Did the Conservative Legal Movement Err by Supporting Originalism?

Richard M. Reinsch II / May 16, 2022

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. 

After these two decisions, the response from many conservatives became, If this is what originalism cannot prevent in the case of Obergefell, or what it delivers in the case of Bostock, then we need better thinking.

Vermeule informs, “Originalism is now in a decadent phase in which the elaborate theoretical structure propping it up dominates the landscape of the American legal right.” Indeed, so discredited is originalism that a “truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.”

From whence does originalism’s weakness and intellectual deficiency stem? Originalism strives toward empirical and historical understanding of constitutional terms and clauses, and from this basis, aims to apply the original public meaning to a case’s dispute.

To be sure, disagreements over facts, understanding, and meaning frequently occur amongst originalists. But to originalism’s framework of investigation and analysis, Vermeule pronounces it inferior to the “common good” methodology because it eschews “normative assumptions and judgments.” This makes originalism “an illusion.”

We know this, Vermeule informs, because of legal theorist Ronald Dworkin, a doyenne of the progressive autonomy legal project who provided theoretical support to judges to conquer vast domains for individualism.

Vermeule opposes Dworkin’s autonomy project but he makes a distinction that enables his Dworkin adulation to go forward unabated. Dworkin knew that the law as such never provides the tools judges need to decide cases and write decisions. Something higher than the law must exist to orient it and make it pure. Vermeule’s project is to provide that legal transcendence with a vision of American constitutionalism rooted in classical natural law, of which more anon.

Originalism Indistinguishable From Progressives’ Living Constitutionalism?

Because originalism does not serve any vision of political morality higher than the Constitution, it “has no natural immunity against infection from without by whatever theory” that judges and lawyers make. Vermeule points to the Bostock v. Clayton County decision for his evidence.

The Bostock opinion is a tortured reading of the statute that ignored the public meaning of its terms by the legislature that approved it. The majority opinion elides the fact that its updated thinking about sexuality was not part of the statute, which includes “sex” as a biological reality but makes no mention of same-sex attraction or the indefinite extension of pronoun identities that now mark sexual orthodoxy in America.

Vermeule’s verdict is apt that “it is a strange originalism indeed that would be unanimously voted down by the enacting generation.”

But Vermeule neglects to mention that there was a vigorous originalist dissent in Bostock that condemned the majority opinion as a false flag version of originalism. Originalism, like many interpretive theories of the law, contains a multitude of disagreements amongst its adherents. That goes to its richness as a theory—the underlying agreements amongst its practitioners are deep, and so are the disputed conclusions.

Originalism, Vermeule contends, struggles to understand how to read the law because it has no moral conception that it serves. Originalism thus defaults to a libertarian or progressive originalism, as was on display in Bostock. Thus, “originalism (is) indistinguishable from progressive living constitutionalism.” What we need, Vermeule proclaims, is the classical legal tradition.

The “classical legal tradition” which “embodies the best of our own tradition,” articulates that “law should be seen as a reasoned ordering to the common good, the ‘art of goodness and fairness,’ as the Roman jurist Ulpian put it,” Vermeule writes.

More specifically, he states that the classical tradition sees law “in Aquinas’ famous definition—an ordinance of reason for the common good, promulgated by a public authority who has charge of the community.” The work of classical law is to read “the law of a particular jurisdiction (the ius civile) in light of the ius gentium (the law of nations or peoples) and the ius naturale (natural law), which the civil positive law is taken to specify or ‘determine’ within reasonable boundaries.” 

On the common good, he recurs to Aquinas: “The common good is, for the purposes of the constitutional lawyer, the flourishing of a well-ordered political community. The common good is unitary and indivisible, not an aggregation of individual utilities.”

The judge must ascend from the written law, it seems, to other forms of law on a regular basis. Vermeule later qualifies this by saying that the judge should largely stick to the written text because it has classical legal principles embedded in it, but the judge, if required for purposes of equity and justice, may have to look beyond the law.

As he states, “Law is ordered to the common good,” and, “Positive law based on the will of the civil lawmaker, while worthy of great respect in its sphere, is contained within a larger objective order of legal principles and can only be interpreted in accordance with those principles.” 

I sense the latter part of that formulation would perform much work in a Vermeulean world.

Claiming Classical Legal Theory Is Original Understanding of American Law

American lawyers might wonder what this has to do with our written Constitution. Vermeule answers that the classical conception of law “was deeply inscribed in our legal traditions well before the founding era, and was explicit in legal practice through the nineteenth century and into the twentieth century.” Its centrality to American law broke down in a period beginning before World War I and going into the 1960s.

