Monday, April 6, 2020

Michael Taggart, the late great New Zealand public lawyer, once described a colleague as ‘Schmitten’, a customarily brilliant way of expressing his puzzlement at how Carl Schmitt’s ‘dangerous mind’ seems so alluring to some Anglo-American lawyers.  I doubt that even Mike was capable of imagining the extent to which Adrian Vermeule, a prominent constitutional US lawyer, teaching at Harvard Law School, has not only been Schmitten, but has even surpassed his master in some respects with his essay in the Atlantic, ‘Beyond Originalism: The dominant conservative philosophy for interpreting the Constitution has served its purpose, and scholars ought to develop a more moral framework’.  

This article does not mention Schmitt. Its argument is presented as a conservative alternative to Dworkinian liberal constitutionalism different from and superior to the versions of originalism favoured by the right of the American legal academy. In a way the argument should appeal to those who have criticized originalists for using implausible claims about what as a matter of fact the legal meaning was at the time the Constitution was written as a disguise for a political agenda  for dealing with contemporary issues that no one at that earlier time could have envisaged. But in suggesting that conservative judges should now embrace ‘illiberal legalism’, a deliberate riff off Victor Orbán’s ‘illiberal democracy’, Vermeule advocates abandoning the Constitution altogether as an agreed basis for legal argument. 

It is significant in this regard that the Hungarian Parliament has just enacted a law, on the pretext of responding to the pandemic, that gives Orbán indefinite authority to rule Hungary by decree. As Kim Lane Scheppele commented in Verfassungsblog,  just prior to the enactment, ‘In short, it doesn’t matter what any law in Hungary says today. .., [I]f this pending bill become law, any existing Hungarian law could be overridden at Orbán’s whim’.  It is perhaps the closest legal analogue to Hitler’s Enabling Act of 1933, enacted by a thoroughly cowed Reichstag, that made his whims the source of all law and constitutional value.

Read the full article at the Verfassungsblog on Matters Constitutional