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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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For some academics, researching, writing, editing and publishing a scholarly piece of work can take months, if not years, of painstaking effort, diligent commitment and rage-inducing frustration. In December, Andrew Perlman, the dean of the Suffolk University Law School and the inaugural chair of the governing council of the ABA Center for Innovation, authored one in less time than it takes to watch an episode of the Game of Thrones prequel series House of the Dragon.

To be fair, Perlman had some help. Released Nov. 30, ChatGPT, a chatbot created by OpenAI and “is fine-tuned from a model in the GPT-3.5 series,” has made waves in a short amount of time for how responsive, sophisticated and realistic it is. ChatGPT can write a Shakespearean-style sonnet about whatever theme a user chooses, tell jokes and answer questions.

And it can help people write book reports, business reviews and academic papers. Perlman noted in a Dec. 5 paper, which is titled, “The Implications of OpenAI’s Assistant for Legal Services and Society,” that all he had to do was ask ChatGPT some questions and then publish the responses. He noted that the technology was not perfect, and at times, it was even problematic.

Nevertheless, it demonstrated the potential of artificial intelligence—especially when it comes to helping perform legal tasks. ChatGPT could be an upgrade over existing tools used by pro se litigants to answer questions, generate forms and file papers with a court. It could also do work currently performed by lawyers, such as conducting legal research and writing briefs. So should lawyers welcome this technology? Or should they fear it?

In this episode of the Legal Rebels Podcast, Perlman spoke with the ABA Journal’s Victor Li about the possibilities of ChatGPT to bridge the access to justice gap, help lawyers work more efficiently, and change the way that students learn about the law. He also talked about potential pitfalls and what ChatGPT users should be careful of.