Enter Conservative Living Constitutionalism

This wolf comes as a wolf

|The Volokh Conspiracy |

The Atlantic has just published my response to Adrian Vermuele's Atlantic article Beyond Originalism. My piece is entitled, Common-Good Constitutionalism Reveals the Dangers of Any Non-Originalist Approach to the Constitution. Here is a taste:

Common-good constitutionalism "should take as its starting point substantive moral principles that conduce to the common good," which, Vermeule believes, can be "read into the majestic generalities and ambiguities of the written Constitution." Above all, common-good constitutionalism requires "a candid willingness to 'legislate morality'—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority." . . .

This is nothing but conservative living constitutionalism. While the article is long on narrative, critique, and assertion, it is short on original theory and specifics. Instead, for his theory, Vermeule relies on "Ronald Dworkin, the legal scholar and philosopher" (and my jurisprudence professor when he visited Harvard Law School), who "used to urge 'moral readings of the Constitution.' Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin's, which were of a conventionally left-liberal bent." . . .

Moral readings constitutionalism is a version of living constitutionalism. Its mantle has been taken up and further developed by Originalism-critic and Boston University law professor James Fleming. Here is the description of Fleming's latest book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms:

James Fleming rejects originalisms–whether old or new, concrete or abstract, living or dead. Instead, he defends what Ronald Dworkin called a "moral reading" of the United States Constitution, or a "philosophic approach" to constitutional interpretation. He refers to conceptions of the Constitution as embodying abstract moral and political principles–not codifying concrete historical rules or practices-and of interpretation of those principles as requiring normative judgments about how they are best understood-not merely historical research to discover relatively specific original meanings.

Sound familiar? Jim Fleming call your office. You have a new convert, though he's not exactly what you hoped for (and he doesn't cite you). He's just across the river, so you guys should get together and hash this out over lunch.

In my Atlantic essay I raise some questions about Vermuele's particular moral readings approach:

A moral-readings approach like Vermeule's raises some obvious questions:

  • What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)
  • Assuming there is any judicial review left, what in judges' training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.
  • Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?

What does Vermeule have to say about these and other obvious questions? Well, nothing. He does not even acknowledge that such questions exist. Presumably, all will be revealed to us in the fullness of time.

There is much more in the whole essay, which asks progressives to consider how the living constitutionalism they favor can be adopted by conservatives and used against them. Perhaps they will consider either muting their criticism of originalist judges, or even joining the Originalism League themselves. There are several competing teams they can choose to play for.

You can read the whole essay here.

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  1. “Jim Fleming call your office. You have a new convert, though he’s not exactly what you hoped for (and he doesn’t cite you). He’s just across the river, so you guys should get together and hash this out over lunch.”

    {TWEET} Ad hominem argument. Twenty yards, and loss of down for GULC.

    Play on, gentlemen. {TWEET}

    Mr. D.

    1. On the line by line of the argument, I do disagree with one aspect of Vermeule’s argument. The jus gentium is fundamentally empirical–those laws that Justinian and his epigones found everywhere, not the laws that they thought should obtain everywhere. The two sets are distinct; the USSR thought that the government-facilitated transition from socialism to communism should obtain everywhere, and empirically, it didn’t. The jus gentium is made by lawmaking; state practice and commentators’ writing, the other two traditional indicia, are mainly about discerning acts of effective lawmaking.

      “(F)or, as the old hermit of Prague, that never saw pen and ink, very wittily said to a niece of King Gorboduc, ‘That that is is.'”

      Mr. D.

  2. Reality is that America was a Christian nation in 1787 — Puritan, Catholic, Quaker, Anglican, etc. Each state had its own faith, but HAD a faith.

    1. Sure to a certain extent, but it was the deists and unitarians that captured the Constitutional convention so we are stuck with what they wrote into the Constitution, things like no religious test, or no established church is what we are stuck with. We could repeal the 14th, and then go back to allowing the states to establish religions, but i don’t think that is going to get off the ground.

      Being a godless atheist myself i don’t have any problem with that.

      1. Atheism, Communism and Fascism (and many other isms) are in most respects religions, espousing moral codes and duties arising from those codes. The mere absense of a deity does not make them any less a religion.

      2. “or no established church is what we are stuck with.”

        Technically, what the establishment clause meant was that the *Federal* government couldn’t legislate on the topic of established churches. Which was more about keeping the new central government from screwing around with state established churches, than out of opposition to the whole idea.

        Of course, since the 14th amendment, it’s no established churches at any level.

