DANIEL VAUGHAN: Common Good Constitutionalism failed the pandemic. Originalism did not.

December 12, 2022

On the legal right, there's a tempest in a teapot raging between a new school of thought versus the standard bearer. The new school of thought is called "Common Good Constitutionalism." Its luminaries are Adrian Vermeule, Josh Hammer, and Sohrab Ahmari. But while they seek to unseat originalism as the theory of choice on the legal right, they didn't realize there was a pop quiz.

That surprise test came in the form of the COVID-19 pandemic. Everyone from the far left to the far right had to figure out how to navigate the pandemic and argue about how to use government power. Unlike a traditional test, the pandemic pop quiz was pass or fail. Either your worldview dealt with the pandemic, or it failed.

Common good constitutionalists failed the pandemic quiz, and it wasn't even close. It took originalist judges and lawyers to rein in the excesses of government power from the pandemic. Common good constitutionalists sided with every big government overreach. Vermeule, Hammer, and Ahmari either had no critique or chose strategic silence.

CGC enters the fray, and the pandemic.

Ironically, the first real salvo in this debate got fired on March 31, 2020, at the beginning of the pandemic. The core argument is that judges must rule on what is defined as the common good. Vermeule said of his theory:

This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers' unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to "legislate morality."

The ultimate goal is a much more muscular judiciary, where the federal bureaucracy gets used to deliver "conservative victories."

Vermeule is a major supporter of the "administrative state," the massive bureaucracy of the federal government. Instead of weakening this bureaucracy, which is what most conservatives want, Vermeule wants to weaponize the alphabet agencies against liberalism to enforce conservatism by law.

In a vacuum, this theory may have merit to the average conservative. You're getting what you want, and the law reflects what you believe is the common good. The problem is that no theory gets to stay in that vacuum. All strategies look good on paper until you get punched.

Vaccine mandates: the haymaker.

The pandemic is the haymaker to the jaw that common good constitutionalists didn't see coming. And when forced to apply their beliefs to the pandemic, they failed.

Their primary failure was the vaccine mandates. If you recall, President Biden set out to use OSHA against those who refused to get a vaccine. If you weren't vaccinated, OSHA had the authority to threaten livelihoods across the country. When presented with this overreach, Vermeule agreed with the Democrats:

I see no objection in principle to the President's vaccine mandate, as a matter of political morality. The highest aim of just government is to promote the common good, and that surely includes, at minimum, our health, safety and well-being as a community.

When presented with the same question at the Supreme Court, originalists struck the law down. Because originalism isn't beholden to the power brokers around it, those wielding it can review abuses of power thoroughly.

Originalists save the day.

As Dan McLaughlin briefly defined it, "originalism is the idea that a law means what it is understood to mean at the time it receives the people's approval, and it stays that way until it is changed by the people's representatives. When the law is a statute rather than part of the Constitution, the same concept is called textualism. The words matter."

Originalists saw through the Biden administration's attempt to read broad authority in OSHA that never existed. While the pandemic was terrible and required a government response, that did not lead to overriding all other laws and rights. It took a cadre of originalist judges to halt that overreach. At the same time, Vermeule and the court's liberal justices supported the mandate.

The same is true of several other orders that impacted everything from religion to daily life. Common good constitutionalism supported the government overreach as individual rights got attacked. That's not a bug of common good constitutionalism; it's a feature. Deferring to bureaucrats and the executive branch is an outsized feature.

CGC failed the pandemic test.

Vermeule launched his broadside against originalism at the outset of a major pandemic. He didn't know it, but that was the pop quiz for the rag-tag of pundits comprising of common good constitutionalism. They failed that test. When the people had their rights stepped on, livelihoods threatened, and executive power growing more every day, the common good crowd had no answers.

Originalism answered the call and passed the test. The pandemic was not a paper exercise; it was real life. Originalism is also the legal theory that deconstructed and removed Roe v. Wade. Under a common good constitutionalism system, Democrats could easily re-instate abortion laws via mandate because they could call it a part of the common good.

Common good constitutionalism will have to start from square one. Failing your first test is a poor sign of what's to come in the future. If you're siding with Democrats in threatening jobs, that's not a winning political program for either the right or left.

" A free people [claim] their rights, as derived from the laws of nature."
Thomas Jefferson
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