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10/18/2021

Josh Hammer on Restoring the Common Law
Michael Ramsey

At Law & Liberty, Josh Hammer: A Common Law Restoration Serves the Common Good.  From the introduction: 

Holden T. Tanner, with a command of the relevant history and a sober-minded assessment of the current landscape, has shone a helpful spotlight on some of the recent pitfalls of the legal conservative movement. Some of us trying to reform that increasingly sclerotic movement have focused our recent intellectual energy urging a reorientation of both originalist theory and judicial practice toward a substantive conception of the common good and traditional principles of moral substance. Tanner, in reminding us of those non-originalist sources of law upon which would-be reformers of conservative jurisprudence might also draw—traditionalism, law and economics, and natural law—has performed a valuable and complementary service.

Tanner is at his best describing the nature of the “pyrrhic victory” for legal conservatives at large and of the “remarkable success of Antonin Scalia’s textualist jurisprudence.” Perhaps the most illuminating passage from Tanner’s essay is his characterization of what large swaths of legal conservatives have mistakenly imbibed as purported juridical orthodoxy:

Either a legislature provides a text, or the judge is at sea. When the judge is freed from text, there is nothing out there but raw preference and judicial will. This is the assertion we made to delegitimize living constitutionalism. The price we paid was our tradition of common law—the organic connection between American jurisprudence and natural law.

And from later on:

However, although I share Tanner’s desire, I foresee the actual operation of this restoration a little bit differently. And it is here where I see substantial overlap between Tanner’s call to arms and my own recent work, largely focused on constitutional and statutory interpretation, on what I call “common good originalism.”

Tanner, like many in the natural law-sympathetic camp, places a premium on “human reason,” which he views as the basis of the Roman law tradition that “helped fill in the gaps of English law.” ...

... The trouble, in short, is that “reason” unmoored from an underlying stable understanding of human nature and natural justice will inevitably tend to drift in whichever (often bad) direction a strong-willed human actor desires. Such an appeal to pure “human reason” in the year 2021 is therefore no recipe for sustained conservative success, and it bodes poorly as a direct conduit for a broader common law restorative project.

Something a bit more concrete and well-defined is needed. I have argued that one possible source is the Preamble of the U.S. Constitution, which I view as the “telos of the American regime” and which is unambiguously oriented to the common good of the American nation. The Preamble was drafted by the 1787 Constitutional Convention’s Committee on Style, which consisted of four Anglophilic, common law-revering conservatives (Gouverneur Morris, Alexander Hamilton, Rufus King, and William Samuel Johnson) and one quasi-nationalist moderate (James Madison). By its plain terms, it elevates to the forefront principles of natural justice and the commonweal that served as interstitial guideposts for the greatest English common lawyers, as well as the greatest U.S. Supreme Court justices and elected officials alike—jurists such as John Marshall and Joseph Story, and epoch-defining political statesmen such as Abraham Lincoln. The Preamble is intellectually downstream of the common law tradition, and it is intrinsically oriented to the substantive common good.