Did Conservative Legal Movement Err by Supporting Originalism?

Adrian Vermeule leads a growing chorus of critics on the right heralding some form of common goodism as the locus of constitutional interpretation in the judicial system. In “Common Good Constitutionalism,” Vermeule proclaims that originalism fails as a matter of constitutional interpretation because it is a deeply insufficient account of law. This is a critically flawed interpretation because it ignores that our written Constitution does not depend on a range of natural law principles for its interpretation.

The immediate triggers for Vermeule’s departure from originalism are the Supreme Court’s decisions in Obergefell v. Hodges (2016), which declared a constitutional right to same-sex marriage, and Bostock v. Clayton (2020), which extended the categories protected by the 1964 Civil Rights Act to include “gender.” The Justice Neil Gorsuch opinion employed a textualist reading of the Civil Rights Act of 1964 to make it apply to gender, not just sex, regarding discrimination.

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