        1. I believe that all states had disestablished their churches long before the 14th amendment, so in that respect the amendment was moot, except possibly for Utah with it’s strong association with the Church of Latter Day Saints. The Mormons acceptance of polygamy actually delayed the states admission to the union many years until shortly after the Mormons officially abandoned the practice.

          1. [IANAL]

            A few states still have a religious requirement to hold public office within the text of their state constitutions. AFAIK, none of that language has been amended, but AIUI the incorporation of the 1st via the 14th, effectively renders those requirements moot.

        2. “since the 14th amendment, it’s no established churches at any level.”

          Only because stupid judges “incorporated” a prohibition against Congress and Congress only passing laws as binding on the states.

          1. Yeah, stupid of those judges to do exactly what the authors of the 14th amendment expressly intended they do, albeit many decades later, and in a bass-akwards fashion.

            1. What in the14th Amendment takes the word “Congress” out of the 1A?

              1. Either the privileges/immunities clause or the due process clause, depending on who you ask.

                And both of them are reasonable arguments. It is reasonable to consider First Amendment rights to be privileges and immunities of citizenship, and it is also reasonable to consider them forms of liberty that no person may be deprived of without due process of law. (And due process has a substantive component, because in some case there is no possible amount of process that could justify infringement on a substantive right, so the process that is due is infinity.)

                1. The idea that the federal judiciary would have such broad jurisdiction over state matters under the original meaning seems more and more ridiculous the more I study it.

            2. 60 years later to be more exact was when the courts invented incorporation. Brett point to where the authors expressly intended this. I know the texts but I don’t find it clear, seems like there is evidence pointing both ways.

    2. Reality is it’s 2020.

    3. Similar old-timey reality involved bloodletting, witch trials, mercury tinctures, slavery, and the like. Thank goodness America has progressed — mostly against the wishes and efforts of conservatives — and is no longer so tethered to ignorance, superstition, authoritarianism, bigotry, and the like.

      1. Just remember, the Democrats of the South were the ones who wanted to keep slavery. The Republicans were the ones who ended it.

        Oh, yeah, and the Democrats were behind the KKK, in case you forgot.

        1. And yet things are different today.

          The Dems moved forward and the Reps are stuck in idle.

          You guys ever look at a calender?

          1. No, things aren’t any different today. Democrats are still the party of racial discrimination, they’ve just changed client races.

            1. Yeah, all those poor, white folks.

              You’re a joke.

              1. It’s no joke: The black civil rights movement got impatient with mere legal equality, and the Democrats offered legal privileges which would be supplied at the expense of violating actual legal equality. Racial preferences and quotas.

                The Democratic party bought the loyalty of blacks by providing them with discriminatory racial privileges. Just as they’d done with whites at one time.

                1. The Democratic party bought the loyalty of blacks by providing them with discriminatory racial privileges.

                  Unsurprising that you, who see only bad faith on the left, can only see liberal policies as payoffs for and their voters as being bribed.

                  If that’s not how the right, and you, work, then have you considered that’s not how the left works?

                  1. Yeah, I mean on affirmative action, a nice place to start is LBJ’s “starting line” statement. You can disagree with it, but I highly doubt any conservative doesn’t understand the concept despite disagreeing with it.

                  2. Sarcastro, Actually it is exactly how a large number of politicians on both sides work, and in terms of systems it is exactly how government works in general.

                    Of course, overwhelmingly the average person is not operating in bad faith in their politics; they are just operating in profound ignorance and cognitive fog. Mostly people seem to collect their politics as cheap totems of virtue signaling, self-righteousness, tribal belonging, and meaning in general. It’s prepackaged propaganda delivered to their doorstep like an Amazon box.

                2. Yeah, again all those poor white folk.

                  Show me where white folk have been harmed.

                3. It’s no joke: The black civil rights movement got impatient with mere legal equality, and the Democrats offered legal privileges which would be supplied at the expense of violating actual legal equality. Racial preferences and quotas.

                  The Democratic party bought the loyalty of blacks by providing them with discriminatory racial privileges. Just as they’d done with whites at one time.

                  Brett, thank you for that. That, right there, is as concise a statement of the motivating animus behind Trumpism as I have ever seen.

                  For at least 30 years I have argued with liberal friends that the nation would pay a fearsome price, not so much for affirmative action, but for callous mismanagement of affirmative action. And especially pay a price for the moral monstrosity of singling out low status white people to bear most of the costs of affirmative action, while blaming and humiliating low status whites if they complain. Now we see that price in its full magnitude, and the price is Trumpism.

