Critics Call It Theocratic and Authoritarian. Young Conservatives Call It an Exciting New Legal Theory.
Of course, hundreds of academic symposia happen every year at law schools around the country, and very few of them spawn movements that transform the federal judiciary. But the lesson of the Yale event was clear: If you want to understand the future of the conservative legal movement, don’t ignore the mundane academic conferences. If another legal insurgency was brewing in Cambridge, it couldn’t hurt to be in the room for it.
The origins of this potential insurgency are often traced to an essay that Vermeule published in The Atlantic in March 2020 under the headline “Beyond Originalism.” In that piece, Vermeule set the stage for his broader intellectual take-down of conservative legal orthodoxy. In the latter decades of the 20th century, Vermeule argued, originalism had been a useful political tool for conservatives, allowing them “to oppose constitutional innovations by the Warren and Burger Courts [by] appealing over the heads of the justices to the putative true meaning of the Constitution itself.” But following the rise of the conservative legal movement in the ’90s and 2000s, originalism had “outlived its utility,” becoming “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.” Instead of offering a bold vision of judicial power, originalism had mired conservatives in “tendentious law-office history and endless litigation of dubious claims about events centuries in the past.”
Vermeule coined the term “common good constitutionalism” to describe his alternative theory, and he was not coy about what it would entail. Unlike originalists and legal liberals, common good constitutionalists would not “suffer from a horror of political domination and hierarchy,” and they would display a “candid willingness to ‘legislate morality.’” In sharp contrast to libertarian conservatives, common good constitutionalists would favor “a powerful presidency ruling over a powerful bureaucracy.” On the Constitutional front, “The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters [would] prove vulnerable” to new challenges.
With the country freshly locked down by the pandemic, Vermeule’s article went viral — or at least as viral as a 2,500-word essay on academic jurisprudence can go. On the right, conservatives objected to Vermeule’s claim that originalism was nothing more than an instrument for advancing their political agenda. On the left, liberals seized on Vermeule’s critique as proof of the political agenda they had long claimed lay behind originalism.
On both the left and the right, commentators regarded Vermeule’s call for a new “illiberal legalism” with a mix of curiosity and suspicion. In a response that was also published in The Atlantic, University of Baltimore law professor Garrett Epps denounced Vermeule’s thesis as an argument for “authoritarian extremism.” Representing the right-of-center point of view, Barnett dryly observed: “There seems to be something authoritarian in the water of Harvard Law School.”
But Vermeule’s vision of a more muscular conservative jurisprudence did strike a chord with certain sectors of the right. In The American Mind, an online journal published by the Claremont Institute, the conservative legal scholar and prominent anti-abortion activist Hadley Arkes applauded Vermeule for “[having] the gall to say that there were principles in existence before the text of the Constitution was drafted.” A few months later, an anonymous conservative lawyer launched a blog called “Ius & Iustitium” to serve as a platform for debates over Vermeule’s theory. (The blog, which takes its name from the Latin word for “right,” has become something like an in-house publication for common good constitutionalists.)
The debate over Vermeule’s proposal really went into hyperdrive that summer, following the Supreme Court’s controversial decision in a case called Bostock v. Clayton County. In that case, the Court ruled by a 6-3 margin that Title VII of the Civil Rights Act — which prohibits discrimination on the basis of sex — also forbids discrimination on the basis of sexual orientation. The majority opinion was authored by Donald Trump appointee and Federalist Society darling, Neil Gorsuch, who justified his decision by appealing to the “original public meaning” of Title VII, a signature move of originalist analysis.
Conservatives were apoplectic. In a speech on the Senate floor, Sen. Josh Hawley (R-Missouri) warned the decision marked “the end of the conservative legal movement … as we know it.” Sounding a distinctly Vermeulian note, he added: “If you can invoke textualism and originalism in order to reach a decision [and] an outcome that fundamentally changes the scope and meaning and application of statutory law, then textualism and originalism and all of those phrases don’t mean much at all.”
In retrospect, Hawley’s speech may have veered into hyperbole, but at the time, it did capture a growing sense of frustration — even despair — among young legal conservatives who felt betrayed by Gorsuch’s use of conservatives’ favorite legal tool tactic to advance a liberal political goal.
“As a practical matter, a lot of young legal conservatives thought, ‘Why should we continue to support this project?’” said Joel Alicea, an assistant professor of law at the Catholic University of America. “There were a lot of younger legal conservatives who were more open to the idea of alternatives to originalism because they were so disappointed in the results that originalism had brought them.”
Surveying the field, many of those young conservatives found only one viable alternative: common good constitutionalism. Suddenly, Vermeule’s theory was looking a lot less like the ramblings of a grumpy law professor and a lot more like a roadmap for a movement that had lost its North Star.
Common Good Constitutionalism was pitched as Vermeule’s decisive follow-up to his Atlantic article, but when the book finally appeared in February of this year, it was viewed by many of Vermeule’s supporters as something of a letdown. Rather than expanding upon the incendiary claims that Vermeule had made in his Atlantic piece, the book offered a rather dry and academic exposition of Vermeule’s broader intellectual project, which he calls “the classical legal tradition,” or “classical law” for short.
The central tenet of the classical legal tradition is that the purpose of the law is to promote the common good of a political community — not, as small-L liberals argue, to protect individual rights and liberties. As Vermeule defines it, the “common good” describes the supposedly objective set of political conditions that promote “the happiness and flourishing of the community” — namely “justice, peace, and abundance,” which Vermeule updates for the 21st-century context as “health, safety, and economic security.” (During one of the panels at the symposium in October, Michael Foran, a scholar from the University of Glasgow, suggested that “bigoted views or preferences of the racist or sexist” are incompatible with a robust notion of the common good; Vermeule, notably, has not said anything so bold.)
When it comes to Constitutional and statutory interpretation, the classical legal tradition directs judges and other public authorities to read the written law in light of what Vermeule calls “ius” — an unwritten set of legal principles and moral norms drawn from the Western legal tradition, stretching all the way back to the time of the Roman Republic. Read in this way, Vermeule argues, the Constitution’s primary aim is to ensure that public authorities have “both the authority and the duty to rule well,” rather than to advance the “liberal goal of maximizing individual autonomy or minimizing the abuse of power.” In Vermeule’s account, originalism and progressive living constitutionalism both err insofar as they ignore ius, treating the Constitution as “a sort of law without mind,” as Vermeule puts it.