Sep 24Liked by Adrian Vermeule, Managing Editors- New Digest
Thank you for these essays. A question: the criticism of contemporary originalism seems completely correct. At the same time, isn’t Common Good Constitutionalism a ‘new originalism’ or a ‘traditioned originalism’? It doesn’t seem to abandon the conditions of the production of law as significant but looks also for a historical depth for a framework to interpret the law. In some ways it reminds me of Gadamer in his discussion of law in Truth and Method? Thank you.
Thanks much - I would say “distinguo” - there is a chastened sense of originalism that is just the effort to understand the aims of the civil lawmaker against the background of the presumptions and unchosen norms of the ius commune, natural and divine law. But that version is not exposed to the critique above.
Great comment. I see a lot of originalist methodology as pointing in the right direction (it sees law as an intentional deliberate authoritative act for some good for the community, as opposed to raw legal datum a Court can beam whatever novel meaning it and the judicial caste prefers), but the real dividing line between CGC and originalism is where natural law comes in. Is it always in force, serving as a rich backdrop of presumptions about how judges conceive of the role of the lawmaker (promote the common good) and the nature of positive law (a determinatio of natural law precepts); or is it relevant to interpretation only insofar as the positive law “includes” or permits it to be. We hold the former view, and I think it’s fair to say most originalists hold the latter.
Thank you for these essays. A question: the criticism of contemporary originalism seems completely correct. At the same time, isn’t Common Good Constitutionalism a ‘new originalism’ or a ‘traditioned originalism’? It doesn’t seem to abandon the conditions of the production of law as significant but looks also for a historical depth for a framework to interpret the law. In some ways it reminds me of Gadamer in his discussion of law in Truth and Method? Thank you.
Thanks much - I would say “distinguo” - there is a chastened sense of originalism that is just the effort to understand the aims of the civil lawmaker against the background of the presumptions and unchosen norms of the ius commune, natural and divine law. But that version is not exposed to the critique above.
Great comment. I see a lot of originalist methodology as pointing in the right direction (it sees law as an intentional deliberate authoritative act for some good for the community, as opposed to raw legal datum a Court can beam whatever novel meaning it and the judicial caste prefers), but the real dividing line between CGC and originalism is where natural law comes in. Is it always in force, serving as a rich backdrop of presumptions about how judges conceive of the role of the lawmaker (promote the common good) and the nature of positive law (a determinatio of natural law precepts); or is it relevant to interpretation only insofar as the positive law “includes” or permits it to be. We hold the former view, and I think it’s fair to say most originalists hold the latter.
As I read John‘s comment again, I think he was saying the same thing as we are in different language.
Thanks for this. Great and thought-provoking essays!
Thank you sir!