                  Given that some of those friends I argue with are high status white college professors, employed in prestige institutions, with enduringly terrible faculty affirmative action records, you can imagine how my remarks have been received. I have not lost any friendships, but I have complicated them, and I have skunked out an elite garden party or two.

                  That said, affirmative action has been indispensable, and a policy triumph for the nation—probably the best policy the government has maintained during my lifetime. I was born and passed most of my boyhood under Jim Crow, as a white person. Every time I think of it, I thank America for relieving its citizens—black, white, and otherwise—of that horror—at least insofar as the attempt has been successful. There is far more to do.

                  Arguing against mistakes made during affirmative action makes sense. But arguing against affirmative action on principle is racist. To claim validity for their cause, Trumpists will need to learn the distinction, or they will have to lose. There should be no place in America for a racist political party.

                  1. That, right there, is as concise a statement of the motivating animus behind Trumpism as I have ever seen.

                    Meanwhile back on Earth, working class Trump voters don’t have animus against black folk, they have animus against those who call them deplorable, treat them with contempt and patronise them from a position of complete ignorance. Like Hillary. And CNN. And :

                    …. some of those friends I argue with are high status white college professors, employed in prestige institutions

                    and who may be found at

                    an elite garden party or two

                    braying about climate change from the solid foundation of their major in French literature.

                    Trumpista animus is all about returning the contempt of the liberal elite, with interest.

                    But arguing against affirmative action on principle is racist.

                    🙂 Yup.

                    War is Peace. Freedom is Slavery. Ignorance is Strength.

    4. Religiosity in America is a product of the Second Great Awakening. That was within ten years of the founding, but, at the time of the founding, only something like 30% of Americans regularly attended church.

  3. I am in favor of original meaning originalism for its determinacy benefits, ie its reduction of judicial discretion. The less judicial discretion, the more rule of law; the more judicial discretion, the more rule of judges.

    Which is not to say that originalism is perfectly determinate (nothing could be), nor that it is the most determinate of all possible interpretative systems. Current meaning textualism would be more determinate, since current meaning is likely to be more accessible than original (where they differ.) But against that current meaning textualism would suffer from the disadvantages of shifting meaning over time, possibly involving a shift from some presumably rational object to something more random. It is also exposed to the risk of deliberate attempts to change the meaning of words by particular lingusitic elites (eg see the medical profession’s goalseeking retooling of its reproductive terminology.)

    Thus I admit to prefering a slightly less determinate scheme, to avoid the more determinate scheme’s flaws.

    But it seems to me that in order to have a system of law at all, we do need a very high priority for determinacy. Without that, we’re just left with a huge dollop of judicial discretion. And even with wise judges, rule by judicial discretion is not really a system of law, it’s just arbitrary.

    Which makes it all the more strange that Vermeule should want to junk originalism so that more deference can be given to legislatures.
    Originalism is simply that branch of textualism which prefers the original meaning of the text, to the current meaning. As such it applies just as much to ordinary statute law, and regulations, as to the Constitution. As statutes tend to be much younger than the Constitution, a tension between original and current meaning is less likely to arise. But the same interpretative scheme applies to both.

    But if judges are not to have their discretion tightly corralled by the original meaning of the text, why would Vermeule expect the legislature’s efforts at text to attract judicial deference, any more than the text of the Constitution ?

    1. The problem with current meaning constitutionalism is it often leads to results that would have been considered absurd by the framers. This is often due to words falling out of common use then people trying to guess what they mean, and getting it wrong.

      Take for example emoluments, which had a specific meaning of income derived from an office. Now because its fallen out of use many people take it to mean any income or profit. 9 out of 10 people no longer know what established religion meant either, because we haven’t had one for 200 years, now they think it means no Christmas trees in the park.

      Another example is “bear arms” where the ordinary term bear or bearing is fallen out of everyday use so it no longer means to many simply carry arms, but seems exotic enough that it must mean specifically carrying arms as a part of militia service.

      Original Public Meaning is the best avenue to constitutional interpretation because it provides the trueist results. And of course the reason it came when it did was the accumulated language changes were starting to take their toll.

      1. The problem with current meaning constitutionalism is it often leads to results that would have been considered absurd by the framers.

        I’m not sure that “results that (some people think) would have been considered absurd by the framers” are necessarily wrong.

        The framers were not gods, who foresaw every eventuality, and whose imagined view of every case we must follow.

        1. “I’m not sure that “results that (some people think) would have been considered absurd by the framers” are necessarily wrong.”

          I’d agree with that. From a policy standpoint, it isn’t really an issue that the Founders would have found a policy bad or absurd. They were quite capable of being wrong.

