By Eric Segall
A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway.
I was probably wrong.
I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk about Vermeule's work during the debate. I skeptically asked both the Judge and the lawyer if they thought common good constitutionalism had any valence or relevance for the students and lawyers in attendance. They both were adamant that it had. Additionally, over the last few weeks, I've noticed a huge uptick on social media both among academics and others talking about common good constitutionalism as well as more book reviews, essays, etc., on Vermeule's work. I also was recently invited to participate in a book group discussion among academics covering his work.
Like I said, I was probably quite wrong about the limited reach of common good constitutionalism and my belief that Vermeule's excellent critiques of originalism and formalism can be separated from his moral and religious visions, which I find quite troubling.
Vermeule's book fails to directly address what courts and legislatures should do on many issues of equality and equity that most people feel strongly about. Moreover, because a significant aspect of Vermeule's critiques of legalisms correctly focuses on the lack of transparency resulting from a focus by judges on procedures not substance, here are ten questions of substance for Vermeule to answer. Given both the rancor about his work, and his statements on Twitter that his book does not support that criticism, I think these questions should be fair game so we know where he stands. I have provided my answers as well (for the record, I’ve invited him to come on my Supreme Myths Podcast and he has politely said neither yes or no).
One last thing before the questions. I have never met Professor Vermeule but we have communicated often by direct message and I have enjoyed these engagements. This blog post is not meant to put him on the spot but rather to encourage him to engage openly and honestly with his critics. I hope he responds.
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