On March 31, 2020, when the United States was on Covid-19 lockdown, The Atlantic published “Beyond Originalism,” a cerebral essay by the Harvard Law professor C. Adrian C. Vermeule ’90. The essay urges legal conservatives to abandon originalism, the dominant school of constitutional interpretation for the conservative legal movement, which posits that the Constitution should be understood according to the original intent of the Framers. Instead, Vermeule calls for “common good constitutionalism” — a new reading of the Constitution which promotes “legal strictures, possibly experienced at first as coercive” that ultimately “encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.”
Vermeule’s essay shocked conservative and liberal legal scholars alike. Prominent trial lawyer Robert Barnes described Vermeule’s framework on X — then known as Twitter — as “Orwellian.” Russ Roberts, a research fellow at the Hoover Institution, a Stanford-based conservative think tank, characterized it as “frightening” and indicative of the “road to fascism.”
Three days later, The Atlantic published two rebuttals to Vermeule’s essay by legal scholars G. Garrett Epps ’72 and Randy E. Barnett. Epps, a professor emeritus at the University of Baltimore and a former Crimson president, called common good constitutionalism “harmful and antihuman.” Barnett, a professor at Georgetown University, wrote that there appeared to be “something authoritarian in the water of Harvard Law School.”
Vermeule, usually an avid participant in online legal discourse, wasn’t there to see the firestorm. He’d given up social media a month ago for Lent.
Common good constitutionalism came at a turning point for the conservative legal movement, which had been steadily gaining momentum since it coalesced around originalism as its flagship legal theory in the 1980s. In his first term, President Donald Trump appointed 234 federal judges — and months after Vermeule published his essay, Trump would cement a conservative six-person supermajority on the Supreme Court with the confirmation of Amy Coney Barrett. Two years later, that majority overturned Roe v. Wade.
Against this backdrop, Vermeule argued, originalism is no longer necessary as a rallying point for conservatives. “Originalism has done useful work,” he wrote in the essay, “and can now give way to a new confidence in authoritative rule for the common good.”
Vermeule declined an interview, and did not respond to multiple requests for comment.
Over the past five years, common good constitutionalism has taken tenuous root in elite legal academia. It’s now beginning to find its way into courtrooms. But scholars remain divided on its potential to reshape the legal landscape — and whose “common good” it seeks to advance.
The problem with originalists is that they all follow a principle of “the framers meant whatever I want them to have meant.”
They have never asked themselves or academically examined the intended goals of the original Constitutionalists. As with christians, the works and their contexts are worse than meaningless, they are inconvenient, and so must be torn to shreds and twisted into knots to suit their own evil ends.
Virtually every state person in the history of the US is guilty here.
Like I'm sorry but abortion and gay marriage should have been passed as a law or constitutional amendment. Executive orders so broad they involve unilaterally declaring war on Korea or the middle east should have always been struck as unconstitutional and/or triggered a constitutional crisis.
The SCotUS being allowed to grant themselves the power to reinterpret the constitution to fit the moral standards of the day and unilaterally expand federal executive power to get things moving despite a weak congress was always a disaster waiting to happen.
Now when Trump says "I can do anything I want by EO" >75 % of the country is like "oh business as usual then, carry on nothing to see". It should be justification enough for blue states to secede, but instead they won't even politely tell ICE to fuck off. Your constitution has been unfit for purpose since the 19th century, and Trump declaring itself king is the only logical conclusion to his office having been granted supreme authority on all affairs by WWII - not his problem that his predecessors didn't try to test the limits of that power.
The framers through the constitution should be heavily revamped improved and rewritten every 20 to 50 years. Were they alive today they'd be disappointed with their efforts being treated as an immutable gospel.