Tuesday, June 7, 2022

Cline deends Vermeule from"Originalist-Cherry-Picking" - FedSoc Harvard Journal of Law & Public Policy

Timon Cline, writing in the FedSoc Harvard Journal of Law & Public Policy, rebuts 11th Circuit federal appeals court judge and prominent conservative  William Pryor's recent attack on Adrian Verneule's book Common Good Constitutionalism.

Cline-Originalist-Cherry-Picking-vF-1.pdf
by Timon Cline1 [Deputy Attorney General - New Jersey, and Westminster Theological Seminary]

For a legal theory self-professedly predicated on history and historical meaning, originalism is consistently bad at history. Originalists excel, however, at cherry-picking the record—ironic for a political strategy hatched to combat the Warren-era’s so-called judicial activism. Justice John Paul Stevens aptly and memorably identified this conspicuous selectivity of the originalist majority in his Van Orden v. Perry dissent.2 
In his assault on “living common goodism,” as he pejoratively refers to the classical legal tradition lately recovered by Adrian Vermeule and Conor Casey, Circuit Judge William Pryor is nothing if not a faithful practitioner of originalist historiography. 3 His recent Federalist Society speech, subsequently published in the Federalist Society Review [Against Living Common Goodism], is a representative instantiation of this impulse. Reason and National Review were predictably ecstatic, 4 as they were about his Heritage Foundation lectures last fall. 5

 In their response to Pryor, Vermeule and Casey intentionally sidestep some of the historical questions raised by Pryor.6 Indeed, Vermeule (rightly) makes clear in his book that while the American founders should be generally conceived as classical lawyers, his project is not predicated on any kind of filial piety as such.7 As Vermeule well knows, this is a low hanging, irresistible fruit for originalists
***
As Vermeule has insisted more than once against this persistent, presumptuous jab, interpretive method and institutional allocation are distinct inquiries. Pryor, like most originalists, melds them into one. But what common good constitutionalist are arguing is that as a heuristic, a governing political rationality and justification of authority, the common good should influence all law making, whether legislative or judicial.82 In fact, following Harlan (and Aquinas), Vermeule believes that “judges do and should broadly defer to political authorities, within reasonable boundaries.”83 The rub, however, is when it comes to tough cases. At that point, the originalist dutifully refers to the textual restraints imposed upon him—ius is subjected to lex, to the detriment of iustitia—whereas the classical lawyer recognizes the priority of the higher law whether manifested in statute, constitution, custom, or principles of natural justice preserved in the synderesis of all reasonable creatures. 84 Even if Pryor may claim Iredell for his camp, Vermeule may easily claim Chase and many others beside. If Judge Pryor really wants to put “living common-goodism” down, he will have to extend beyond the tired originalist cherry-picking historiography that requires little more of its proponents than citation of a “favorite founder.”85 

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