Vermeule does not mention specific events, reasons, cases, policies, or politics to explain this breakdown in classical law, which he claims “is the original understanding” of the Constitution.

This omission seems lazy, making his argument more of a cocktail party gesture. Any scholarly account would provide a detailed case on this point, given Vermeule’s claim that classical legal theory is the original understanding of American law. And this haziness gets even fuzzier when we broadly consider the nature of the changes in American law from World War I through the 1960s. 

The centrality of those changes dismissed the rather fixed notion of federal power by giving us an expansive notion of the Commerce Clause, legitimized the redistributionist welfare state, dramatically weakened the congressional nondelegation doctrine, enshrined the administrative state’s sectoral regulation of the economy, remade our competitive federalism into a cooperative federalism, and turned the Fourteenth Amendment into a standing power to interfere with the police powers of the states to be self-governing on morals and religion.

This partial list of the significant changes that roiled constitutional law during this period might be what Vermeule would point to for his argument. What unites these many innovations is the belief that federal power united to regulatory expertise would lead America to greater progress in equality and social enlightenment. A nation defined by limitations on government power, competitive capitalism, decentralized government structures, and traditional morality would be led to different forms of governance and would have new mores and beliefs imposed on it.

Such was the progressive march through American institutions, a revolution conducted in many respects in the federal courts, and one generally dismissive of natural rights and natural law.

‘Common Goodism’ Favors Growth in Government Power

Apart from the critical question of legal historical accuracy, what differences, if any, would Vermeule’s classical legal method make here? Vermeule favors our expansive administrative state: “The centerpiece of our operative constitutional order, the administrative state, is structured and suffused by principles of legality that order it to the common good.”

He states quite clearly that administrative agencies must have the power to make law alongside their ability to enforce that same law and adjudicate violations of it. He favors the accession of police power to the federal government.

Vermeule favorably analyzes the decision in Kelo v. City of New London (2005) as a prime example of classical legal reasoning in contemporary jurisprudence. That infamous case involved a decision by the city of New London, Connecticut, to condemn private homes and replace them with a Pfizer corporation campus. Vermeule believes this is a just outcome of balancing public equity with property rights; it is “in the service of developing constitutionalism, a model of how judicial review should work.”

Many of us see it as rank cronyism infecting government to the detriment of small property owners whose rights should have been protected by the “public use” requirement in eminent domain. Vermeule says this is errant thinking about individual rights being protected from the government. And that’s really because it is all government: “Rights are always already grounded in and justified by what is due to each person and to the community. Adjusting them in light of the common good is to unfold their true nature and to identify their scope and limits, not to compromise or overpower them.” 

Suzette Kelo, who lost her small home in the service of Pfizer’s corporate good, would see the “adjusting” of her property rights as a power grab between government wanting revenue and a giant corporation wanting lowered taxes and favors from the government. If this is common good wisdom, then give me Lockean folly.

In short, Vermeule’s classical legal theory supports almost all the growth in government power during the 20th century and merely provides differing rationales from standard progressivism. Vermeule is a strong social democrat who is also at pains to demonstrate his environmentalism, which is also, we are told, a development of the principles of classical legal theory. Just so.

“Developing constitutionalism” is common good constitutionalism in action, so to speak. It “celebrates continuity with the enduring principles of the past; it recognizes change in applications only insofar as necessary in order for those principles to unfold in accordance with their true natures … ” 

You, like me, may think that sounds like a fair assessment of originalism and its work of applying the meaning of terms in the Constitution to the ever-changing realities of social, political, and economic life in America.

According to what principles does developing constitutionalism actually unfold? For that, Vermeule instructs us to look to principles of Catholic doctrinal development articulated by the 19th century cardinal, St. John Henry Newman.

To be sure, Vermeule differs on social conservatism from progressive court opinions and their philosophical foundation. He absolutely nails the theater of progressive individualism in court pronouncements. Those opinions require a victim finding justice against a villain who attempts to defend the old ways. It falls to the “progressive judge” who “instrumentalizes the law” to extend liberation, “in which ‘rights’ are continually ‘expanded’ to free an ever-larger set of individuals from unchosen obligations and constraints.” On Obergefell, Vermeule notes, forcing “a conspicuous conflict with the settled mores of millennia was, of course, the point.”

Even here, though, Vermeule’s natural law defense of marriage would seem to offer little to the strong originalist dissent in Obergefell. Perhaps he would have added precise form to why procreative marriage must be the legal standard in a republic, but it’s hard to see him improving on Justice Samuel Alito’s comment, “For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate.”

