Adrian Vermeule’s recent essay in the Atlantic sketches an alternative to originalism, which today is the dominant theory of constitutional interpretation amongst conservatives and the one associated with the Supreme Court justice after whom my law school is named. In its place, Vermeule proposes a “common good” paternalism that candidly enforces conservative principles about hierarchy, solidarity, and personal morality.
As provocative as this is, Vermeule nevertheless pulls his punches. Rather than arguing that conservatives should reject originalism, he might have argued that they must do so if they wish to advance a morally compelling argument. For originalism, after all, is simply another form of legal positivism, the doctrine that places a Chinese Wall between what is and what ought to be the law. Originalists are the children of John Austin (1790-1859), the English legal philosopher who defined the law as the sovereign’s command backed by force. As a utilitarian, Austin thought that laws might serve the principle of utility or not, that is, they might be good or bad, but in either case they’re still laws if enacted by the King-in-Parliament.
Read Full Article »