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What Happens When The Right Starts Acting Like The Left About The Constitution
The Federalist ^ | May 1, 2020 | Nathanial Blake

Posted on 05/01/2020 6:32:46 AM PDT by Kaslin

Many on the left have accused originalism of being nothing but a cover for conservatives’ preferred policy outcomes, but Vermeule’s proposal illustrates how restrained originalists have been.

“The Republic” often alarms first-time readers. Not only is Plato’s dialogic style foreign to us, the character of Socrates makes bizarre and even wicked proposals as he outlines a supposed ideal polity, such as a communism not only of property, but also of wives and children. Many readers, including some philosophers, have taken Plato literally and seriously, and therefore condemned him as a proto-totalitarian.

Something similar seems to have happened in response to Harvard Law professor Adrian Vermeule’s recent “Beyond Originalism” article in The Atlantic. Vermeule argued for replacing originalism with “a robust, substantively conservative approach to constitutional law and interpretation … based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” In short, he wants conservatives to read their philosophy and policy preferences into the Constitution, rather than trying to abide by its meaning as understood when it was ratified.

That the legal left would hate this was a given, but the response from the legal right has been just as ferocious. David French called Vermeule’s ideas “Christian authoritarianism,” and writers at National Review queued up to criticize him. Even a self-described integralist writing in the American Conservative condemned Vermeule’s article.

Most of these critiques are correct. They may also miss the point.

Vermeule Demonstrates the Restraints of Originalism

As Vermeule’s critics point out at length, his program is unlikely to succeed, a point he is surely aware of, despite his occasional insistence that unexpected things can happen. It is possible the United States will become a confessing Catholic state, and it is possible philosophers might become kings or kings become philosophers. It is also possible Vermeule has become a crackpot fanatic dedicated to an improbable ideal — not the first Harvard professor to do so.

But perhaps he is less a Twitter Torquemada than a cut-rate Catholic Kierkegaard, the Dane who spent his time and money writing a series of religious and philosophical reflections under a series of pseudonyms that fooled no one. Plato created characters whose dialogue communicated more than can be said directly; Kierkegaard did something similar with his pseudonyms, but went further by becoming a character himself.

This is not to say Vermeule is insincere, but that his presentation and performance are meant to provoke and persuade beyond the explicit argument he presents. This interpretation is supported by some of the implications Varad Mehta picked up on in Vermeule’s piece, as well as Vermeule’s response to some of his critics.

Foremost among these points is that Vermeule demonstrated the legal left’s imperious approach to the Constitution more effectively than a multitude of originalist articles have. If Vermeule didn’t exist, originalists might have needed to invent him. As he sarcastically put it in his follow-up:

I am happy to inform the left-liberal critics that the piece was never actually intended to make a Dworkinian argument for reading the Constitution in light of moral principles of the common good. Rather it was intended to make a Dworkinian argument for reading the Constitution in light of moral principles of equality and freedom, as specified by the programme of the American Civil Liberties Union. … Somehow … the phrase ‘Equality and Freedom’ was everywhere replaced with ‘Common Good.’ That change inadvertently transformed the piece from a banal effort, safely mainstream within the legal academy, into a menacing harbinger of fascism.

As this acerbic commentary notes, Vermeule is simply proposing to repurpose the methodology the legal left has used for years, deploying the same approach in the service of a different moral vision. As Mehta notes, “Progressives have been embarked on a program of constitutional extremism for years. No one should be surprised to see conservatives start demanding one of their own.”

Vermeule’s enthusiastic endorsement of reading a specific moral viewpoint into the text of the Constitution shows what a right-wing version of the dominant leftist approach to the Constitution would actually be like; many on the left have accused originalism of being nothing but a cover for conservatives’ preferred policy outcomes, but Vermeule’s proposal illustrates how restrained originalists have been.

Remember That Originalism Is Defensive

At the same time, Vermeule has provided a warning to originalists of what might replace them if they go wobbly. Originalism promises a rule of law under which conservatives believe they can generally achieve their policy preferences via legitimate political means. But it may not take many betrayals by Supreme Court Chief Justice John Roberts, or by the new Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh, for a more aggressive approach to gain traction on the right.

Social conservatives in particular might conclude that the system, including elite conservative legal scholarship, is rigged against them, that “originalism” is just code for “libertarian legal theory,” and that they should just read their moral preferences into the Constitution like everyone else does.

