Common Good Originalism After Dobbs

Source: Wikimedia Commons

The following is a transcript of remarks originally given in Miami at the National Conservatism Conference JWI helped to organize in September 2022.

In 2020, Harvard Law School professor Adrian Vermeule first outlined his proposal for a jurisprudence of “common good constitutionalism” in an essay in The Atlantic. I initially responded with a friendly essay at the Claremont Institute’s American Mind site that applauded Vermeule’s “beneficial exercise in Overton window-shifting,” while nonetheless offering some objections due to the debatable theoretical compatibility of Vermeule’s proposal with our distinctly Anglo-American constitutional heritage. I also raised a concern on more tactical grounds of “that great Burkean virtue, prudence.”

I called my own proposed remedy to the stagnant status quo of the conservative legal movement, “common good originalism.” Since then, I have frequently written and spoken on this, most fully in a Harvard Journal of Law & Public Policy essay last summer titled, “Common Good Originalism: Our Tradition and Our Path Forward.” As the title implies, my argument is that this approach to constitutional interpretation was implicitly intuited and implemented by many of the leading statesmen and jurists of the first century of American life, such as Alexander Hamilton, Chief Justice John Marshall, Justice Joseph Story, and President Abraham Lincoln. What’s more, the present timing is right: Common good originalism is the natural corollary to the “common good capitalism” antidote that, after decades of destabilizing neoliberal excess, must now serve as America’s nationalist, course-correcting political economy.

Common good originalism is originalist insofar as the original meaning of a legal provision controls, but it is also morally “thick”: It counsels interpreters to cabin the permissible range of possible constructions to, and ultimately choose the best construction from, those which ultimately best further the telos—the overarching substantive orientation—of the American regime. The telos of the U.S. constitutional order is naturally and most explicitly captured by the very Preamble of the Constitution. The Preamble speaks of nationalist, solidaristic societal aims such as “a more perfect Union,” “the common defense,” and “the general Welfare,” as well as a concept of “justice” that can only be understood, much like the English common law itself, as downstream of the natural law tradition and, perhaps above all, the Bible and Scripture. Common good originalism is thus a substantively conservative—indeed, a national conservative—approach to originalism.

The question now, in the aftermath of the unprecedented conservative victories of the most recent U.S. Supreme Court term, is whether any of this remains relevant. That term included among its achievements a major Second Amendment victory in the Bruen case, another win for religious free exercise in Carson v. Makin, the long-overdue formal demise of the noxious “Lemon test” for religious establishment via the Coach Kennedy case, and, most dramatically, the overturning of Roe v. Wade in the Dobbs abortion decision.

The short answer is, of course, “yes”: Common good originalism remains as relevant as it ever has been. But it is important to understand why, and what that entails in practice.

The criticism of a positivist or overly historicist conception of originalism has nothing to do with the specific outcome of any particular “case” or “controversy.” Rather, the objection is to the very notion that legal interpretation can be reduced to something resembling a mere “corpus linguistics”-style historical inquiry. Men, and especially men pursuing the art of political and jurisprudential statesmanship, are not reducible to software programs or computer algorithms. Rather, as I wrote in that initial American Mind essay, “human beings are moral creatures, and to deny us the ability to advance overtly moralistic argumentation is an attempt to deprive us of the very faculties that make us human in the first instance.”

The founders understood that attempts to conduct politics and law absent a thick moral grounding and a proper substantive orientation would inevitably fail, descending into the very tyranny against which they had just rebelled. We can trace a direct line, here, from the Preamble’s intergenerational emphasis on “secur[ing] the Blessings of Liberty to ourselves and our Posterity” to George Washington’s famous exhortation, in his Farewell Address: “[L]et us with caution indulge the supposition that morality can be maintained without religion.” Religion, in other words, secures the Preamble’s intergenerational aim.

Hamilton was suggesting the same point when, in opening Federalist #31, he observed that “there are certain primary truths, or first principles, upon which all subsequent reasonings must depend.” Those “first principles,” in the Anglo-American constitutional tradition, are those derived from the English common law, the natural law tradition, Christianity, and the Hebrew Bible. The U.S. Constitution is necessarily oriented to the pursuit of, and exists to secure, these “first principles.” This is what John Selden, a preeminent 17th-century English common lawyer, was getting at when he argued, as my Edmund Burke Foundation colleague Ofir Haivry put it six years ago, that “universal moral principles can really be upheld only within particular legal systems fitted to the disposition and character of a nation.” For the American people, the Constitution is our “particular legal system” through which statesmanship and legal reasoning can pursue Hamilton’s “first principles.”

More fundamentally, the leading folly of the positivist-inclined originalists, and perhaps no one here was guiltier than the late, great Justice Antonin Scalia, is the very idea of “values-neutrality” as a durable and sustainable exegetical means. Scalia fought mightily against those who would counsel recourse to those extratextual small-“c” constitutional resources that might steer the interpreter of the big-“C” Constitution in the right direction, but he was wrong to do so. One key insight that national conservatism and the broader populist-inclined “New Right” political phenomenon have brought to the table is the idea that there is no such thing as “values-neutrality.”

