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Josh Hammer on Common Good Originalism
Michael Ramsey

At Public Discourse, Josh Hammer: Toward a New Jurisprudential Consensus: Common Good Originalism.  From the introduction:

I call my jurisprudential framework “common good originalism,” and I would humbly submit that it be adopted as conservatives’ new legal standard-bearer—a worthy complement to other simultaneously unfolding New Right/“new consensus” intellectual efforts.


[What is needed is] a flavor of originalist jurisprudence that is substantively conservative as such and not strictly positivist or value-neutral. Moreover, this substantively conservative hue of originalism must eschew the libertarian-infused “strict constructionism” that idolizes limitations on governmental power and individual-autonomy maximization. It should prefer instead a looser, “comfortable [jurisprudential] garment” that allows constitutional actors more ample room to pursue the traditional conservative political goals of justice, human flourishing, and the common good within their constitutionally allocated spheres of influence. Put more simply: The concerns of nation, community, and family alike must be prioritized over the one-way push toward ever-greater economic, sexual, and cultural liberationism. And this must be true not merely as a matter of public policy, but as a matter of legal interpretation.

There is nothing disreputable or otherwise illegitimate about a methodology of originalist constitutional interpretation—or, for that matter, statutory construction—that is intrinsically oriented toward substantive conservatism. On the contrary, progressive and libertarian strands of originalism, as they have been theorized, both already achieve this for their own respective political philosophies. Rather, it is conservative originalism—insofar as the term refers to the largely positivist, proceduralist, and judicial restraint-emphasizing mode of jurisprudence most closely associated with those like Scalia and the late Judge Robert Bork—that is the originalist family outlier, due to its lack of any intrinsic substantive orientation. To the extent that conservative originalism purports to elevate judicial actors as somehow truly morally neutral, even on the most rudimentary of civilizational issues, it is not merely a methodological outlier—it is also at odds with human nature itself, thus making it profoundly un-conservative.

Common good originalism turns this outlier status on its head by offering a genuinely, earnestly  conservative  jurisprudence. The originalism of Founding-era luminaries such as Alexander Hamilton, Chief Justice John Marshall, and Justice James Wilson was centered on the common good that is our true Anglo-American inheritance, going back to the English common law. It rejects both insipid positivism and hapless literalism—encapsulated by Cohen  v.  California’s  “one man’s vulgarity is another’s lyric” sophistry and Gorsuch’s Bostock casuistry, respectively. It seeks to rehabilitate from the fringes of contemporary originalist theory the exegetical legitimacy of ratio legis, or “reason of the law,” that necessarily undergirds our Constitution and all statutes enacted into law pursuant thereto. It emphasizes that it is impossible to truly understand the meaning of any legal text without grappling with the idiosyncratic teleology of that text. And while it recognizes and appreciates the importance of the Constitution’s carefully devised structural safeguards—namely, federalism and the separation of powers—it is also more pliable, contra Jeffersonian “strict constructionism,” and thus more suitable to a complementary populist-inspired conservative politics eager to exercise political power in the service of good political order.

(Thanks to Mark Pulliam for the pointer.)