This also reminds of the extent of the left’s judicial larceny and the impossibility of reparations for it. The left’s judicial coups have changed American culture in ways originalism cannot remedy. For example, even if the court were to vigorously uphold the government’s power to ban obscenity, would the public and its representatives favor such restrictions, or would Big Porn’s hold on something other than hearts and minds win out? Even overturning Roe and Casey would only return abortion questions to the states, many of which would voluntarily retain the abortion-on-demand regime the court had imposed on them.

This highlights that originalism is fundamentally defensive, developed in response to the revolutionary judicial assertion of the Warren and Burger courts. It may launch limited counter-attacks against the worst overreaches of the legal left, but it cannot even return to the status quo ante. This restraint is intentional, but it forces originalists to confront a perennial difficulty of conservatism, which is when and how to become counter-revolutionary.

Conservatism usually attains self-consciousness under threat and is therefore defensive. What it should do to retake the ground it has already lost is often unclear. Thus, Vermeule’s proposed common-good constitutionalism is attractive insofar as it resolves that dilemma by promising, well, everything. What couldn’t conservatives read into the Constitution if they adopted the left’s interpretive approach? But this would require conservatives to jettison their traditional mistrust of concentrating power, especially in unelected parts of government.

This unease will not be assuaged by Vermeule’s support for integralism, which is particularly unappealing to those of us who are not Catholic. To be sure, in a crisis like the Spanish Civil War, I’d rather be a second-class citizen in a Catholic dictatorship than dead at the hands of the communists, but fortunately I do not have to make that choice.

Nor is the dubious allure of integralism increased by its motley band of internet advocates. With a mix of petty feuds and performative fanaticism, integralist Twitter is often more off-putting than stimulating, though Vermeule at least sometimes has a sense of humor about it.

So what is Vermeule’s game? He’s not leading a serious challenge to originalism, let alone the broader left-liberal legal consensus. But neither is he only a Twitter gadfly like some of his fellow integralists. He is a clever man capable of intellectual depth and subtlety, particularly as a critic of mainstream theories and ideologies.

Perhaps his role is not so much a revolutionary as a jester permitted to persist in a usurper’s court, reminding the left-liberal powers-that-be of their crimes, and demonstrating to the conservative loyal opposition the limits they have accepted.

TOPICS: Constitution/Conservatism; Culture/Society; Editorial
KEYWORDS: 1stamendment; aclu; adrianvermeule; alinsky; brettkavanaugh; conservatism; constitution; gramsci; integralism; law; liberalism; neilgorsuch; originalism; scotus; supremecourt; theatlantic; twitter

1 posted on 05/01/2020 6:32:46 AM PDT by Kaslin
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To: Kaslin

Too many people have accepted the harassment and control of people by the power of the state and the use of modern technology in the name of the “common good”. The protections of the Constitution? In NJ , Democratic Governor Murphy is fond of saying that the constitution is not a suicide pact.

2 posted on 05/01/2020 6:42:30 AM PDT by allendale (.)
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To: Kaslin

I think what happens is that the tree of liberty gets watered again.

The left is mostly kids. They are like puppies “pretending to be tough” and not really hurting anybody (much) with their actions. They protest and then go home, smoke a joint and get laid by the person they met at the protest.

If the right gets violent, people die. If a single stray shot had been fired at the bundy ranch standoff, this country could have been changed forever. And no small number of people think it would have been for the better.

3 posted on 05/01/2020 6:49:22 AM PDT by cuban leaf (The political war playing out in every country now: Globalists vs Nationalists)
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To: Kaslin

The Kenyanesian Usurpation happens.

4 posted on 05/01/2020 6:53:02 AM PDT by Lurkinanloomin (Natural Born Citizens Are Born Here of Citizen Parents_Know Islam, No Peace-No Islam, Know Peace)
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To: cuban leaf

The left may be mostly kids, but they have many in positions of power such as Governors, judges, and congress.

5 posted on 05/01/2020 6:56:58 AM PDT by DownInFlames (Galsd)
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To: Kaslin


6 posted on 05/01/2020 7:02:31 AM PDT by sauropod (Quarantine is when you restrict sick people, tyranny is when you restrict healthy people.)
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To: allendale
...the constitution is not a suicide pact.

I find this statement to be so ambiguous that anyone could define it, far-left and far-right, for their own purposes.

