe what’s amusing is that you’ve so cartoonified the other side you can’t tell the difference between them and this kind of fascistic claptrap.

        The lack of perspective required to equate public accommodation laws with the monarchical police state…

        Except, as noted above ‘individualistic liberalism has clearly failed,’ you don’t like individual rights anyhow! Make up your mind.

        1. Yea gads, you have so little self-awareness. Leftists WANT a progressive version of what Vermeule is advocating for…they just don’t have it (yet). The Bake Me A Cake crowd doesn’t win all the time, now do they? Public accommodation laws have been like a golem, supported by the right to end anti-black racism and to attack the Democrat Party at their segregationist base, but like all golems they come back to destroy their creators. Likewise, the golem the left created, excessive individual rights and RFRA laws, meant to attack the communitarian right, are coming back to attack them. We are in the process of seeing both parties switch sides on these things.

          Individual rights are fine, provided we agree on them, you know, by an amendment process to put them into constitutions, either at the state or federal level. Rights are in imposition upon others, and positive rights a form of redistribution. Moreover, once a “right” is created, it is almost impossible to cancel. That’s why a Burkean conservative thinks social change needs to come through the legislature, not the courts.

          1. Public accommodation laws have been like a golem, supported by the right to end anti-black racism and to attack the Democrat Party at their segregationist base,

            Supported by the right? No. See Goldwater, Barry, and Buckley, William, for example. Pretty influential folks on the right, I’d say.

            Yes, yes, I know. Republicans supported the CRA and (Southern) Democrats fought it. But the parties were quite different then. Democratic or not, the South was conservative – see the 1964 election – and there were liberals, as well as conservatives, in the Republican Party. The parties didn’t split left-right as much as they do today.

            So stop the BS.

            1. The Republican votes were essential for the Civil Rights Act and Voting Rights Act. Quantifiable evidence matters; 80% of Republicans voted for the CRA, without which it would not have passed.

              You need to stop the BS, you’re not only factually wrong, but so invested in this idea of the left as the good guys, you can’t see your own warts.

              1. Were doing a lot of work here.

                1. I honestly don’t know what you mean by that comment, what do you mean?

                  1. Your note that ‘The Republican votes were essential’ includes the past tense of ‘to be.’ That particular tense is doing a lot of work in your thesis, especially when confronted with Goldwater, Barry, and Buckley, William, all of whom are more recent, and all of whom you ignore.

                    Plenty of commenters here who think the CRA’s are in violation of our rights. None of them on the left.

                    1. Didn’t I say the CRA was a golem? Do you know anything about the Jewish folktales about such creatures? It’s not an uncommon literary allusion. In short, like Frankenstein, it always rebels and attacks its creator after serving its original purpose. Goldwater and Buckley saw the problems looming down the road, and currently conservatives (at least some who are willing to be called racist) have no difficulty pointing it out. Even some Dems saw this coming…Senator Hubert Humphrey famously he’d eat the paper the bill was printed on if there ended more than 400 civil rights jobs. In 10 years, there were about a thousand.

                      Now, it’s funny that you agree with Benard just throwing out two names and speak to that as weighty conclusory evidence, as if it counts more than recorded VOTES. But lo and behold, I give you some actual quotes of prominent liberals who want to see America disarmed, well, that’s all my fevered imagination.

                    2. None of this thread since bernard’s 11:18 am post been about your positions.

                      And even above, it was about your characterization of the other side, not your own deal.

                      Thanks, I know about golems. I’ve watch the X-Files HRA episode.

                      Your argument is now confused on which GOP you’re talking about, as bernard saw coming down the road this morning.

                      You don’t seem to know the difference between an intellectual leader and another politician.
                      Feinstein and Beto are many things, but another Goldwater they are not.

                    3. If your an X-files fan, you should be been able to apply the lesson correctly. It’s not happening.

                      Why the focus on my positions? At first, this was just some sage nodding in agreement between Bob from Ohio and I about Intergralism (truly a niche ideology). As for Benard, he said something factually wrong, and (I believe) morally wrong. I provided evidence to show he was factually wrong. Suddenly you want to talk about parties flipping on the issue. Well, no sh*t, that’s why I called the RFRA a liberal golem and the CRA a Republican golem.

