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Ed Whelan on Josh Hammer on Common Good Originalism
Michael Ramsey

At Public Discourse, Ed Whelan (Ethics and Public Policy Center): The Unsoundness and Imprudence of “Common-Good Originalism”.  From the introduction:

The immediate aftermath of Justice Amy Coney Barrett’s appointment to the Supreme Court is a strange time to urge conservatives to repudiate Justice Antonin Scalia’s twin interpretive methodologies of originalism and textualism. But that’s exactly what Josh Hammer does in his recent Public Discourse essay, in which he proposes to bolster a conservative policy agenda with a substitute “jurisprudential framework” that he labels “common-good originalism.”

I’m very puzzled by Hammer’s piece. Let’s start with his critique of the “regnant ‘legal conservative’ status quo” that he properly associates with Justice Scalia. Under Scalia’s approach, the duty of a judge is to interpret legal texts according to their objective meaning at the time they were adopted. For constitutional interpretation, his approach has become known as originalism (or, more specifically, public-meaning originalism). In the field of statutory interpretation, it is typically called textualism. But it’s fair to refer to them both, as Hammer does, under the common rubric of originalism.

Hammer offers two arguments against Scalia’s originalism. First, he contends that it “was dealt a grievous blow in last June’s Bostock v. Clayton County” ... 

Hammer claims, second, that Scalia’s originalism is “a morally denuded, overtly positivist jurisprudence that is at odds with the broader Anglo-American legal tradition and belies our unique American constitutional order’s unambiguous prioritization of substantive ends.”

And on the second point:

Scalia believed that judging is distinct from legislating; that judicial interpretation is a craft that requires judges not to indulge their own moral or policy preferences; that lawmakers—the Framers and ratifiers of constitutional provisions and ordinary legislators—embed values in the Constitution and in statutes; and that judges properly give effect to those values in construing legal texts to mean what they say. I wonder how many of Hammer’s readers grasp that that set of beliefs is what he is dismissing as “a morally denuded, overtly positivist jurisprudence.”

Hammer is simply wrong when he claims that Scalia’s originalism, properly understood, “is at odds with the broader Anglo-American legal tradition and belies our unique American constitutional order’s unambiguous prioritization of substantive ends.” The very authorities that Hammer invokes in support of his common-good originalism undercut his claim. In his famous Federalist No. 78, Alexander Hamilton predicated the very existence of the power of judicial review—the ability, that is, of a judge to decline to enforce a statute on the ground that it violates the Constitution—on the proposition that judges must be neutral arbiters of legal meaning

In conclusion:

To be sure, there are plenty of reasons (not just Bostock) to wonder how consistently the originalist justices will coalesce in practice and especially how willing they will be to revisit wrong precedent. But I don’t see how declaring the need for a new conservative approach to judging is likely to help matters.

Agreed, but arguments such as Josh Hammer's (and related arguments by Adrian Vermeule) are important in illustrating the range of choices in constitutional interpretation.  The debate is often cast as between a conservative originalism and a liberal evolving constitutionalism.  But conservatives don't have to be originalists, and originalism isn't necessarily conservative.  On one dimension, the opposite of  liberal evolving constitutionalism isn't originalism; it's conservative evolving constitutionalism.  Originalism is an intermediate position that hopes to constrain both sides.