A Harvard professor thinks conservatives should abandon originalism as a method of constitutional interpretation. Dan McLaughlin writes:
Originalism has a long pedigree in American law, notwithstanding the fact that it was largely forgotten by the 1960s. That history gives it weight and force in our society, and should offer it the respect of those who value tradition. Alexander Hamilton argued that judicial review required strict fidelity to the constitution’s text. Abraham Lincoln was an originalist, and it is striking, if you re-read the debates over the Dred Scott decision, the extent to which all sides of the argument over whether black Americans could be citizens advanced their case in terms of what was understood at the time of the Founding. Vermeule may find Hamilton and Lincoln to be obsolete, but the structures they built have endured while the Catholic monarchies of their age have been swept away by stronger historical forces.
Vermeule styles his argument as “Beyond Originalism,” and I am reminded of Ronald Reagan’s words in 1964:
You and I are told increasingly we have to choose between a left or right. Well I’d like to suggest there is no such thing as a left or right. There’s only an up or down — [up to] man’s [age-old] dream, the ultimate in individual freedom consistent with law and order, or down to the ant heap of totalitarianism.
Vermeule is not going beyond, but down. He would trade the secure guarantee of written law for a pure contest of strength and will. And that is a contest conservatives should neither expect nor want to win.
[Dan McLaughlin, "‘Common-Good Constitutionalism’ Is No Alternative to Originalism," National Review, April 2]