          The real problem with “current meaning” constitutionalism is that it defeats the purpose of having a written constitution: Fixity of meaning. The idea that the content of the highest law of the land only changes when formally changed.

          You want the law to remain unchanged until formally changed in a way that’s transparent and subject to democratic accountability. Not changed whenever a fad sweeps the legal community, and screw what the general citizenry things about the matter. Judges are literally the last group that should be allowed to change constitutional meaning, given the extent to which they’re deliberately insulated from public sentiment.

          1. See my response to Lee Moore, below.

            “Meaning” has more than one meaning.

            1. Maybe in your post-modern hellscape where there is no such thing as universal truth, but thankfully that doesn’t exist outside of your head and a few select universities’ social sciences departments.

              1. Not what I said, but never mind. Go tilt at your windmills.

        2. It didn’t require much foresight, but they most certainly did foresee how rules change at the whim of an authoritarian state with too much centralized power, hence the Constitution. They also foresaw that people would misinterpret their ideas long after they were dead because people misinterpreted their ideas while they were still alive and well enough to vigorously debate their principles.

          If you don’t like their standards, why exactly are you here? Go make your own standards somewhere else. And don’t give me that crap about passing amendments. Anyone who tries to amend the Constitution out of the Constitution knows exactly what they’re asking for.

      2. Sure. But I am trying to dissect “best” into component parts. One part is “determinate”, another part is “rational.” There are trade offs.

        Trade original meaning for current meaning and you gain a little determinacy at the risk of losing a bit of rationality.

        If you were a constitutional / legislative “intent” merchant, or a living constitutionalist, you could say you were trading a bit of (I would say a truckload of) determinacy for (you would argue) a bit of extra rationality.

        The important difference between my willingness to trade a little bit of determinacy for a bit of rationality, in surrendering current meaning for original meaning; and my unwillingness to surrender more determinacy for (arguably) more rationality, by surrendering textualism for intent – is that my surrender gives the judge very little extra discretion.

        If I surrender textualism for intent, every judge in every case gets to exercise his discretion as to what the framers / legislature intended, but for some mysterious reason, chose not to set down on paper.

        Whereas if i surrender currentism for originalism, that’s baked into the interpretative scheme. The judge doesn’t get any discretion case by case. If he wants to rule the way he wants to rule, he has to come up with some plausible story as to how the original meaning of the words mean the answer he wants. Whereas if I let him pluck an unwritten legislative intent from the aether, well hey that’s just Creative Writing 101.

        1. Originalism is simply that branch of textualism which prefers the original meaning of the text, to the current meaning.

          Which original meaning? There’s the rub. Does the ban on cruel and unusual punishment ban only punishments that were cruel and unusual at the time of the framing, or is it a principle we are allowed to apply in the way that makes sense to us today? Neither interpretation changes the meaning of the phrase. Could the courts conclude, based on ample evidence, that extended solitary confinement, for example, is banned?

          1. Unless we develop a taste for blinding people with a hot iron or dismemberment then the eighth amendment is a perfect place for the application of originalism. We can easily determine what was considered cruel and unusual at the time of the framing and that can be banned forever. The state legislatures and the feds are free, however, to ban solitary confinement if they wish without running afoul of the Constitution, just as some have done with capital punishment.

            1. Well, you can argue that that’s the meaning, but that’s circular. You’re saying “That’s what it means because I think that’s what it means.”

              I think it specifies a principle for punishments, which may apply in different ways going forward.

              For one thing, how do new penalties, unused and maybe unimagined at the framing fit? Is anything permitted, since the only things barred are those that were barred at the time?

              For another, suppose we learn that solitary confinement, to repeat the example, is in fact much more harmful than was thought. Why then wouldn’t it be barred?

              1. I would go farther. The word “unusual” specifically calls for living constitutionalism. How would one ever determine “unusual” except with respect to actual practice?

            2. The state legislatures and the feds are free, however, to ban solitary confinement if they wish without running afoul of the Constitution, just as some have done with capital punishment.

              But we do not subject constitutional provisions to the whim of legislatures. If something is cruel and unusual it is banned, no matter what some state legislature thinks. .

              1. Yes but then “cruel and unusual” is defined by a judiciary not subject, directly at least, to the will of the people. If we don’t use original meaning then the terms are impossibly vague. We have to have a starting point and what was considered cruel and unusual at the framing seems reasonable to me. More or less what shocks the conscience of reasonable people now did so then as well. It doesn’t mean we can’t evolve from that, and we have two good ways to do so: laws and amendments.

