Adrian Vermeule - Conscience and Originalism in Constitutional Theory – Ius & Iustitium

By embracing originalism and campaigning against `judicial activism' today's conservative Catholic justices have put themselves in a box where conscience cannot override precedent.  Originalists must reach back to 1787 when a group of Enlightenment-influenced slaveholders and merchants crafted a compromise constitution which put their property interests in the driver's seat and had little to say about personal morality, God or family.

So the conservatives in and around the Federalist society are having a bit of agida.  For fifty years they have built their cadre around reversing Roe v. Wade.  Why? Not because of their "pro-life" vision.  Though they have allied with conservative Catholics ( the US Bishops by majority vote have declared it the "pre-eminent" moral issue of our time) there is a lot of fretting that the five Catholic conservatives and one close ally (Neil Gorsuch) will fall short of vacating Roe.  

It will be a black mark on the originalist movement says Josh Blackman,  if even with a super majority, they cannot toss the precedent on opposition to which their unity was built.  They may have to toss originalism in order to advance their agenda.

For "constitutional conservatives" the New Deal and the administrative state are the real target.  Abortion won them Catholic support but the Jesuit Francis's Catholic social agenda and the Church's movement to renounce capital punishment interest this crew not at all - not even the Catholics among them.

It is possible that we will see Neil Gorsuch and Amy Barrett take the moralistic stance and call for abortion to be outlawed nationwide as Gorsuch's doctoral mentor John Finnis has done in an amicus brief co-authored with fellow conservative Catholic voice Robert George.

Adrian Vermeule - a Harvard prof who a few years ago became a Catholic - holds no brief for originalism.  Like others around the conservative Catholic magazine First Things he embraces an idea called "integralism" which joins state and Church power.  Garrett Epps has denounced this as a dangerous proposition strongly evocative of Spanish Falangist theory.  That probably doesn't bother Vermeule who does not count himself as any sort of libertarian.  Might should make things right in his view.  - GWC

Gnostic Constitutional Theory – Ius & Iustitium

Posted on November 15, 2021 by Adrian Vermeule

A few brief thoughts in response to this interesting post on the Dobbs case by my esteemed colleague Steve Sachs. (I say nothing about Steve’s broader body of work, apart from the post). Steve writes that a failure to overturn Roe v. Wade would be an “extraordinary black mark for the conservative legal movement,” but would in no way damage originalism as such. After all, “[p]eople can call themselves ‘originalists’ and still be wrong about the original Constitution, just as they can call themselves ‘historians’ and still be wrong about history.” On Steve’s view, cited in the post, originalism is a standard that defines the rightness of right answers, not a decision procedure, let alone a foolproof decision procedure, for identifying those answers. It follows that originalism is untouched by any given misapplication of the standard, or even a long series of misapplications. “What kind of views of the Constitution do you hold, if you’d go look for new ones based on what some robe-wearing politician-approved bureaucrats say?… If you think originalism requires overturning Roe, and if it turns out that the Court’s self-described originalists still won’t do it, why conclude that originalism is lousy, and not that the Justices you’re mad at are lousy originalists?”

Even the committed originalist might start to have doubts, however, about a standard that is applied incorrectly even on a question, the validity of Roe v. Wade, that conservative originalists have repeatedly described as surpassingly easy—and what’s worse applied incorrectly by the very jurists who have been handpicked by the conservative legal movement, over a number of years, with an eye to fidelity to originalism and to their stellar credentials. If the crème de la crème of the conservative legal movement are “lousy originalists,” who exactly can use the method properly, and who exactly should be sitting on the bench? A standard that provides unreliable guidance even to those trained for a professional lifetime in its use might justly be suspected of being so vacuous, or manipulable, or simply so far out of accord with the true nature of the subject matter, as to amount to no standard at all. We have no trouble with this point in other walks of life. If someone said that all actually existing accountants were lousy at applying accounting standards, we might well start to suspect that either the speaker had a poor theory of what the standards require, or that the standards themselves are not fulfilling their role as standards. When Justice Gorsuch wrote the explicitly originalist opinion for the Court in Bostock, a number of originalist critics tried to defend the theory by condemning the man, saying that Gorsuch had simply done originalism wrong. But if a Marshall Scholar and John Finnis student who wrote a whole book on originalism can’t do it right, it’s time to start wondering whether the fault lies in the theory.