I think the problem with governments, any type, is that they are the source of power and tend to attract to them people who lust for that power. And for too many, that power is never enough.

The next step in the American Revolution should be a government that is attractive to those who desire to serve their nation and people (not just mouth the words) and not those who want to be privileged overlords (power for me but not for thee).

How to accomplish that? It will take people much smarter than I...

7 posted on 05/01/2020 7:04:43 AM PDT by jeffc (The U.S. media are our enemy)
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To: DownInFlames

To be sure. However, they are not likely to shoot people en-mass. I’m really just talking about the rank and file folks.

8 posted on 05/01/2020 7:19:52 AM PDT by cuban leaf (The political war playing out in every country now: Globalists vs Nationalists)
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To: jeffc

Simple. Government is force. Force is not freedom.

Lansing Michigan attendees protesting the shut down will be countered today by the far left group “Refuse Fascism”. You can’t make this stuff up.

9 posted on 05/01/2020 7:35:53 AM PDT by griswold3 (Democratic Socialism is Slavery by Mob Rule)
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To: Kaslin
In 1994 the Warren Court - by unanimous vote - issued a diktat which overturned all prior American jurisprudence - the New York Times Co. v. Sullivan decision. The effect of Sullivan has been to drastically curtail the journalism cartel’s fear of libel suits by conservative politicians. This has led to the “fake news” “media” that we now know and loathe.

All jurisprudence prior to Sullivan held that libel law - exactly like pornography law - was not touched by the First Amendment. This is easily understood by reference to the word “the” preceding “freedom . . . of the press.”

“The” freedom of the press was freedom as it existed, and as it was limited in 1788.”

The reason for that is the fact that not only did the Federalists consider a bill of rights unnecessary (since the Constitution had nothing to say about Common Law, and thus did not overrule it), they understood that assaying to codify all the rights embedded in Common Law was a fool’s errand. They were not trying to modify the rights of the people - at all - when they passed the Bill of Rights. The entire motivation of the Bill of Rights project was to suppress - not court - controversy over rights and the effect of the Constitution on rights.

In effect the Federalists considered that the Ninth and Tenth Amendments should have been unnecessary but certainly were sufficient to cover that. But to assure the suppression of controversy over rights, the first eight Amendments “enumerated” (as the Ninth Amendment puts it) those rights which had historically been denied by tyrants. But those eight amendments were crafted not to touch any other rights such as the right not to be libeled (or, to make an extreme comparison to the Second Amendment, shot).

Justice Brennan’s justification for overturning that obvious original intent

". . . libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment”
is, from an original intent perspective, fatuous.

10 posted on 05/01/2020 8:30:12 AM PDT by conservatism_IS_compassion (Socialism is cynicism directed towards society and - correspondingly - naivete towards government.)
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To: allendale

“Too many people have accepted the harassment and control of people by the power of the state and the use of modern technology in the name of the “common good”. “

I told my wife i was going hiking today at ...... She said “that’s outside of the Govorner’s travel zone”. I looked at her like she was a secret STASI agent. She said “you’re one of THOSE people aren’t you?”. Yes.

11 posted on 05/01/2020 10:11:25 AM PDT by dljordan
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To: Kaslin

Sadly America has been becoming a country that can’t tell it’s right hand from its left for decades.

12 posted on 05/01/2020 10:52:17 AM PDT by Mastador1 (I'll take a bad dog over a good politician any day!)
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To: dljordan

Fact of life noted throughout recorded history: Frightened people succumb to authority. Right now most Americans are very frightened and are not objecting to the loss of their constitutional rights.

13 posted on 05/01/2020 10:56:03 AM PDT by allendale (.)
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To: dljordan

You need a new wife.

14 posted on 05/01/2020 12:23:52 PM PDT by packrat35 (Pelosi is only on loan to the world from Satan. Hopefully he will soon want his baby killer back)
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To: Kaslin
An indisputable fact.

15 posted on 05/01/2020 12:28:21 PM PDT by yoe (Want to HELP the Slave Trade and Drug Cartels in USA? Vote for a democrat........)
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To: packrat35

“You need a new wife.”

Great advice. We’ve been married 42 years. She has turned into her Mother and I’ve turned into her Father.

16 posted on 05/01/2020 1:54:09 PM PDT by dljordan
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