          2. With regards to redefining what “cruel and unusual” means, have originalists ever applied originalism in this manner, or claimed that it should be? Because this is not the impression of originalism that I have seen. The originalism I’ve seen would say that a ban on cruel and unusual punishments means banning practices that are similarly cruel to past practices, not changing the definition of cruelty to include practices both past and present. The founders didn’t write “throw away this useless piece of parchment in 25-30 years after the next major technological revolution” and with good reason. The original principles are meant to be applied to our era and not the other way around.

            At least that’s my narcissistic definition of originalism.

            1. You aren’t wrong in general (that’s certainly what Scalia did in the thermal imaging Fourth Amendment case), but in the case of the Eighth Amendment, because originalists have tended to be law and order types, they have tended to favor neutering it instead.

              You have to understand there’s no such thing as originalism in a vacuum. It was a philosophy developed to render right wing results. (Now that doesn’t mean it always does. But that was the intention.) So it tends to get applied in a right wing way, at least unless the judge feels there is no choice to but to agree with the liberals in a particular case.

              1. They’ve neutered the 8th amendment? Well maybe if you are talking about excessive fines, but when it comes to cruel and unusual punishment not being able to watch Judge Wapner at 7pm would qualify in a lot of jurisdictions.

                The ninth circuit holds denying a prisoner a state paid sex change operation violates the 8th amendment.

          3. I believe I mentioned that no interpretative scheme could be completely determinate – originalism is no complete protection against ambiguity or vagueness. It simply offers more protection than other deliberately less determinate schemes.

            As for “cruel and unusual”, neither word is particularly precise now, and I have no reason to believe it was otherwise two hundred years ago. But on the timing point, I think it’s clear that originalism requires a hunt for the original meaning of “clear” rather than an itemization of the original expected application – ie the list of items that would have been thought to be examples of cruelty 200 years ago.

            Thus if we stipulate that “cruel” meant say “disproportionately and unnecessarily vicious or brutal” and that castration was not thought to be “disproportionately vicious or brutal” in 1791, that does not mean that castration can’t be “disproportionately and unnecessarily vicious or brutal” aka “cruel” in 2020. Likewise, being strapped to a chair and being forced to listen to three hours of Michael Buble was not a punishment – thank God – that anyone could have contemplated in 1791. But it would obviously be accepted as cruel now.

            I believe there was a case about whether whales were fish, in which the court determined that they were, because at the time “fish” was not understood in strict taxonomic terms, but as “critturs that swim in the sea.” That seems entirely consistent with original meaning. It doesn’t rely on whales being understood at the time of the legislation as one of the known items that could be listed as fish. It relies on the fact that whales are “critturs that swim in the sea.”

            En passant I’ll add that textually “cruel and unusual” is a conjunction. Mere cruelty is not enough. But if it were to be convincingly shown that in 1791 “cruel and unusual” was used as a term of art, not implying a conjunction, then fine.

            1. original meaning of “clear” should obviously be

              original meaning of “cruel”

            2. Thus if we stipulate that “cruel” meant say “disproportionately and unnecessarily vicious or brutal” and that castration was not thought to be “disproportionately vicious or brutal” in 1791, that does not mean that castration can’t be “disproportionately and unnecessarily vicious or brutal” aka “cruel” in 2020.

              This is pretty much my point. It’s a principle to be applied, using our brains. As is “due process,” “equal protection,” etc.

              1. I don’t believe anyone is suggesting brains be excluded from the process.

                But the process is to try to discern what the words meant at the time they were enacted into law. And some words and expressions are more ambiguous or vague than others.

                But if we take, for example, the expression “nor deny to any person within its jurisdiction the equal protection of the laws” – even though it’s on the vague side, we can still rule out some meanings as textually impossible.

                If it said “nor deny to any person within its jurisdiction the equal application of the laws” that would mean something different.

                Equal application of the laws must refer to the whole body of laws, whatever the subject matter. Equal protection of the laws can only refer to that part of the body of laws that protects people.

                Thus for example if a law were to charge income tax at a rate of 50% on the income of blue eyed people, but at a rate of 20% on the income of brown eyed people, that would be

                (a) a very silly law, but
                (b) not prohibited by the 14th Amendment

                for it is a law that does not protect. Instead it burdens and 14A does not prohibit laws which burden unequally.

                Never mind the case law, I’m referring to the text.

          4. bernard : Could the courts conclude, based on ample evidence, that extended solitary confinement, for example, is banned?

