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02/25/2021

Dan McLaughlin on Josh Hammer on Common Good Originalism
Michael Ramsey

At NRO, Dan McLaughlin: Originalism Does Not Need a Makeover (responding to this essay by Josh Hammer).  From the introduction:

Newsweek opinion editor Josh Hammer argues at Public Discourse that conservatives should replace originalism with a new, refined judicial philosophy named “common-good originalism.” Hammer is a sharp guy, and one assumes that his is the best argument that could be made for this proposal. His argument is, however, unspecific in its critiques, vague in its proposals, unmoored from constitutional legitimacy, and unsound as strategy. That suggests that the problem is not the messenger, but the message.

. . .

Why complain about originalism? No other conservative idea has penetrated so far into both elite institutions and popular opinion in the past three decades than originalism has. Among all the elements of the post-Cold War conservative coalition, only gun-rights advocates have been arguably more successful in pressing their public-policy vision than originalists have, and the cause of gun rights has itself relied heavily on an originalist reading of the Constitution. Almost alone among conservative ideas in recent decades, originalism has compelled even its enemies in the liberal academy to contend on its turf, and has succeeded in staffing the power centers of the federal government with many of its adherents. Textualism has, if anything, been even more resoundingly successful, even among liberals.

. . .

So, what is Hammer’s grievance? What questions of American law have originalists decided wrongly? Amazingly, he identifies only one case, and it is a case involving the interpretation of a statute passed in 1964, in which three of the Court’s four avowed originalists at the time dissented. So, this entire dispute is about Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County. ...

From further along:

What are the rules of common-good originalism, and what are its constraints? Hammer frames his own standard as “intrinsically oriented toward substantive conservatism” and a “more pliable” aid to “a complementary populist-inspired conservative politics eager to exercise political power in the service of good political order.” That doesn’t tell us very much except that it is supposed to deliver outcomes we like. He offers, as the foundational text, the preamble to the Constitution ...

... [A]ppealing to the general purposes of government is a convenient sleight of hand to avoid discussing the specific powers and limitations of government. A judicial philosophy that invokes the purposes of the preamble lacks the language in which to criticize a differing view of what the “general Welfare” empowers the government to do.

And in conclusion:

But Hammer’s call for reworking the entire intellectual basis of originalism and textualism is suicidal as a practical strategy. It eliminates the appeal that originalism has to people who are not hard-core social conservatives: its intellectual rigor and grounding in popular legitimacy. That narrows the base of support already enjoyed by the conservative approach to law.

It also simply assumes, without experience or evidence, that expanding the discretion of judges will lead to more conservative victories rather than a rout of conservatives at the hands of the culture of the legal profession. This is the fallacy of Vermeulism, so named for Adrian Vermeule (whose work I’ve discussed here and here): The idea that unchecked, unaccountable, undemocratic discretion should be given to institutions in which left-leaning culture or personnel are dominant, in the hopes that someday, by some unspecified mechanism, they will come to be controlled by social conservatives. The cavalry will simply appear over yonder hill, and ride through the institutions. For my part, rather than engage in novel feats of ideological utopianism, I prefer to take the world as it is. That means defending the heritage of the American Constitution as a government of laws, not of men.