Monday, September 26, 2022
Common Good Originalism After Dobbs
In 2020, Harvard Law School professor Adrian Vermeule first outlined his proposal for a jurisprudence of “common good constitutionalism” in an essay in The Atlantic. I initially responded with a friendly essay at the Claremont Institute’s American Mind site that applauded Vermeule’s “beneficial exercise in Overton window-shifting,” while nonetheless offering some objections due to the debatable theoretical compatibility of Vermeule’s proposal with our distinctly Anglo-American constitutional heritage. I also raised a concern on more tactical grounds of “that great Burkean virtue, prudence.”
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I enjoyed reading on common good originalism in contradistinction to conservative value-neutrality which is making concessions to the current regime's zeitgeist. After the Dobb's decision, there is a growing movement, at least in legal circles, to implement pro-populist morals and common good maximization.
ReplyDeleteI like what Josh said that the point of common good originalism is not simply moral neutrality, i.e compromise: which we see repeatedly with conservatives in our country, rather victory. A full implementation as Josh Hammer mentions would produce some interesting results:a complete border lock-down, abolishment of the separation of church and state. In essence, it would break out of the realm and language of jurisprudence into the realm of political and social vernacular. Perhaps this is going a bit further than many citizens would find to be comfortable so perhaps a gradual ramping up is necessary.
I am also looking forward to the recent election results in Sweden and Italy likely to move towards common good originalism whether the recent immigrants both legal and otherwise approve or not. Interestingly, Brussels has already determined they will attempt to vilify and control the results of populist pro-conservative elections in those countries like they did in Hungary.