            I would think not. They might conclude, if they had ample evidence, that extended solitary confinement was “cruel”, but the fact of having ample evidence would, of itself, make it difficult to conclude that extended solitary confinement was “unusual.”

            And we require the conjunction of “cruel” and “unusual.”

            FWIW I think the alleged cruelty of “extended solitary confinement” is a very difficult argument, since its impact on different prisoners will be completely different according to personality. Some prisoners would pick solitary confinement in a heartbeat over communal confinement, if offered it. Some the other way about.

      3. ” Now because its fallen out of use many people take it to mean any income or profit. ”

        Yeahnope. They’re taking it to mean that solely because they’re groping around for any excuse to find Trump guilty of SOMETHING. Totally motivated thinking.

        1. There is no more motivated thinker on the internet than you, Brett.

      4. Kazinski,

        Take for example emoluments, which had a specific meaning of income derived from an office.

        What would you consider to be a violation of either emoluments clause?

        1. Take, for instance, those college professors who were getting paid on the side by Chinese intelligence.

          An “emolument” is when somebody supplements a position’s pay. NOT when the office holder engages in normal commerce, and derives an additional income from that.

          1. Even if the “normal commerce” involves the officeholder’s customer paying above-market prices, and the customer is in position to benefit from office-holder’s official actions?

          2. Actually, there is no bar to getting paid by two institutions, even if one’s in China. The issue is that those Profs hid/lied about it.

            Your distinction between normal commerce and benefiting from your position is hardly the bright line you paint it as, Brett.

            Conflict of interest – normal commerce, or barred (as it is for just about every attorney, doctor, federal employee, and government contractor)

          3. I accept it’s not at all clear, but I am inclined to disagree with Brett here. I think the words “of any kind whatever” imply that the preceding words are to be read in a wide sense.

            Thus I don’t see any natural limitation excuding “normal commerce.” If, say, the Queen of England wanted President Trump to cut and style her hair for her (for obviously he has a certain talent in that area) and he accepted a fee of ten guineas for the work, I don’t see why that would avoid being an emolument…of any kind whatsoever.” Even if that was a perfectly price for the work.

            If there was some special deal to pay above market rates, as bernard suggests, i don’t think that would make it any more an emolument. Though, depending on the circumstances it might make it a present. Or even a bribe.

            However, there are other words in there that are also quite important. Like “..Person holding any Office…” and “accept”

            Those words make it rather difficult, IMHO, to apply the clause to circumstances where something of value is received by some person other than the officeholder. Such as the officeholder’s wife, or son, or a corporation owned or part owned by the officeholder. For if the officeholder is not the actual recipient, it is hard to see how he can “accept” the emolument in question.

            From very distant memory, when the tax authotrities want to scoop up any kind of payment to anyone associated with the target of the tax, they usually have to write a pile of deeming provisions to treat the money as arriving in the target’s pocket. Since there is no deeming in the foreign emoluments clause, I think the goodies do have to land directly on the office holder, in a way that he can accept (or decline).

            So for example if Kaiser Wilhelm buys a fleet of warships from Trump Naval Supplies Inc, netting THS Inc a fat profit, causing The Donald to become wealthier by virtue of an increase in the value of his shareholding in THS Inc, that increase in wealth is not an emolument “accepted” by Trump. It is an incidental effect of the receipt “accepted” by TNS Inc. So I don’t think the FE clause is airtight in the way a tax provision would be.

            En passant, I’ll doubt that even if Trump Naval Supplies were an unincorporated business wholly owned and managed* by Trump, so that he received the money directly from Kaiser Wilhelm, in a way that he, personally, could decline to “accept”, I would still doubt that this sort of thing could be an “emolument.” Because – and I accept it’s unclear – “emolument” is used of payments for services, not for payments for goods. if you go into 711 and buy a can of coke, the money you hand over is not an emolument. Whereas if you go into the barber and pay for a haircut, that can be an emolument.

            But warship deals will usually contain a servicing or maintenance component, so we could probably call that bit an emolument.

            * “managed” generates an interesting conundrum. For if Trump has, on taking office, legally handed over the running of his businesses to Eric, for the duration of his Presidency, even if TNS is an unincorporated business wholly owned by Trump, and even if the receipt from Kaiser Wilhelm therefore goes directly into a bank account of which Trump himself is the beneficiary, it is very doubtful that Trump has ‘accepted” it, if Eric is the one with the legal power to decline it or accept it.

    2. “But it seems to me that in order to have a system of law at all, we do need a very high priority for determinacy. Without that, we’re just left with a huge dollop of judicial discretion.”

