The Club for Growth recently put out a new policy handbook, entitled “Freedom Forward,” covering a range of issue areas, from tax to transportation to education. They graciously invited me to write the introduction to a unique chapter on originalism, which includes Eleventh Circuit Judge William Pryor’s seminal essay “Against Living Common Goodism,” originally published in the Federalist Society Review. In that instant-classic essay, Judge Pryor pushes back on a new approach to conservative jurisprudence advanced by Harvard law professor Adrian Vermeule, called “common good constitutionalism.”
Vermeule’s conceit, and that of the related “common good originalism,” is that originalism has failed to get the judicial results it promised the conservative legal movement, so we should largely abandon “value-neutral” process rules and join the Left in placing result-oriented thumbs on scales. In this vein, we should argue for judges to apply the “natural law” hidden behind constitutional texts, with a view to advancing that “common good.”
I find it ironic that such a critique gained prominence just as originalists finally—finally—achieved dominance on the Supreme Court, securing landmark rulings on subjects ranging from abortion and affirmative action to the scope of administrative power. Judge Pryor justly eviscerates this bizarre advice to change course right as the conservative legal movement attains so many of its goals. Then, as a bookend, or perhaps a lagniappe, Catholic University law professor Joel Alicea explains why originalism is actually consistent with natural law.
Continue reading the entire piece here at The Federalist Society
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Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.
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