In a recent article published in The Atlantic, Harvard Law School professor Adrian Vermeule says we should reject originalism in favor of his “common-good constitutionalism” as a method of interpreting the Constitution. I don’t know how many people read that magazine, or how many are paying attention to anything but “the virus,” but this proposal is nothing short of revolutionary.
I have written an extensive refutation of Vermuele’s argument in this Legal Memorandum.
Vermeule apparently accepts that judges decide which interpretive method they want to use, changing that method when they wish to change constitutional course. This brings to mind the statement by Governor (later Associate and then Chief Justice) Charles Evans Hughes that the Constitution “is what the judges say it is.” This is the opposite of how America’s Founders designed the judiciary to function in the system of government they established.
Alexander Hamilton wrote that the judicial branch exercises “judgment” rather than “will” like the legislative, or “force” like the executive. The power to control the Constitution by controlling its meaning, as Vermeule’s proposal requires, is as willful as it gets.
Thomas Jefferson wrote that proper interpretation requires “carry[ing] ourselves back to the time when the Constitution was adopted, recollect[ing] the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” Vermeule says that judges today can simply “read into” the Constitution their own principles or ideas.
James Wilson said that, in a republic like ours, the people “are masters of the government.” Vermeule writes that we “subjects” will come to “thank the ruler” for being an “inculcator of good habits” and shaping our beliefs and desires.
George Mason warned that allowing judges to control the Constitution’s meaning would allow them to “substitute [their] own pleasure for the law of the land.” For Mason, this was a dangerous consequence to be avoided; for Vermeule, it is the heart of his preferred system.
In Marbury v. Madison, the Supreme Court said of the Constitution that “courts, as well as other [government] departments, are bound by that instrument.” Vermeule’s proposal flips that on its head; the Constitution cannot bind judges if it means whatever judges want.
Vermeule defines originalism as “the view that constitutional meaning was fixed at the time of the Constitution’s enactment.” Then he goes off the rails, claiming that originalism was “developed in the 1970s and 80s.” That would be news to James Madison, who wrote that the proper guide for determining the Constitution’s “legitimate meaning” is “the sense in which the Constitution was accepted and ratified by the nation.”
Vermeule is not the first to see that the Constitution, and the rules and limits it sets for government, can be an impediment to achieving certain political goals. Nor is he the first to argue that the Constitution should be changed to make government more powerful so it can control more of our lives. America’s Founders saw it the other way around, that our liberty depends on “we the people” controlling the Constitution so we can use it to make rules and set limits on government power.