My response to Adrian Vermuele's common-good constitutionalism is now up : "There is nothing subtle or surreptitious about the challenge common-good constitutionalism poses to originalism."
Really interesting hypothetical posed here, wherein right wing justices might say, gut the Voting Rights Act, bless racial gerrymandering in voting as non-justicable, or approve a discriminatory travel ban targeting Muslims
Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution, writes
“This wolf comes as a wolf,” writes ⁦⁩.
.'s response to Adrian Vermeule is one of the better ones since he recognizes that Vermeule isn't an isolated case but part of a burgeoning though still modest turn against originalism on the right.
As I wrote in this essay in : “There seems to be something authoritarian in the water of Harvard Law School.”
A very thoughtful response to Adrian Vermeule's "common good constitutionalism" proposal, from . Covers the rhetorical and political background, and the real challenge AV poses for both sides of the status quo.
"There is nothing subtle or surreptitious about the challenge common-good constitutionalism poses to originalism," writes
's Atlantic piece should be required reading for all those progressives who say originalism is unprincipled. (I just think it would produce bad results if always applied).
Unless I missed it, Vermeule didn't respond/hyperlink to 's critique in The Atlantic—probably because it (unlike many) was coherent.
God bless Randy Barnett
The interpretive methodology debate is why we should disempower judges
"There is nothing subtle or surreptitious about the challenge common-good constitutionalism poses to originalism," writes
"This theory would let legislators have debates about morality!" does not seem like a strong argument against it.
ICYMI: "There is nothing subtle or surreptitious about the challenge common-good constitutionalism poses to originalism," writes