The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last month, Adrian Vermeule wrote an essay titled Beyond Originalism. The Harvard Law Professor contended that originalism had already served its purpose, and our polity should shift to what he called "common-good constitutionalism." Co-blogger Randy Barnett responded to Adrian, and warned about the risks of any non-originalist approach to the Constitution.
Last week, my friend Josh Hammer wrote another reply to Vermeule that seeks to stake out something of a half-way position. He calls it "common good originalism." Here is a snippet–though I encourage you to read the entire essay.
Common good originalism should adopt the conservatism of Hamilton, Marshall, and Justice Joseph Story as its jurisprudential lodestar. The interstices naturally permitted by a more expansive constructionism will, assuredly, provide ample room for jurists to deploy substantive moral argumentation along the lines favored by scholars like Jaffa and Arkes. Furthermore, by rejecting hyper-literalist free speech absolutism, common good originalism permits (within reason) natural law-undergirded arguments about the moral worth of one's speech, such as Alito's dissent in Snyder: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case."
Common good originalism also rejects natural law-subversive "originalist" claims about constitutionally mandated marriage redefinition that would undermine the common good, risible anti-sovereigntist "textualism" claims about constitutionally mandated open borders that would wreak havoc upon the common good, and so forth.
This is only a bare-bones beginning. And I know, of course, that I will not persuade Vermeule himself. But my aim is to lay out a framework upon which to build an assertive, moralistic, Burkean/Hamiltonian conservative jurisprudence. This jurisprudence is also legitimate, from a positive law perspective, because it is rooted in (an expansive construction of) the constitutional text and thereby avoids the "oath-breaking problem" posed by Article VI of the Constitution.
Vermeule has now responded to Hammer.
Josh Hammer has written a characteristically thoughtful and engaging response to Common-Good Constitutionalism, arguing for an approach he calls "Common-Good Originalism." I see Hammer's approach as a laudable development, a movement half-way to the right approach. But as with many half-way positions, it is unstable. The structure built of originalism and the common good fits together poorly, for the former is a positivist approach and the latter a nonpositivist one. Thus nothing at all guarantees that the original understanding will necessarily or even predictably track the common good (however the latter is defined), and conversely it is always possible, indeed likely, that the common good (however defined) will prescribe an interpretation that cannot be justified in originalist terms.
Adrian adds that Hammer's position may become something of a middle-ground:
To be sure, even if originalism and the common good cannot be combined in a stable manner, a house with shaky foundations may happen to be shored up by external buttressing. I wouldn't be wholly shocked to see a position like Hammer's become a new political equilibrium, one that supersedes the currently reigning libertarian originalism, and theoretical coherence be damned. But that contingent political dimension is not my concern here. My point is one of theory: common-good originalism, whatever its political appeal, has an inherent tendency to break down into one or another of two distinct views, one which subordinates the common good to originalism, and the other which subordinates originalism to the common good.
And Adrian praises Hammer's non-libertarian approach to originalism:
There is much to admire in Hammer's argument. It is a long step away from the libertarian form of originalism that has colonized the legal right at least since the second Bush administration, and that until recently dominated the scene. Justice Scalia's modus operandi (viewed from the outside; I do not suggest that this was a deliberate strategy) was to stake out a principled position, resting on internally coherent arguments, that would expand the range of the thinkable on the Court, and then to watch his colleagues struggle part-way towards his views with positions that were uneasy compromises. In that Scalian sense, Hammer's piece, internally conflicted though it may be, amounts to an ominous sign of the times for conventional originalists. When a prominent young conservative commentator like Hammer expressly rejects "pure legal positivism and the elevation of procedure to the complete detriment of substance, most frequently associated with the jurisprudences of the late Judge Robert Bork and the late Justice Antonin Scalia," one can almost feel the winds of change freshening.
We are watching an important debate play out in front of our eyes. And the stakes are high. In the past, I have described the "libertarian" wing of the FedSoc legal movement as "ascendant." I still think that is the case, but there is movement afoot. Contrary to left-wing caricatures, we are not monolithic lemmings. There are some common grounds of agreement, and there are other areas of sharp disagreement. Randy wrote about this shift:
In particular, I have sensed a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists. They are disappointed in the results they are getting from a "conservative" judiciary—never mind that there are not yet five consistently originalist justices. Some attribute this failing to originalism's having been hijacked by libertarians. Some have been drawn to the new "national conservatism" initiative, which makes bashing libertarians a major theme. These now-marginalized scholars and activists will be delighted to fall in behind the Templar flag of a Harvard Law professor like Vermeule.
Josh Hammer makes this point expressly, and ties it to a current case:
Within this broader context of conservatives reconsidering orthodoxies, Vermeule's proposal fits quite neatly. What Georgetown University Law Center Professor Randy Barnett calls a "disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists" could evolve into a more thorough exodus away from originalism if, as is heavily rumored, putative originalist Justice Neil Gorsuch sides with his progressive colleagues this term by reading into Title VII legal protection the biological and linguistic lie that is "transgenderism."
I agree with Josh Hammer that Adrian has shifted the Overton window. This issue warrants far more discussion.