Tag: adrian vermeule

The Problem with ‘Common Good Constitutionalism’


In 1980, Stanford Law School Professor Paul Brest wrote his famous article, “The Misconceived Quest for An Original Understanding,” in which he defined “originalism” as an “approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters.” Brest concluded that originalism failed to deal adequately with two fundamental problems: the multiple intentions of different parties, and the danger of constitutional obsolescence attributable to changed circumstances.

Brest’s skeptical view of originalism was quickly championed by other writers, most notably the legal scholar Ronald Dworkin, who advocated a “moral reading” of the Constitution. In his book Freedom’s Law, Dworkin treats the text as the basis for understanding key constitutional conceptions like liberty, equality, and dignity, which judges, lawyers, and citizens have to flesh out under some ideal normative theory.

This anti-originalist approach has generated a strong backlash from scholars like Georgetown’s Randy Barnett, who argues that the detour into moral theory gives modern judges carte blanche to read every fashionable idea into the Constitution, until different constitutional moralists have reduced the stature of the Constitution from the supreme law of the land into a pitiable Tower of Babel. Hence the constant originalist refrain that constitutional terms have to be interpreted in accordance with their established public meaning.

ACF PoMoCon #13: Very Online Conservatism


My series on new developments and developing writers in conservatism continues. Here’s my PoMoCon talk with Tanner Greer, who’s writing a book on America since 2003 for Tyler Cowen, about old conservatism’s Trump-shock and new, Very Online Conservatism’s Great Awokening shock. Tanner has an NRO essay criticizing Reform Conservatism while agreeing with its reformist intentions and time-honored purposes. He argues that older conservatives worry about politics, whereas newer conservatives seem to worry about the very ground of politics. The previous assumptions about institutions are upended, down to the family, so it’s no longer a matter of how should we be doing things, but who even are we!