HATING THE AMERICA THAT IS:

Adrian Vermeule's recent essay in the Atlantic sketches an alternative to originalism, which today is the dominant theory of constitutional interpretation amongst conservatives and the one associated with the Supreme Court justice after whom my law school is named. In its place, Vermeule proposes a "common good" paternalism that candidly enforces conservative principles about hierarchy, solidarity, and personal morality.

As provocative as this is, Vermeule nevertheless pulls his punches. Rather than arguing that conservatives should reject originalism, he might have argued that they must do so if they wish to advance a morally compelling argument. For originalism, after all, is simply another form of legal positivism, the doctrine that places a Chinese Wall between what is and what ought to be the law. Originalists are the children of John Austin (1790-1859), the English legal philosopher who defined the law as the sovereign's command backed by force. As a utilitarian, Austin thought that laws might serve the principle of utility or not, that is, they might be good or bad, but in either case they're still laws if enacted by the King-in-Parliament.

As a form of legal positivism, therefore, it makes no sense to say that courts should follow originalist principles, unless the alternative is expected to make things worse. And that is what originalism comes down to. Its plausibility as a rule that deserves to be followed rests on a rejection of its principal alternative--the left-liberal egalitarianism and libertarianism that informs much of our constitutional law--and an assertion that those are the only choices before us.

As such, originalism is necessarily a political creed that seeks to hide its politics. But as Karl Llewellyn noted, covert tools are never reliable tools. When the hidden motives are exposed, the originalist can be ridiculed as insincere, and that is what liberals have done in exposing his biases.

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