By Eric Levitz
Senior Writer
New York Magazine
Adrian Vermeule would like to transform the United States into an authoritarian, Catholic theocracy. In an essay for The Atlantic, the esteemed Harvard Law School professor implores his fellow conservatives to abandon the “political expedient” of originalism, the legal doctrine that compels judges to interpret the words of our nation’s founding document on the basis of their intended meaning at the time that they were written. Instead, Vermeule argues that right-wing jurists should reinterpret the U.S. Constitution as a charter demanding the subjugation of infidels to “rulers” who share all of Adrian Vermeule’s views on God and good government.
This may sound like a caricature of the esteemed legal scholar’s thesis. But it is a faithful (if pointed, and contemptuously phrased) summation of Vermeule’s position. And some conservatives insist that it is no more extreme or authoritarian than the liberal consensus on constitutional interpretation.
Before rebutting the right-wing apologias for Vermeule, it’s worth examining his argument in a bit more detail. The scholar opens his column with a frank admission that the idea that constitutional disputes can and should be resolved by having a bunch of lawyers with no historical training ascertain the putatively objective, 18th-century meaning of the language in our founding document was always a tactical pretense for advancing conservatives’ ideological ends:
The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.
Therefore, Vermeule implores his fellow Christian theocrats to stop being polite and start getting real: The time has come for formulating a theory of jurisprudence that allows the religious right to impose its vision of the good on the American people, whether they like it or not. He dubs this constitutional theory “common-good constitutionalism.”