Friday, April 22, 2022

Ten Questions for Adrian Vermeule or How Scary is Common Good Constitutionalism?

By Eric Segall

A few weeks ago on this blog, I wrote a mini-review of Professor Adrian Vermeule's new book "Common Good Constitutionalism." At the outset, I stated my strong disagreements with Vermeule on important questions of women's and LGBTQ equality but also observed that his critiques of originalism, formalism, and right-wing attacks on the administrative state were thorough, smart, and extremely persuasive. I received pushback from many folks on the left terrified of Vermeule's alleged religious extremism but thought most of his work is for academics and little of it will actually matter on the ground anyway. 

I was probably wrong.

I engaged in a debate last Thursday on Originalism sponsored by the University of Cincinnati Student Federalist Society and the Cincinnati Lawyers Federalist Society Chapter. My sparring partner was a seasoned and extremely smart litigator, and the moderator was Judge John Bush of the Sixth Circuit, who had suggested we talk about Vermeule's work during the debate. I skeptically asked both the Judge and the lawyer if they thought common good constitutionalism had any valence or relevance for the students and lawyers in attendance. They both were adamant that it had. Additionally, over the last few weeks, I've noticed a huge uptick on social media both among academics and others talking about common good constitutionalism as well as more book reviews, essays, etc., on Vermeule's work. I also was recently invited to participate in a book group discussion among academics covering his work. 

Like I said, I was probably quite wrong about the limited reach of common good constitutionalism and my belief that Vermeule's excellent critiques of originalism and formalism can be separated from his moral and religious visions, which I find quite troubling.

Vermeule's book fails to directly address what courts and legislatures should do on many issues of equality and equity that most people feel strongly about. Moreover, because a significant aspect of Vermeule's critiques of legalisms correctly focuses on the lack of transparency resulting from a focus by judges on procedures not substance, here are ten questions of substance for Vermeule to answer. Given both the rancor about his work, and his statements on Twitter that his book does not support that criticism, I think these questions should be fair game so we know where he stands. I have provided my answers as well (for the record, I’ve invited him to come on my Supreme Myths Podcast and he has politely said neither yes or no). 

One last thing before the questions. I have never met Professor Vermeule but we have communicated often by direct message and I have enjoyed these engagements. This blog post is not meant to put him on the spot but rather to encourage him to engage openly and honestly with his critics. I hope he responds.

1) Do you favor as a matter of policy a federal ban on all abortions?

Segall: No.

2) Do you favor as a matter of policy legislation that would put women or doctors in jail for having or assisting with abortions?

Segall: No.

3) Do you favor the Court holding that fetuses should be treated as "persons" under the 14th Amendment?

Segall: No.

4) Do you favor a constitutional amendment recognizing fetuses as persons with equal protection and due process rights?

Segall: No.

5) Would you favor a constitutional amendment repealing the Establishment Clause?

Segall: No.

6) Would you support a constitutional amendment protecting sex/gender equality written as follows: "No person shall be denied any governmental benefit or privilege based on sex or gender absent a compelling state interest?"

Segall: Yes.

7) Do you believe Lawrence v. Texas' striking down of Texas' ban on consensual, private, gay sex correctly decided?

Segall: Yes, but under equal protection, not due process.

8) Do you believe states could constitutionally ban gays and lesbians from being teachers in public schools and if so, should they be banned?

Segall: No and No.

9) Do you believe states could constitutionally ban gay and lesbian couples from adopting children, and if so, should they be so banned?

Segall: No and No.

10) Do you believe elementary and secondary public schools should, if allowed to, have teacher-led prayers in classrooms?

Segall: No.

Academics often hold different views on a diverse set of controversial subjects. I have argued that it is often appropriate to separate out different aspects of an academic's legal scholarship. Most people disagree with me that the Court is not a court, but I have found receptive audiences for my scholarship on standing, the religion clauses, originalism, and even judicial review in general. But both Court scholars and media pundits have suggested that Vermeule is trying to hide his substantive vision behind his often persuasive critiques of originalism and living constitutionalism. He should take such suggestions seriously. He could start to do so by addressing the questions above.