                      As for standards of evidence, to make another literary allusion, you’re a bit like the caterpillar from Alice in Wonderland. Let’s ignore those vote, and debate “prominence”.

                      Goldwater was a losing presidential candidate and a senator.
                      Feinstein, one of the longest term senators in history. Seems about the same. Beto? More prominent than Goldwater if you count the press attention. Oh, and you forgot Bloomberg, and Obama, and all the others too, even more prominent.

                    4. Not an X-Files fan actually. At the time I found such pseudoscience to be badwrongfun. I was a very earnest child.

                      But my property professor thought it would be a good one to show.

                      Your factual issue seems to be that when bernard disagreed with with your point that the GOP was instrumental in ending ‘anti-black racism’, you thought voting for the CRA was all that was required. Is that correct?

                      Anyhow, your original argument remains that public accommodation laws are the same as the ‘all for the state because the state is good for all’ in the OP. This is just the same ‘freedom means freedom for me, anything else is tyranny’ that Goldwater used when attacking the CRA’s. And Buckley. It’s old, it’s unimpressive.

                      And particularly unconvincing when you talk about great awakenings and the death of individual liberalism. By which I take to mean multiculturalism.

                    5. “Your factual issue seems to be that when bernard disagreed with with your point that the GOP was instrumental in ending ‘anti-black racism’, you thought voting for the CRA was all that was required. Is that correct?”

                      The GOP didn’t set out to end “anti-black racism”. They set out to end legal inequality of the races. Which is not at all the same thing, though related. (Racism can be expressed in the form of violations of legal equality.) Legal inequality is a proper topic for government to address, because people are, literally, legally entitled to it. Racism, isolated from criminal acts, isn’t, because it consists of attitudes and choices people are actually entitled to.

                      That’s where the problem came in: The ‘civil rights’ movement wasn’t content with actual civil rights, their genuine entitlement to legal equality. They wanted economic equality, social equality, and respect, and they wanted it fast, not as a result of a generations long process.

                      But these are not the government’s to give, and especially not the government’s to enforce.

                      Worse, the government’s attempt to give them actually required violating the liberty and legal equality everyone was entitled to. Racial quotas and preferences made a come-back, only stood on their heads from before. People were once again deprived of their right to make their own choices.

                      At that point the ‘civil rights’ community lost the right. Because they were no longer pursuing civil rights.

                      And the left, already comfortable with racial discrimination, gained a new client race, with the Orwellian promise to achieve civil rights by violating them.

                    6. Brett, take it up with m_k, in his April.1.2020 at 11:03 am post.

                      Your narrative about how civil rights cannot be about economic equality, social equality, and respect ignores the demonstrated effect of cases like Brown v. Board. Like it or not, at least some of the American people look to our government as a leader.

                      At that point the ‘civil rights’ community lost the right. Because they were no longer pursuing civil rights.
                      You don’t get to say who doesn’t have the right. And you don’t get to say what the goal of civil rights has to be.
                      ‘genuine entitlement to legal equality’ is the same logic used in separate but equal.

              2. m_k,

                Yes. I said the Republican votes were essential. What I deny, which you do not address, is that the CRA enjoyed the support of the right. That’s simply false. Evidence matters. That many Republicans voted for the CRA does not mean “the right” supported it.

                The GOP of the time was not nearly a uniformly right-wing political organization, just as the Democratic Party was not a uniformly liberal one.

                Conservatives in both parties, including Sen. Goldwater, opposed the legislation. Moderates and liberals supported it.

                Buckley, who was probably the most admired commentator on the right, loathed the CRA, and spent many years as a segregationist, as did other conservative writers. So you’re the one BS’ing.

                1. You could loathe the CRA, without being a segregationist, or racist.

                  All you had to do is think it went beyond what the government was legally entitled to do, and start infringing on private choices people are legally entitled to make.

                  Goldwater’s argument, basically, was that the 14th amendment guaranteed legal equality and equal treatment by government, and authorized legislation to that end. And the CRA went beyond this to regulating the private sector.

                  1. You could loathe the CRA, without being a segregationist, or racist.

                    Principled stands that don’t hurt you but do hurt some other group are not very impressive.
                    The privileged supporting racism in effect, if not in intent, is still immoral and not worthy of respect as some noble stand. Goldwater lost that battle, and many people’s respect when he took that stand.

