Dem
51
GOP
49
For the past 50 years, many conservative Supreme Court justices have adhered to a theory they call "originalism," which means that the Constitution now means exactly what it meant in the 18th century and that the actual words in the document are what matter, not some modern reinterpretation (except that the word "arms" in the Second Amendment seems to apply to modern AR-15s, not just 18th-century muzzle-loading muskets, which is what the founders meant). But a new idea has arisen that is starting to challenge that view. It is called "common good constitutionalism." It is not widely known yet, but it has captured the attention of many young conservative lawyers, some of whom are likely to be appointed to the federal judiciary by the next Republican president.
The best-known proponent of this theory, Harvard Law professor Adrian Vermeule, wrote an incendiary article in The Atlantic in March followed by a book on the subject. Both have attracted a huge amount of attention in conservative legal circles. In short, Vermeule thinks that the job of the government is promote the common good according to natural law. Written documents, such as the Constitution, play only a minor role in this theory. Individual rights laid out in those documents play an even smaller role.
Of course, a big question is: "What is the common good?" Is it better for women to be allowed to have paid employment or better for all of them to be mothers and housewives? According to whom? Vermeule's natural law principles tend to align well with the Catholic Church's. In practice, many adherents to common good constitutionalism are religious conservatives who believe natural law dictates their positions and that overrides the written Constitution.
One practical area where this new kid on the block differs from originalism is in the role of the Executive Branch. The founders clearly believed that the Legislative Branch—Congress—was really the major player since it got to pass laws, control taxes and spending, and declare war. The Executive Branch's job was merely to see that all of Congress' laws got enforced and the money it appropriated got spent as it had dictated. The same holds at the state level, where the Supreme Court is busy turning everything over to the state legislatures.
Common good constitutionalism supports a strong Executive who can do what is "right," without that pesky Constitution or other laws getting in the way. Many adherents of this theory believe the president has the power to ban same-sex marriage, abortion, and pornography, but also protect the natural environment, the laws be damned. They also believe in a more muscular judiciary, one that does what is "right," no matter what printed laws say. Critics say that it is just right-wing authoritarianism dressed up in a Roman toga.
This new theory is hot. Mario Fiandeiro, the editor-in-chief of the Harvard Journal of Law and Public Policy, says the debate between originalism and the common good constitutionalism is the debate raging on the legal right now. We are going to hear more about the battle in the future. (V)