In an in-depth essay part of a symposium for The American Mind, James Wilson Institute founder and director Professor Hadley Arkes offers measured praise of Harvard Law Professor Adrian Vermeule for his criticism of Originalism in The Atlantic.  Professor Arkes argues that Professor Vermeule, in his promotion of a “Common Good Constitutionalism,” draws on a strong American tradition of appeals to transcendent natural law principles for resolving constitutional questions. However, Professor Arkes criticizes Professor Vermeule for developing a conception of the common good that is too abstract, rather than one that directly addresses the most pressing moral questions of twenty-first century American life. Professor Arkes sees the issue of transgenderism in Harris Funeral Homes v. EEOC as a looming test case for the question of whether Originalism divorced from moral reasoning can respond adequately to the challenge. He also wonders if Vermeule's "Common Good Constitutionalism" can address these specific substantive issues.

Some quotations from the article:

“...Vermeule’s appeal to an understanding shared by the founders was treated by his critics with derision, as a venture quite beyond any notion of ‘law’ we take seriously.”

“...it simply becomes necessary, at so many turns, to appeal to those principles that were there before the Constitution as we try to apply the Constitution sensibly in the cases coming before us now.”

“My own concern, then, about Vermeule’s hoisting of the ‘common good’ as a banner is that, with all of its uplift, it rises to a loft of abstraction. Vermeule hints that his version of jurisprudence could make a notable difference on ‘free speech, abortion, sexual liberties, and related matters.’ But it isn’t evident on the surface just how the substantive arguments would unfold on these questions as they spring from a notion of ‘common good.’”

“As James Wilson reminded us, it was the very purpose of this government—in all of its branches—to secure those natural rights for which governments were formed. There is a moral logic bound up with the separation of powers that is widely overlooked: it works by cautioning legislators that the laws they lay down for others will be enforced by hands other than their own. And so they had best be cautious not to lay down laws they would not see enforced, with their full stringency, against themselves.”

“What has not yet been grasped is that the sneering at Vermeule in the name of Originalism has in fact confirmed his case about what is so wanting, so morally incoherent, in what has been offered to us, with high celebration, as ‘conservative jurisprudence.’”

Read the full essay here.