Friday, March 25, 2022
Adrian Vermeule and Conor Casey have written an uncharacteristically pugnacious recommendation for a forthcoming article by Joel Alicea, The Moral Authority of Original Meaning. The primary thrust of Alicea's article is to provide "a natural-law justification for originalism grounded in the legitimate authority of the people-as-sovereign, authority that is necessary for achieving the common good." Alicea frames the paper as a response to Vermeule's argument, advanced emphatically here at MOJ, that originalism is "an essentially positivist approach." Judging from Vermeule's and Casey's response, Alicea's arguments have carried the day to the contrary.
In making his earlier claim about the essentially positivist nature of originalism, Vermuele acknowledged that some had previously defended the compatibility of classical natural law jurisprudence and original-law originalism. But he argued that combining originalism and common-good constitutionalism results in an approach that is "intrinsically unstable, because it attempts to combine an essentially positivist approach with an essentially nonpositivist one. These are oil and water ...."
My initial assessment of this claim about the incompatibility of originalism and common good constitutionalism was that it was wrong. After all, (1) common good constitutionalism just seemed to be another adaptation of the classical natural law tradition that, in comparison with other adaptations' emphasis on law's efficient and material causes (i.e., lawful authority and promulgation), placed greater emphasis on the final cause of law (i.e., for the common good of the community for which it is promulgated); and (2) Jeff Pojanowski and I had already established the compatibility of the classical natural law tradition with what we called original-law-ism, or original-law originalism. Our arguments complemented argumentation in a similar vein by Lee Strang, who had been expounding the compatibility of the classical natural law tradition and constitutional originalism before we published our contribution to this literature.
It seems my initial assessment was correct and that Vermeule has backed off the claim that originalism is "an essentially positivist approach." This latest blog post about Alicea's paper is the most recent indicator of this salutary development. (I'm not aware of co-author Conor Casey having previously advanced the same "essentially positivist" claim as Vermeule.)
Rather than press the claim that originalism is essentially positivist, Vermeule and Casey dispute neither that Alicea's approach is originalist nor that it is non-positivist. They argue not that Alicea is wrong, but rather that he has justified "uncontroversial generalities." They contend that what they call Alicea's "generic, lowest-common-denominator version of originalism" amounts to "thin gruel." More particularly, they say Alicea establishes only that:
[F]irst, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.
Vermeule and Casey assert that these two propositions of generic originalism are "what we take the classical legal tradition to entail." If the classical legal tradition is not essentially positivist, then neither is this generic originalism.
As for whether this generic originalism amounts to "thin gruel," that may be more a matter of taste than anything else. If Alicea's arguments are correct—and Vermeule and Casey do not dispute them—they exclude many non-interpretivist theories of the sort that proliferated through the 1970s, 1980s, and 1990s. (Believe it or not, young 'uns, that's how these arguments were once framed: "interpretivist" versus "non-interpretivist" theories.) Originalism's success in this regard may be why some theorists jumped off the non-interpretivist track and relabeled the previously non-interpretive aspects of their approaches as interpretive. If one believes that there's nothing that interpretation just is, then this amounts to little more than marketing the same old non-interpretivism under a different label. But whether interpretation is a distinctive activity with a distinctive object is a question for another day.
Vermeule has previously acknowledged the existence of nonpositivist originalism by sometimes more carefully limiting his criticisms to "originalist positivism."  It would be helpful to the cause of argumentative clarity if he would do this more consistently. In the light edits that he did for the book version of the MOJ post in which he made his "essentially positivist" claim, for example, Vermeule left that claim in. As a result, Vermeule was still insisting as of the book's publication that "views that attempt to fuse the common good with originalism ... are intrinsically unstable, because they attempt to combine an essentially positivist approach with the classical approach." 
It is a welcome development that the "essentially positivist" claim no longer appears to be the considered position of Vermeule or Casey. Their claim now is that the stability of any combination on originalism and common good constitutionalism depends on the substantive insignificance of any version of originalism that is compatible with common good constitutionalism. Evaluating that claim depends, of course, on the relative insignificance of posited law in the comparator version of common good constitutionalism.
In any event, Vermeule's and Casey's recognition of the incorrectness of treating generic originalism as "essentially positivist" is why I began by describing Vermeule's and Casey's post as an uncharacteristically pugnacious recommendation of Alicea's paper. They are in heated agreement with Alicea's titular claim about The Moral Authority of Original Meaning.