Excellent Reads

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.