The Founders' Constitution & its Discontents

The term “constitutional law” is in large part a misnomer. This is rarely discussed within the guild of the legal profession and heretical in the increasingly woke precincts of the legal academy, where the field of “constitutional theory” is a cottage industry. The late Lino Graglia, a law professor at the University of Texas for over 50 years, was fond of pointing out that “constitutional law” has very little to do with the Constitution. Beginning in the 1960s, most consequential Supreme Court decisions parsed a couple of clauses of the 14th Amendment dealing with “due process” and “equal protection,” if they cited the text of the Constitution at all.

The 14th Amendment—a Reconstruction-era provision added to the Constitution in 1868 to confer basic rights on the newly freed slaves—has been “interpreted” to protect abortion rights, same-sex marriage, welfare rights, LGBT rights, pornography, flag burning, procedural rights for criminal defendants, and much more. This is the unfortunate state of “constitutional law” today. The status quo has drawn criticism from both left and right. Into this fray, Adrian Vermeule wades in his new book, Common Good Constitutionalism (2022), an ersatz hybrid of progressive and pseudo-conservative sentiment.

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