                    And as time continues, such a stand only gets more cheap and glib and simplistic.

        2. Adrian is not advocating a police state nor a monarch. Though he would probably like a king personally.

          A strong president carrying thru the wishes of the people as expressed in laws passed by the legislature without to much judicial interference is not a dictatorship.

          He wants the law to reject the libertine views of liberals and neo-liberals aka libertarians.

          1. Prof. Vermeule appears to prefer a superstition-laced, authoritarian, prudish, backward government and a credulous, stale-thinking, homogenous, reason-rejecting citizenry.

            How did he avoid becoming a Conspirator?

            1. How did he avoid it? Perhaps your fake online persona scared him away. Congrats (if so)!

              1. Nothing fake about the opinions expressed by Rev. Arthur Kirkland, who is pseudonymous (although the Conspirators not only know who I am but indeed have consumed my free beer in a couple of . . . cases).

                1. No, you’re a fake, and the worst kind of fake at that, one who takes his persona so seriously he starts to believe that he is what he faked being. How much you play up that fake persona is inversely proportional to the number of people that you think are paying attention to you.

                  And taking other’s people’s work and pretending like it speaks for you, like you were the inspiration, just makes it worse.

                  1. I don’t like people who engage in race-targeting voter suppression.

                    I don’t like gay-bashing dullards or Muslim-baiting knuckle-draggers.

                    I don’t like people who suppress science, teach nonsense, and warp history to flatter childish superstition.

                    I don’t like people who are the latest wave of anti-immigrant ugliness, retracing the traditional path of those who targeted the Irish, Italians, Jews, gays, Catholics, blacks, agnostics, Asians, and at least a dozen other groups.

                    I don’t like gun nuts, white supremacists, and people who appease gun nuts and white supremacists.

                    I don’t like people who resent educated, accomplished, skilled, modern, reasoning, tolerant Americans. I don’t like those who pine for good old days that never existed.

                    I don’t like Trump supporters, their goofy red hats, or the can’t-keep-up backwaters inhabited by the depleted human residue that constitutes the Trump base.

                    I gather you and I do not share many likes or dislikes in this context.

                    Thank goodness your side of the American divide continues to lose ground as America continues to progress against your wishes and efforts.

          2. I see no legislature in his paradigm, Bob.

            1. I also see no voters.

              What’s your latest take on the utility of the franchise, Bob? Landed gentry only?

              1. “What’s your latest take on the utility of the franchise, Bob? Landed gentry only?”

                Utility? Its mainly symbolic, no individual vote matters. Its as effective at influencing public policy as yelling at the manager to bring in a reliever.

                1. Not individual votes, the franchise.

                  1. The franchise is mainly symbolic. No vote matters and the so called elites control the government and largely do what they want anyway.

              2. I see no citizens. Only subjects.

            2. “I see no legislature in his paradigm”

              Who enacts laws?

              1. Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them. Instead it draws upon an immemorial tradition that includes, in addition to positive law, sources such as the ius gentium—the law of nations or the “general law” common to all civilized legal systems—and principles of objective natural morality,

                1. Locke thought that laws that failed to protect the public good could be resisted, by revolution if need be.

                  Little different than that quote.

                  1. Yeah, and MLK said an unjust law is no law at all. Basically the same as this guy!

                    1. Common good is just reheated “natural law” with some Catholic seasoning.

                    2. I’m not much of a fan of natural rights jurisprudence, but the is different in that it’s not airy invocations of rights, it’s posits specific and fascistic government as the best way to ensure those rights, and that we should move America in that direction by hook or by crook.

  15. “This would be extraordinary, except for how many of the usual suspects have showed up to endorse it or with faint condemnation around here.”
    “Or maybe what’s amusing is that you’ve so cartoonified the other side you can’t tell the difference between them and this kind of fascistic claptrap.”

    Um…

    1. Ah. But the difference is I’m talking about a subset of the VC comentariat, whereas m_k is talking about liberalism generally.

      I’m reporting what I observe.
      m_k is making a vastly more general statement.

  16. I’m not sure if I constitute a usual suspect, and I don’t really care to argue whether Vermeule’s approach parallel’s Mark Tushnet or other proponents of living constitutionalism, but I will say without qualification that Vermeuele can go fornicate with a goat.

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