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08/02/2021

More from Josh Hammer on Public Good Originalism (with some Comments)
Michael Ramsey

At Public Discourse, Josh Hammer: In Defense of Common Good Originalism (responding to this essay in Public Discourse by John Grove).  From the introduction: 

John Grove of Law & Liberty has written the most thoughtful critique of common good originalism—the jurisprudential framework I have developed over the past year-plus, including here at Public Discourse and most recently in a long-form Harvard Journal of Law & Public Policy (HJLPP) essay—to date. Grove has proven himself to be a relentless critic of a more substantively and morally informed jurisprudence. In his Public Discourse essay, he takes direct and specific aim at common good originalism. His serious essay deserves a serious response.

It is first worth noting that Grove and I agree on more than he seems to realize. In the essay, Grove repeatedly emphasizes that ours is a “compromise constitution” that “emerged from a negotiated consensus,” such that we ultimately “have few guides” in interpretation other than “the text [all relevant bodies] ratified.” I concur in this general reading of the relevant history. However, in my view, that history cuts in precisely the opposite direction of the one Grove seems to think it does.

It is no great secret that the Founders vehemently disagreed among themselves on virtually everythingup to and including the very nature of the American Revolution itself—that is, whether it was a true liberal “revolution” in the Enlightenment rationalist sense of the term (the position of Thomas Jefferson, Thomas Paine, and their allies) or whether it was more accurately understood as a conservative “restoration” of the common law rights of Englishmen that Parliament and the Crown had begun to deny to the American colonists in the aftermath of the Seven Years’ War (the position of Alexander Hamilton, John Adams, and their allies). Many of the relevant debates, including the drafting debates at the 1787 Constitutional Convention and the great constitutional interpretive debates during the first few Congresses, such as the 1793-1794 Pacificus-Helvidius Debates between Hamilton and James Madison, must be understood as intellectually downstream of this overarching, higher-order philosophical disagreement.

The upshot is that many key constitutional clauses were indeed drafted as compromise provisions intended to win over the greatest number of prospective ratifiers among intensely warring intellectual and political tribes. When combined with the insight that many of these clauses, such as Article I, Section 8’s General Welfare Clause and Necessary and Proper Clause, are written in unmistakably broad, sweeping language, this ought to cut strongly in favor of a dispositional humility about an interpreter’s ability to definitively discern the most accurate original meanings of at least some of these clauses.

I largely agree with this assessment, and I think most originalists would as well.  The idea that originalism provides definitive answers to all constitutional questions is mostly a position ascribed to originalists by nonoriginalists.

I do have two preliminary questions about common good originalism based on this beginning.  The first is how indeterminate it perceives the Constitution to be.  While I acknowledge difficulties in finding the original meaning, I don't go to the extremes of originalist critics such as Eric Segall and Jonathan Gienapp, who find most important questions unresolvable by originalist analysis.  Josh Hammer, both here and in his longer piece, seems to elide this question.

A second question is -- assuming common good originalism thinks that a material number of constitutional questions can be resolved by originalist analysis -- whether its proponents think that the original meaning is binding, or whether the "common good" can justify departures from text with a tolerably clear original meaning.

Nonetheless, I think it's right that originalism can't definitively resolve all constitutional issues -- so I agree originalists must decide what to do when it can't. The essay continues: 

The key question is what an interpreter ought to do when he is faced with a text that admits of multiple plausible originalist interpretations. Positivist/historicist originalists tend to answer this question in at least one of two non-mutually exclusive ways. Some resist my Burkean appeal to interpretive humility, arguing on the contrary that we now possess the linguistic research tools that enable us to ascertain a clause’s “one, true, authentic historical meaning.” Others—such as Grove, it seems, and perhaps also Ed Whelan—forthrightly acknowledge the difficulties presented by the abstract phrasing and sweeping language of certain constitutional provisions, but maintain nonetheless that the only legitimate approach is to eschew all non-historicist considerations and simply do one’s exegetical “best” to determine the historically “right” answer.

My fairly modest claim is that, in these situations of reasonable interpretive ambiguity, judicial and political statesmen instead ought to err on the side of what I call the telos of the American regime. This telos is most clearly expressed in the Constitution’s common good-oriented Preamble, though the Declaration of Independence is of course also relevant.

... I believe the constitutional text is necessarily oriented toward certain substantive ideals of natural justice, human flourishing, and the common good, and that the Preamble serves as a particularly clear and compelling citation to ground that claim.

I wonder to what extent this approach is distinct from resolving ambiguities based on the "spirit of the Constitution," a position associated with originalist scholar Randy Barnett (and perhaps Chief Justice Marshall).

In addition, I think the dichotomy advanced above misses a mainstream originalist view that when a judge finds the original meaning too ambiguous to resolve satisfactorily a particular dispute, the appropriate resolution is to defer to the political branches. (For example, see here from Richard Kay; I think it is also Ed Whelan's position). That approach seems to me to accord more with "interpretive humility" than does the idea of trying to identify and impose a telos of the American regime found in the Preamble.

(Thanks to Mark Pulliam for the pointer.)