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Legal Theory

Forget originalism; some conservatives back ‘common-good constitutionalism,’ its embrace of strong rule

By Debra Cassens Weiss

February 19, 2025, 11:37 am CST

Adrian Vermeule, a professor at Harvard Law School, is an “ideological lodestar” among conservatives who are impatient with originalism—the idea that the Constitution’s meaning can be determined by its text and the founders’ intent, according to a story by the New York Times.

Vermeule, dubbed “the godfather of post-originalism” by the New York Times, argued in a March 2020 essay in the Atlantic that originalism has “outlived its utility.”

Vermeule instead embraced an approach that he called “common-good constitutionalism” that goes beyond originalism in incorporating conservative values. Common-good constitutionalism is based on the idea that government helps direct society generally “toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate,” he wrote.

The main aim of common-good constitutionalism “is certainly not to maximize individual autonomy or to minimize the abuse of power,” Vermeule wrote. Instead the aim is “to ensure that the ruler has the power needed to rule well,” Vermeule wrote.

Critics on the left side and the right side of the political spectrum criticized Vermeule’s essay. On the liberal side, Garrett Epps, then a professor at the University of Baltimore School of Law, said in an April 2020 article in the Atlantic Vermeule was arguing for “authoritarian extremism.”

Some judges are also expressing interest in Vermeule’s theory, the New York Times reports. Two federal appeals judges attended a 2022 conference on common-good constitutionalism. They are Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans and Judge Paul B. Matey of the 3rd Circuit at Philadelphia.

In addition, some footnotes in federal appellate decisions have referred to Vermeule’s book on common-good constitutionalism, according to the New York Times.

Vice President JD Vance is familiar with Vermeule. Earlier this month, Vance shared a social media post on X, formerly known as Twitter, by Vermeule that read: “Judicial interference with legitimate acts of state, especially the internal functioning of a co-equal branch, is a violation of the separation of powers.”

The next day, Vance posted: “Judges aren’t allowed to control the executive’s legitimate power.”

According to the New York Times, Vance is hinting at “wholesale ultra vires executive-branch impunity,” an idea that “is increasingly part of the Republican mainstream.”

Vermeule didn’t think that Vance went that far when he defended his comments in a Feb. 11 article in the Wall Street Journal.

Vance appeared to be referring to legal doctrines used by courts to determine whether they have jurisdiction to review executive action, Vermeule wrote.

“Judges often invoke the separation of powers to limit their own authority, to put certain classes of executive action off-limits from judicial review, or to shape and constrain the remedies they provide,” Vermeule wrote.

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3. 5th Circuit becomes ‘proving ground’ for…

Judiciary

5th Circuit becomes ‘proving ground’ for aggressive arguments by conservatives

By Debra Cassens Weiss

September 4, 2024, 8:59 am CDT

The 5th U.S. Circuit Court of Appeals at New Orleans has become “a proving ground for some of the most aggressive conservative arguments in American law,” according to the New York Times.

When the U.S. Supreme Court overturned the right to abortion in June 2022, for example, the 5th Circuit had teed the case up for Supreme Court review, the New York Times reported last week.

In the term beginning this fall, the Supreme Court has agreed to hear five 5th Circuit cases, including a decision challenging the regulation of untraceable “ghost guns” that are made with kits.

The 5th Circuit’s decisions have been “so audacious” that the Supreme Court overruled the appeals court seven times last term, according to the article.

Overturned decisions would have curbed access to the abortion drug mifepristone, would have allowed gun possession by domestic abusers, and would have allowed states to sue over U.S. social media pressure.

Six of the 5th Circuit’s 17 judges are appointees of former President Donald Trump, who appointed 54 appeals court nominees, the most of any president since former President Jimmy Carter, the article reports.

According to a article in the Texas Tribune, the 5th Circuit’s adoption of conservative positions, even when overturned, helps shift the debate to the right.

Decisions by the 5th Circuit “have the effect of taking legal theories that were off the wall and putting them on the wall,” said Steve Vladeck, a professor at the Georgetown University Law Center, in an interview with the Texas Tribune.

Even when conservative decisions don’t prevail, “the effect is to make these cases of national import and give credibility to those arguments,” Vladeck said.

Akhil Reed Amar, a professor at Yale Law School, told the New York Times that the 5th Circuit’s conservative opinions could stem partly from appellate judges jockeying for a nomination to the Supreme Court.

“If you’re MAGA and you think Donald Trump is going to win the election, you can be in the right lane or hard-right lane,” Amar said. “The hard-right lane is the better lane to be in if you want to get yourself nominated.”