Kontextmaschine

9th December 2022

Post reblogged from left unity with 383 notes

Critics Call It Theocratic and Authoritarian. Young Conservatives Call It an Exciting New Legal Theory.
‘Common good constitutionalism’ has emerged as a leading contender to replace originalism as the dominant legal theory on the right.
POLITICO
At the center of this debate was Harvard law professor Adrian Vermeule, whose latest book served as the ostensible subject of the symposium. In conservative legal circles, Vermeule has become the most prominent proponent of “common good constitutionalism,” a controversial new theory that challenges many of the fundamental premises and principles of the conservative legal movement. The cornerstone of Vermeule’s theory is the claim that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself” — or, in layman’s terms, that the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them. In practice, Vermeule’s theory lends support to an idiosyncratic but far-reaching set of far-right objectives: outright bans on abortion and same-sex marriage, sweeping limits on freedom of expression and expanded authorities for the government to do everything from protecting the natural environment to prohibiting the sale of porn. […]
On the one side of this debate are defenders of the conservative legal status quo, who made up the majority of the speakers at the Cambridge symposium. By and large, these conservatives continue to champion the time-honored legal principles of the right: the sanctity of individual rights, the importance of judicial restraint and the wisdom of limited government. Practically all of them continue to identify as originalists.
On the other side of the debate are those who, like Vermeule, want to push the conservative legal movement in a more radical direction. Partisans of this camp hail from different sectors of the American right, and they go by different names. (Some eschew the label of “conservative” for the edgier “postliberal” or “integralist,” two terms that are variously applied to Vermeule.) But they have cohered around a shared desire for a more muscular judiciary, one that sheds the guise of judicial neutrality in favor of a more assertive right-leaning posture. The members of this camp are almost uniformly critics of originalism — or at least of originalism as it’s practiced now — and many, though not all, are Catholic. They remain a distinct minority within the broader conservative ecosystem, but as the youthfulness of the audience in the Revolution Room suggested, their ideas have made particular inroads among young conservative lawyers and law students.

The funny thing about Vermeule’s bullshit is it’s all about allowing conservative legal elites to smuggle things past their own superegoes, it’s like “aha, if we think THIS way we can do THIS in a way we accept!” and has no mechanism for establishing hegemony in a sphere not already dominated by people who’ve agreed to think THAT way and accept it

Tagged: adrian vermeule common good constitutionalism