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🌊 Beyond the Constitution
Some conservatives are arguing that the Constitution alone can’t determine what’s legal
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By Max Frost
In March 2020, Adrian Vermeule – a legal scholar at Harvard Law School – published an article that rocked the foundations of conservative legal thought. Vermeule had a controversial belief: That the Constitution alone shouldn’t rule the courts.
For decades, conservative legal arguments have rested on “originalism” – the belief that the Constitution’s meaning was fixed at the time of its ratification and that judges should interpret that meaning rather than update it for modern times.
This libertarian-minded thought has dominated conservative legal circles for decades. It’s the theory championed by the influential Federalist Society and espoused by conservative Supreme Court justices. So entrenched has the thought become that even its many liberal critics feel the need to cloak their arguments in originalist phrasing.
As the liberal Supreme Court Justice Elena Kagan once said, “We’re all originalists now.”
Originalism’s critics were typically on the left, among people who argued that interpretations of the Constitution should be updated for modern times. Conservative jurists rejected this, arguing that it provided the grounds for “judicial activism” – essentially legislation by the courts.
Vermeule has helped turn this upside down.
In that 2020 essay, “Beyond Originalism,” Vermeule argued that the Constitution is not about protecting individual liberty.
“Constitutional law must afford broad scope for rulers to promote…peace, justice, and abundance,” he wrote. The court should not “be ashamed of strong rule” and should not “see it as presumptively suspect in the way liberalism does.”
Authority should be “exercised on behalf of the community,” he continued. “Not for the benefit of individuals taken one by one.” Rulers can take action “for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them.”
And rather than viewing themselves as constrained by the Constitution's fixed meaning, Vermeule said judges should interpret the Constitution to promote "the common good."
In today’s deep dive, we explore Vermeule’s beliefs, the traction they have, and whether he is transforming decades of conservative constitutional thought.
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Editor’s Note
Thank you for reading and we hope you are enjoying your Saturday mornings. Also, a special thank you to the brilliant legal minds who helped us edit this piece!
We’re curious if you enjoyed this story or if you found it too dense. Please let us know by replying to this email.
And if you’d like some other Saturday morning reading, find our five most recent stories below:
And just in case – for some strange reason – you’d like to keep reading, here are some reader replies to yesterday’s story on the rise of Nayib Bukele.
Winston from San Francisco wrote:
Bukele is the perfect example of what happens when a vacuum forms. Even if there are “elections,” “civil liberties,” and a "constitution," there is no freedom if there is no safety and security. The idea that he – by throwing 2% of the country in jail – crushed the country’s democracy and freedom is ludicrous. The question should simply be whether people lived better now or before. With a 95%+ decrease in homicides and a 90% approval rating, I think the answer is obvious.
Martin from Washington, DC wrote:
I find it ironic all the Americans who glorify Bukele when none would want to live under his thumb. Imagine what Tucker Carlson would say if the president could label him a gang member and throw him in prison for life without a trial. Bukele is at the peak of his popularity: Yes, he has stopped crime and restored safety to the streets of El Salvador. Yet he has done so without addressing the underlying issues, namely poverty, an ineffective state, and the drug trade. It’s only a matter of time before the rot re-appears. Then what’s he going to do – call the protesters gangsters and jail them for life?
And Elias from Mexico wrote:
People all over Latin America are calling for their own Bukele. He is the only one that calls these criminals evil and he holds the rights of the good citizens above them. He criticizes the left for caring more about the rights of the criminals than the human rights of the citizens. He calls out the left and their NGO's for failing to criticizes these criminals when they were terrorizing the country. Viva Bukele!
That’s all, enjoy your weekends!
–Max and Max