Monday, April 25, 2022
There they go again. Law professors Adrian Vermeule and Conor Casey have co-authored an impressively lengthy, effectively footnoted, and aptly titled "Argument by Slogan" piece up at Harvard JLPP's Per Curiam. Its rhetorical framing brings to mind a critical and pointedly understated observation that Professor Richard Helmholz recently made in Marching Orders. In his largely positive review at First Things of Vermeule's compact call to arms, Common Good Constitutionalism, Helmholz expressed surprise at "the harshness of debate in this area of the law," and described Vermeule's outlook as that of one engaged in "a no-holds-barred sort of contest." "It does seem a shame," Helmholz observes, "that the argument about constitutionalism has become as shrill as it has."
Helmholz is likely right about the shrillness being a shame; he is definitely right about the shrillness being shrill. Consider how Vermeule and Casey frame their response to the published version of Judge William Pryor's address to the Federalist Society’s 2022 Ohio Chapters Conference, Against Living Common Goodism:
- "Judge Pryor's advocacy of public meaning originalism is infected by a horror of judgment—a deep-seated fear that absent originalism, constitutional interpretation will collapse into a moral free-for-all where judges arbitrarily inject personal preferences into law." [p. 4]
- "In the end, Judge Pryor's core commitment is no more than animus against Justice Brennan, which does not by itself yield anything close to a coherent view. Enmity is not a theory." [p. 4]
- "To understand Judge Pryor's commitments, one must begin with the animus that galvanizes his argument." [p. 5]
- "The consequence of this core enmity is simple: Judge Pryor's argument fails if, and to the extent that, it fails to advance a methodological argument that would exclude constitutional interpretation of which Brennan could heartily approve. If Pryor has failed even to exclude Brennanism, he has achieved nothing. And as we will see, his argument in fact does nothing at all to exclude Brennanism, and necessarily lacks the theoretical resources to do so. This is because Pryor's arguments suffice only to establish thin originalism, not thick originalism; and thin originalism is entirely compatible with Brennanism."
- "In the end, Judge Pryor's core commitment is no more than an ill-defined animus against a specific style of jurisprudence, Justice Brennan's style. But brooding animus does not make for clarity of thought. Indeed, as often happens, the passion overwhelms the argument and turns it into the very thing it aims to destroy. ... Enmity is not a theory. Slogans are not arguments." [p. 19]
If one wishes to take seriously the ideas at issue instead of being distracted by the framing and motivational attributions, there's not much one can do about this rhetorical state of affairs in the short term. One can attempt to absorb or deflect, though, and then at some other time put forward a more positive vision. So for now, I'll just gesture toward that famous debater's trick from the Gipper and combine it with the professors’ favored rhetorical technique of repetition: There they go again.