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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.