Everything we do in politics and law amounts to some sort of value judgment. When I debated former Scalia clerk Ed Whelan last year on common good originalism, I told Whelan that his preference of Thayerian deference to legislative majorities, in the case of a close legal question, was itself a “pro-democracy” value judgment. Similarly, in the realm of political economy, the decision by the post-Cold War neoliberal Washington consensus to prioritize free trade absolutism, especially with China, was itself a value judgment in favor of lower consumer prices over American production, industry, and resilience to supply chain shocks. Just as the very choice of which canons of construction to deploy in statutory interpretation is itself a revealing value judgment, so too is the very choice of what to tax and what to subsidize.

The entire paradigm of values-neutrality is thus a lie—and a pernicious one. The adoption of that lie by the postwar “Fusionist” political consensus has been the “original sin” of Conservatism, Inc., and the adoption of that lie by large swaths of the modern legal conservative movement consensus has been the corollary “original sin” of that movement. The misguided propagation of that lie, which in practice means the cowardly abstention from bringing the fight to the very foes who seek to subjugate and dehumanize us, amounts to what Matthew Peterson and I have referred to as “principled loserdom.” And it is “principled loserdom” because recent Western history has repeatedly shown that the pursuit of a values-neutral liberal order results in a one-way cultural ratchet toward ruinous decadence and progressivism.

Common good originalism is the strand of jurisprudence that grasps this, and it does so in a way that is intellectually consonant with our Anglo-American tradition. In these respects, common good originalism is distinct not merely from the positivist-centric status quo, but also from the sort of tawdry libertarian originalism that dominates the George Mason University Antonin Scalia Law School faculty lounge, to say nothing of the performative “soyriginalism” of charlatans such as Evan Bernick. That a moral and constitutional monstrosity such as Roe was finally overturned, 49 years after it was decided and 40 years after the formation of The Federalist Society, says very little about the supposed triumph of any particular interpretive methodology, and very much about the success of the political machinations of Donald Trump and Mitch McConnell.

The upshot is that common good originalism is here to stay. For lower-court judges, that should mean adoption of what I have called a “common-good-maximization principle”: Lower-court judges should defer to the substantive common good and background principles of our common law inheritance, rather than rely upon and further entrench flawed Supreme Court precedent. And at the Supreme Court level, common good originalism militates in favor of a de minimis role for stare decisis in the realm of constitutional interpretation, preferring a morally “thick” original meaning to the often-flawed precedents that have since accumulated.

More fundamentally, at the Supreme Court level, common good originalism means rejecting “neutrality” and the pursuit of a mere “level playing field” as a putative end unto itself. As I wrote in a post-Dobbs column: “The proper long-term goal is not neutrality, but victory. The time for playing jurisprudential and judicial defense is thus over. The time is now right for legal and judicial conservatives to go on offense.” But in order to do so, we must reject illusory “neutrality,” embrace our moralistic impulses, and render judgments accordingly.

For instance, when it comes to which so-called “closure rules” an interpreter should embrace when a text is under-determinate or ambiguous, this approach means rejecting limp Thayerian deference to legislative majorities and embracing a muscular thumb on the scale in favor of substantive “case” and “controversy” outcomes most consistent with the telos of the American regime: justice, human flourishing, and the common good. The overarching judicial lodestar is thus not a reflexive posture of procedural “restraint,” but rather a deliberate pursuit of substantive justice—the rewarding of good and the punishing of evil within the confines of the rule of law.

After Dobbs, when it comes to the abortion issue, the political and judicial branches alike should reject a “house divided against itself”-style abortion patchwork regime among the 50 states, and instead interpret the 14th Amendment’s Equal Protection Clause to ban abortion and protect unborn life nationally. Congress, for its part, can and should legislate a national protection for unborn life, embracing a morally imbued reading of its 14th Amendment Section 5 enforcement power.

Moreover, after the Coach Kennedy case, it is time to double down on the issue of public religion. We must get Bibles back in schools, God back in the public square, and the liberal misnomer of so-called “separation of church and state” back where it belongs: the ash heap of history. The American republic is ailing, showing increasing signs of hurtling toward an inescapable abyss. The legal imperative, much like the political imperative, is to “know what time it is” and act accordingly, wielding power in the service of good order. Fortunately, those focused on jurisprudence need not look very far: Common good originalism was, is, and remains both our tradition and our path forward.

Josh Hammer is a Contributing Editor at Anchoring Truths and 2021 James Wilson Fellow. He is opinion editor of Newsweek, a research fellow with the Edmund Burke Foundation, counsel and policy advisor for the Internet Accountability Project, and a syndicated columnist through Creators.
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