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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. Don’t give money to law schools unless they…

Law Schools

Don’t give money to law schools unless they teach originalism, conservative federal appeals judge says

By Debra Cassens Weiss

October 29, 2024, 12:17 pm CDT

“Anti-originalist” law professors dominate law schools, and they aren’t equipping students with the practical knowledge that they need to make originalist arguments, a conservative federal appeals judge said last week in a lecture hosted by the Heritage Foundation, a conservative think tank.

Judge Amul Thapar of the 6th U.S. Circuit Court of Appeals at Cincinnati said conservatives could spur change by withholding donations to the schools, report Bloomberg Law, Law360 and Reuters via the Originalism Blog. How Appealing links to the video.

Taxpayers can also play a role by demanding that publicly funded law schools stop “pursuing their own political agendas,” Thapar said, according to Reuters.

Bloomberg Law and Law360 highlighted this remark: “Make no mistake: Money talks. Only when the taxpayers and donors alike demand it will law schools start to change.”

Originalist judges interpret the Constitution based on its meaning as understood at the time it was written. Thapar, an appointee of former President Donald Trump, was on Trump’s U.S. Supreme Court short list.

Thapar said law professors at too many law schools tell their students that a court’s originalist analysis “is just a smokescreen for some nefarious political goal.”

The lack of training, Thapar said, means that lawyers are missing originalist arguments that could benefit their clients, according to Bloomberg Law and Law360.

“It’s amazing how many times my colleagues and I say, ‘If they only would have made argument X, their client might have had a chance,’” Thapar said.

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Law Professors

Is SCOTUS making it harder to teach constitutional law? Profs ‘depleted’ and taken aback by ‘velocity’ of change

By Debra Cassens Weiss

February 27, 2024, 3:10 pm CST

The U.S. Supreme Court’s “hard-right supermajority” is using the doctrine of originalism to overturn established precedent, making it difficult for constitutional law professors grappling with rapid change that they think is unprincipled, according to an article in the New York Times.

The New York Times spoke with several constitutional law professors, including professor Rebecca Brown of the University of Southern California.

“While I was working on my syllabus for this course, I literally burst into tears,” she told the New York Times author. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.”

“What feels different at this moment,” said Barry Friedman, a professor at the New York University School of Law, “is the ambition and the velocity, how fast and aggressively it’s happening.”

As an example, the New York Times pointed to the June 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, which found a Second Amendment right to carry a handgun for self-defense outside the home.

According to the New York Times writer, the decision “featured the right-wing justices playing amateur historians, cherry-picking and distorting evidence from decades or centuries ago in order to justify their existing opinions.”

Erwin Chemerinsky, the dean of University of California at Berkeley School of Law and an ABA Journal contributor, addressed the same topic in a March 2022 podcast. One of the guests was Jeffrey Abramson, a professor at the University of Texas who was teaching law students and undergraduates.

“I think we’re on the cusp of a disaster. I think we’re seeing almost a virtual collapse of the ability to teach con law as law,” Abramson said.

“I started this semester with Marbury v. Madison, as almost all of us do,” Abramson said. “I traditionally played devil’s advocate with judicial review. I didn’t have to. Before I had gotten 20 sentences out of my mouth, the students were already asking whether judicial review, both historically and today, serves any democratic purpose.”

Abramson also has students read a Franz Kafka story about a man from the country who finds a gatekeeper who won’t allow him to gain entry into the law.

“It’s a long story about whether there is a law inside that the doorkeeper is keeping students from getting into, or whether there is nothing in there, that it’s all a charade, it’s all a magic trick. They’re only doorkeepers and doorkeepers and doorkeepers.”

In the past, students believed in the law and thought that there was a difference between the law and its agents, who could be faithful or corrupt, Abramson said. But now, his students “share this vast cynicism” that there are only gatekeepers, and “there is no such thing as the law.”

Will Baude, a professor at the University of Chicago Law School, offers a different perspective at the Volokh Conspiracy, where he cited his presentation at a symposium that he has posted to SSRN.

There is a perception that teaching constitutional law is more difficult because the Supreme Court has been doing so many things so quickly. But the perception is wrong, Baude said.

The Supreme Court “has long been engaging in awe-inspiring power grabs,” he said, citing cases with liberal results on abortion, same-sex marriage, desegregation and the rights of criminal defendants.

“The court has always been making questionable calls in high-profile cases, likely for a mix of political reasons and genuine differences of opinion about the nature of the Constitution,” Baude wrote. “What has really changed is not that the court is newly imperial or newly lawless or newly political. What has changed is that many more folks inside the Ivory Tower have noticed and no longer see their values and ways of thinking represented as often by the court.”