      Even if I were to agree with this in theory (and I don’t- Holmes’ “felt necessities”, etc.), it seems to have no place interpreting a document with vague terms like “due process”, “reasonable searches”, and “cruel and unusual punishments” in it.

      1. Unsurprisingly, I disagree. There are certainly vague and ambiguous expressions in the Constitution and so originalism cannot provide a perfect standard of determinacy.

        But sticking to the text provides more determinacy than not doing so. Thus “due process” about whether there’s a process and whether it has been followed. It is a protection against arbitrary procedure. It plainly isn’t about what length of sentence is just for a particular sort of crime, or whether such and such an activity ought to be treated as a crime. Because that’s nothing to do with process.
        If you simply hand wave “due process” into a general purpose “the results of a criminal prosecution must be just” mulch, you’re plainly departing from the words, which are about process.

        And “reasonable searches” is …. not actually what the Constitution says.

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

        Although “unreasonable” is rather a vague word, the opening words give quite a bit of specificity. If it said say “the government may conduct only reasonable searches” that might question whether the government could search its drivers license database for information about D. Esper, without first establishing that D. Esper was worthy of suspicion. But the actual words make it clear that it is only D.Esper’s person, house, papers and effects that are secure from unreasonable searches. Not the government’s own database.

        So arguing that originalism fails to deliver perfect determinacy is true but irrelevant. The point is ….. compared to what ?

  4. Handmaid’s tale here we come.

    As much as the left will try to tie this movement to Trumpism, the judges he has appointed are as far from Vermuele’s vision as you could get. Gorsuch and Kavenaugh won’t give it much traction, I’d say the justice he’d have the most luck with would be Roberts, and then probably Alito.

    1. Scalia would have been quite eager to join, I suspect.

      Vermeule’s is a strongly traditionalist Catholic stance. Pius IX would have been delighted by his essay.

      1. I doubt Scalia would agree. I think he is committed enough to his philosophies that he would stick his version of originalism. I could see Alito, who often criticizes originalism, adopting this form of judicial philosophy.

        1. Maybe.

          Bork?

          1. Honestly, Bork wasn’t really required reading in Law School so my familiarity with his jurisprudence comes from discussions of his confirmation hearings. Given that, it’s hard for me to truly know what his views would have been had he known this argument.

            In my mind, it’s only fair weather originalists who are basically behind originalism only if it supports their preferred outcomes who would be persuaded to abandon originalism for this.

  5. If you want to impose your personal moral philosophy on others, get elected to an office and get their permission. Persuade them that your way really is better.

  6. “There is much more in the whole essay, which asks progressives to consider how the living constitutionalism they favor can be adopted by conservatives and used against them.”

    In some of the can’t-keep-up backwaters, and for a time, sure . . . but there just aren’t enough vestigial clingers left in an improving and modern America — becoming even less backward, less white, less bigoted, less rural, less religious every day — to make this a serious risk.

    1. You’ve frequently posted words which imply, if not outright assert, that a “less white” US will be a less bigoted US. Surely, you realize that non-whites (however you might define that term) are just as capable of bigotry. For a specific example, consider this Volokh article: https://reason.com/2019/12/11/anti-semitic-propensities-by-race-according-to-the-anti-defamation-league/ . For another, look up the HuffPo article on Yusra Khogali, titled “Black Lives Matter Toronto Co-Founder Needs To Resign” (I’d link it, but apparently there’s an undocumented one-link limit in posts here).

      Perhaps you should critically re-evaluate your assumptions.

  7. Does anyone know Prof. Vermeule well enough to indicate whether he genuinely believes that popular opinion in the United States supports or will move toward his way of thinking?

    In other words, are his delusions confined to Catholicism?

  8. I continue to be unimpressed with those who use this guy as ammo against living constitutionalism.

    This guy is indeed the cartoonish legal realist ends-justifies-the-means intentional bad-faith liar the right likes to paint non-originalists as.

    Thing is, he’s not coming from the left. From what understand, he doesn’t have a lot of ideological allies on the right or the left in academia. His lunacy says little about either side.
    So to see this guy’s fascist/royalist horrorshow as a great opportunity argue, again, that the left is just as bad as he is? That says more about you than about living constitutionalism.

    1. He uses provocative terms like “subject” and wants right wing outcomes, whereas the left’s living constitutionalists use anodyne terms and want left wing outcomes. Otherwise the same.

      1. This guy admits he’s outcome-oriented.
        Living Constitutionalists on the left do not.

        So you’re back to ‘the left lies.’ Ho-hum.

