Problems With Vermeule, Common Good Constitutionalism

Abstract

I make seven criticisms of Adrian Vermeule's new book, particularly its inattention to issues of historical and theoretical detail:

1. The book's arguments that the framers were not originalists contradict each other.

2. The book blurs propositions about the general nature of law with propositions about the specific nature of the American Constitution.

3. The book misrepresents the argument from the Article VI oath to originalism about the American Constitution.

4. The book ignores or misrepresents critical details about the history of the Fourteenth Amendment, especially the first Justice Harlan's approach to it.

5. The book relies heavily on Ronald Dworkin's out-of-date Fourteenth-Amendment-based criticism of Robert Bork from 1990.

6. The book does not engage rigorously with the distinction between meaning and application made by what it calls a "model opinion," Euclid v. Ambler Realty.

7. The book ignores intermediate positions like those exhibited in US v. Fisher and Corfield v. Coryell.

Two appendices respond to co-authored pieces by Vermeule and Conor Casey in which they propose, for the purposes of criticism, blurring meaning with application, and in which they say that "closure rules" like the burden of proof for judicial review are "ius for originalists." A third appendix responds to Vermeule's argument that European judges' understandings of themselves as non-originalists should make us revise the standard definition of originalism.