The James Wilson Foundation on Natural Rights and the American Founding

Commentary Roundup: JWI on Adrian Vermeule’s Common Good Constitutionalism

Professor Adrian Vermeule of Harvard Law School kicked off a lively discussion in the conservative legal movement with his provocative essay “Beyond Originalism” in The Atlantic. Since then, JWI staff, friends, and Affiliated Scholars have been regular contributors to the ongoing discussion of a “common good constitutionalism.”

JWI founder and director Prof. Hadley Arkes offered measured praise of Vermeule’s argument while criticizing its more abstract components in his first piece in the symposium. In a second piece, Prof. Arkes addressed the questions surrounding oaths to uphold the Constitution and how they bear on the debate about originalism.

JWI deputy director Garrett Snedeker praised Vermeule’s call for the re-introduction of the category of the common good, but warned against the substitution of our current judicial supremacy for a new executive supremacy.

JWI Affiliated Scholar Gunnar Gundersen first boldly declared that “originalism has failed,” then expanded his argument in a second article after responses from what he called “the originalist inquisition.”

Finally, JWI friend and legal commentator Josh Hammer offered a vision of a third way between common good constitutionalism and originalism. Calling it “common good originalism,” Hammer sees it as an option that maintains fidelity to the text while acknowledging the claim moral judgements have on constitutional interpretation.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790