Amy Coney Barrett Is Right To Reject 'Common Good Constitutionalism'

Supreme Court Justice Amy Coney Barrett has been out on tour lately promoting her interesting yet flawed new book, Listening to the Law. During a recent interview with National Review‘s Dan McLaughlin, Barrett made a point about the current state of conservative legal thought that is worth a closer look.

Here is the relevant exchange between McLaughlin and Barrett:

NR: We’re now in a position where there are critics of originalism from the right — people who say: It’s too legally positivist. It doesn’t consider enough of the common good to achieve everything that the right wants to do. How do you think about or respond to those kind of critiques?

JUSTICE BARRETT: I don’t like this common good constitutionalism movement.

It feels to me like it’s just results-oriented, and I think that it has all of the defects that originalists critiqued when originalism first became a self-conscious theory in the 1980s…. I just think that common good constitutionalism is just kind of results-oriented jurisprudence from the right.

Barrett is wise to reject “common good constitutionalism.” The innocuous-sounding concept largely stems from the work of right-wing Harvard law professor Adrian Vermeule, who has urged conservatives to reject originalism and embrace “authoritative rule for the common good” in its place.

What counts as the “common good”? For Vermeule, it seems to mean aggressive government action in support of various right-wing goals, all to be carried out free from any pesky restrictions imposed by the original meaning of the Constitution.

Indeed, one of the chief reasons why Vermeule has come to oppose originalism is because he dislikes the fact that originalism sometimes leads the judiciary to place meaningful limits on government power. Vermeule would prefer to see such limits disappear.

“Under a regime of common good constitutionalism,” Vermeule has argued, “libertarian assumptions central to free-speech law and free-speech ideology” must necessarily “fall under the ax.” Furthermore, “libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.”

To avoid the libertarian policy results that he does not like, in other words, Vermeule would have the conservative legal movement abandon originalism and ignore the restrictions on government authority that originalism at least sometimes demands.

Personally, I have always smiled at that part of Vermeule’s argument, since it basically concedes that a certain number of libertarian results will occur if conservatives actually follow through on originalism. Vermeule’s attack thus seems like a pretty good advertisement for the soundness of the libertarian originalist position.

I would also just add that the libertarian outcomes that Vermeule dislikes—such as robust judicial protections for freedom of speech—are not bugs to be removed from our constitutional system; they are venerable and beneficial features of our constitutional system.

The glorious month of October is finally in swing, which means that it’s time for many of us to watch even more horror movies than usual. I tend to rewatch a bunch of my personal favorites during the Halloween season, a list that includes O.G. Universal monsters like The Bride of Frankenstein, John Carpenter’s indelible The Thing, Bruce Campbell’s The Evil Dead trilogy, and George A. Romero’s unbeatable Night of the Living Dead and Dawn of the Dead, to name but a few. What’s on your horror movie watch list this month?

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