The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
With admirable speed, Adrian Vermeule has already posted a somewhat extensive response to our review of his book Common Good Constitutionalism, calling us "The Bourbons of Jurisprudence" in a blog post at Ius et Iustitium.
For the most part our review can rest on its own. We may have more to say on further reflection, but for now we'll flag just a few clarifications, as readers trying to follow the exchange may have missed them.
First, Vermeule's post focuses on alleged defects in our interpretive approach. But the review is largely an effort to take his book and its arguments on their own terms; most of our criticisms would hold regardless of our own interpretive views. If we turn out to be wrong about interpretation, that doesn't show common good constitutionalism to be right.
Second, Vermeule alludes to something problematic in our jurisprudential views, which resemble those of H.L.A. Hart in focusing on current legal practice. As we see things, the practice that matters most is found in our legal system's higher-order commitments, not its day-to-day outcomes. And while we think Hart is mostly right (and that originalism is right, and that they're two great tastes that taste great together), we've noted that other jurisprudential theories may lead to originalism too—including natural-law theories, or even Vermeule's own theory, properly carried out. We didn't place these arguments front-and-center in the review, which is more about Vermeule's work than ours (see point #1). But we're not trying to hide the ball: for those interested in reading more, see the articles linked above. (We'll also post a draft of a new jurisprudence article, forthcoming in the Oxford Journal of Legal Studies, as soon as we can work out the licensing permissions.)
Third, Vermeule now describes our past work as "a particular and rather recondite academic version of originalism, one of perhaps a dozen such versions now floating about the academy." As we note in our review, if his real target is other versions of originalism, and not our "idiosyncratic views," we'd be happy to agree with many of his critiques. But the book claims to address all these versions of originalism at once—and, in particular, presents our work as being, "[a]t the level of scholarly justifications, the leading theoretical defenses of originalism today." Whether they deserved that praise then, or no longer do now, is for the reader to decide!