        Left-wing outcomes? Like universal basic income? Single payer health insurance? Tons of outcomes the left wants that the Constitution does not contain.

        1. Sorry I should have said: “the left’s living constitutionalists use anodyne terms and deny that they want the left wing outcomes that they do in fact want.”

          Left-wing outcomes? Like universal basic income? Single payer health insurance? Tons of outcomes the left wants that the Constitution does not contain.

          Tons of outcomes the left wants that the Constitution does not contain, but will be discovered by judges if they can’t get them in the legislature.

          1. So you think all liberal judges are lying.

            I get that’s the doctrine on the right. I also think it’s unsupported delegitimization propaganda.

            Tons of outcomes the left wants that the Constitution does not contain, but will be discovered by judges if they can’t get them in the legislature.
            All those initiatives have been long desired and stymied, so what’s stopping the liberal judges? Maybe that your speculation is wrong.

            1. Lying is a bit strong. People see their preferences to be truth or righteousness. They want that to prevail. I didn’t even think this was controversial.

              As to your question about what’s stopping liberal judges. Conservative judges. This is what’s so f’ed up about our system right now; both sides want judges to legislate.

        2. “So you’re back to ‘the left lies.’ ”

          Of course the left lies. So does the right. So does the middle.

          Constitutional theories are always about getting your viewpoints and policy preferences enacted.

          1. Bob, you’re a nihilist. Not surprised you are the first to fully agree with this sophistic yahoo.

            The question is who else will develop a strange new respect for maximal judicial supremacy.

            1. Maximal judicial supremacy is a synonym for living constitutionalism. What would you expect to get if “it means what I say it means” is your standard?

              1. Your charactarization of living constitutionalism is wrong. Try talking to a living constitutionalist, not just right-wing cranks talking about them.

  9. I’m going to answer the questions you posed.

    1. What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)

    I find your first question confusing because this has been reality since the beginning of recorded human history. The law already legislates morality. Maybe you lawyers don’t agree, but that’s effectively what laws do. They ban practices deemed immoral and protect those deemed moral. Nobody is qualified to debate morality, but that doesn’t mean nothing should be done. Even if nothing should be done, that’s hardly going to stop humans from imposing their will.

    2. Assuming there is any judicial review left, what in judges’ training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.

    Not sure what your point is here. Judges already effectively do this by enshrining immoral laws behind procedure. To pretend that adhering to procedure is viewpoint neutral is silly.

    3. Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?

    The same thing that has always happened: conflict. Conflict is a normal part of human history and not something we should shirk from. Some differences cannot be reconciled. Whether we couch it in the law or present it through the receiving end of a gun, morality is when a group of people agree that something is bad and they force people to abide by their standards. You might think that laws and judicial review are preferable to violence, but that is biased by the privilege of our time. We are very lucky that most of the rules currently in force are non-violent, but not all of them are.

    I wish I could convince everyone too, but only those with delusions of grandeur believe they can really do it. The rest of us still understand innate human truths. Might doesn’t make right, but might makes. So you either impose your will upon the world or have it imposed upon you. To those courageous enough to impose, rules and standards are meaningless. They are nothing more than delays on the path to progress. We typically call such people revolutionaries and the LP should be taking notes.

  10. “moral-readings approach like Vermeule’s”

    All substantive laws are based on morals and judgments about morals. No exceptions.

    1. Hmm. Is that so ?

      Is a law that says that people should drive on the right hand side of the road based on morals or judgments about morals ?

      I accept that picking one side or the other is based on the idea that if the law fails to specify, there will be [judgment about facts] more accidents and that car accidents are [moral judgment] a bad thing.

      But there’s no moral reason to pick right over left.

      And if we move into the past, is the droit de seigneur a law based on morals ? i should have thought it is simply a law based on imposing the will of the powerful on the powerless, to benefit the powerful. I don’t believe it implies that the seigneur thinks deflowering the local virgins is a moral imperative. It’s more in the nature of fun.

  11. The main problem with originalism continues to be that it is based on a false premise, which is that original intent or original public meaning or original whatever is something that can be determined with any accuracy, or something that even exists at all. The framers and the framing generation that ratified the constitution had radically different ideas of what the words they wrote and ratified actually meant.

    Take the debate over the necessary and proper clause that arose upon Hamilton’s proposal to establish a Bank of the United States. Two framers and primary authors of the federalist papers, Hamilton and Madison, had two very different interpretations of what that clause meant, and what powers it granted the executive. And that was less than three years after the Constitution was ratified. Yet 240 years later we are supposed to formulate an originalist understanding of that clause that should bind modern jurisprudence?

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