Vermeule cites this approvingly, noting, “To treat that feature of marriage as dispensable … was an attempt to break a traditional and natural legal institution by sheer force of will.” Agreed. But in almost a fit of spite, Vermeule next states, “In that ultimate valorization of will at the expense of the natural reason, Obergefell in particular and progressive constitutionalism in general are in deep kinship with originalist positivism.” 

That is an absurd rendering of the facts when we recall that four separate justices on the court authored dissenting opinions in Obergefell rooted in originalist premises that the Constitution did not require same-sex marriage. Their problem is that they were one vote short.

Rather than the “valorization of will,” much of what originalism has been attempting to do is rebuild the case for a regulated liberty under fundamental law. In this, originalism aims to rejuvenate separation of powers, federalism, and self-government, underscoring that the Constitution is not a mutable instrument. It has not looked necessarily to the natural law for its guidance but to the Constitution, which does not authorize the progressive project in any of its manifestations.

A Weak Case Against Originalism and in Favor of Classical Legal Theory

Vermeule’s caricatures of originalism are further offered in the service of a project he has weakly developed in this book. He fails to engage originalist scholarship other than a thin rendering of libertarian originalism. He does not consider originalist cases that have pulled back on progressive theory. Of course, many originalist successes chip away at unrestrained government power, and we have seen that Vermeule is quite comfortable with progressivism’s large government end game. Instead, he chooses to engage Bostock repeatedly as an example of unrestrained originalism.

Vermeule sparsely demonstrates how classical legal theory has been deployed in leading constitutional cases in our history. Is that because such evidence does not exist? He notes the cases utilizing classical legal theory: either in the majority in Riggs v. Palmer (1889) and U.S. v. Curtiss-Wright (1936), and in Justice Harlan’s dissent in Lochner v. New York (1905). 

Are these really framework cases for understanding American constitutionalism? To ask the question is to answer it.

Riggs involved a grandson who killed his grandfather and wanted to receive his inheritance promised to him by the will. The statute supported this reading, but the opinion appealed to Aristotle and other background principles of equity to stop the murdering grandson from receiving property under the will. Thus, the New York State court authorized itself to defeat a textualist reading.

Riggs, as Judge William Pryor noted in a speech responding to Vermeule’s book, was soundly rejected by state courts and legislatures in the years and decades after its publication. Textualism, it would seem, has sound roots in American legal history, contrary to Vermeule’s attempt to date it as a conservative backlash to the Warren Court.

The better reading of events is that textualist, originalist readings are much more of our history in almost lopsided fashion compared to Vermeule’s thin arguments to the contrary. Pryor’s speech builds on how judges in the early republic believed that intent and statutory terms were one and the same. He cites to Jefferson Powell, a legal academic, who observes that “Philadelphia framers’ primary expectation regarding constitutional interpretation was that the Constitution, like any other legal document, would be interpreted in accord with its express language.” Pryor also cites early legendary cases like Ogden v. Saunders (1827) and Calder v. Bull (1798), which relied on similar originalist foundations for their authority.

Apart from originalist readings evident in judicial authority in the early republic, much of Vermeule’s constitutionalism omits other fundamental considerations and sources that have defined American constitutionalism. He does not even consider Publius, state ratifying conventions, the Philadelphia Convention, the 1776 state constitutions, the Declaration of Independence, and other key sources. He has not made these seminal works of our constitutionalism his own in making a claim either for the historical rootedness of classical natural law nor how it fits and serves these documents.

Vermeule is at pains to defend an administrative state that’s key development emerged in the same timeframe that he also thinks the classical legal tradition was sloughed off. He does not attempt to reconcile why or how this occurred or what it means for his overall project.

At a minimum, I would have thought that Vermeule would have wanted to show that the administrative state in America is not the outcome of pragmatism, scientism, and the belief in the efficaciousness of arbitrarily defined power to achieve progressive goals.

He does not consider Publius’s framing of tyranny as the joint exercise in one set of hands of legislating, executing, and judging laws. And that is the work of our administrative state, the part of government that Vermeule believes is most in touch with the natural law. The part of government that issues more than 3,000 rules and regulations a year compared to 90-100 actual laws passed by Congress annually. Such a configuration of power is a terrible temptation to its misuse.

The current atrophy of legislative power by Congress is also left unremarked by Vermeule.

All of this leaves me to wonder if Vermeule has written a book about American constitutionalism or instead he is articulating a constitutionalism for a country that we do not inhabit?

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