As far back as I can remember, conservatives have attacked liberal judges for substituting their policy preferences for the text of the Constitution, and for trying to cram the entire progressive agenda onto a handful of provisions (the Commerce Clause, the Necessary and Proper Clause) that were never meant to carry such weight. But the times are changing. Now, a new conservative faction is aiming to beat the results-oriented liberal judges at their own game.
Writing in the latest issue of the Harvard Journal of Law & Public Policy, conservative lawyer and Newsweek opinion editor Josh Hammer urges his fellow travelers on the right to embrace a new "jurisprudence that actually serves our substantive goals." What goals? "Conservatism in the Anglo-American tradition," Hammer argues, "is preeminently concerned with the societal health and intergenerational cohesion of the nation-state, with the structural integrity and formative capability to inculcate sound republican habits of mind in the intermediary communitarian institutions that exist between citizen and state, and with the flourishing of individual citizens in a way that serves God and nation and comports with the great Western religions' conceptions of the teleological ends of man." This "conservatism," Hammer explains, "is thus more open to wielding state power, when need be, to 'enforce our order,' or even to 'reward friends and punish enemies.'"
Hammer dubs this approach "common good originalism," but there is not so much that is recognizably originalist about it. To be sure, he does repeatedly invoke the Preamble to the Constitution, reading its soaring language as a permission slip for vigorous government action on behalf of various conservative causes. But even when the government is promoting "the general Welfare" or securing "the Blessings of Liberty," the government must still act within the confines of its constitutionally enumerated powers and must still respect the many individual rights possessed by the citizenry.
Hammer is not so big on limiting government power. Rather, he favors a legal regime that will "prioritize the true flourishing of the communitarian whole over the temporal satisfaction of the individualist self." He wants more government control over speech and journalism, more regulation of the economy, and "a more robust constitutional ambit for the actions of the federal government than other competing originalist interpretative methodologies" would allow. Hammer also thinks that police officers should get more judicial deference and should be awarded more qualified immunity in cases of alleged police misconduct. He even asserts that the Fourth Amendment contains "some degree of mandated deference toward the governmental actors tasked with 'search[ing]' and 'seiz[ing] offending citizens."
Hammer's take on the 14th Amendment illustrates some of the shortcomings of his approach. Among other things, that amendment was originally understood by those who drafted and ratified it as placing birthright citizenship in the constitutional firmament. As I have previously explained, "the text and history of the 14th Amendment are clear: If a child is born on U.S. soil, and that child's parents don't happen to be diplomats, foreign ministers, or invading foreign troops, then that child is a U.S. citizen by virtue of birth."
Hammer does not care for that result (since it means birthright citizenship for the children of illegal immigrants), so he minimizes the text and history that cuts against him and emphasizes "the profound substantive harms that a mandated birthright citizenship interpretation would wreak upon cherished common good concepts such as national sovereignty and the sanctity of national citizenship."
In short, Hammer seeks conservative results by reading his preferred conservative agenda ("our substantive goals") into the constitutional text. "Background substantive norms of conservatism, rightly understood, are, or should be," Hammer writes, "ingrained in the extant U.S. constitutional order." Hammer may call it "originalism," but it sure operates more like right-wing living constitutionalism.
If that sounds familiar, it is because Hammer largely retreads the ground covered last year in a widely discussed Atlantic essay written by conservative Harvard law professor Adrian Vermeule, who had this to say to his fellow right-wingers:
Originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it "common-good constitutionalism"—should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate. In this time of global pandemic, the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being—reading "health" in many senses, not only literal and physical but also metaphorical and social.
According to Vermeule, the time has come for conservatives to ditch originalism and start getting comfortable with "authoritative rule for the common good." What did he mean by that? "Under a regime of common good constitutionalism," Vermeule explained, "libertarian assumptions central to free-speech law and free-speech ideology" must necessarily "fall under the ax." What is more, "libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources."
That stuff was actually my favorite part of Vermeule's essay. I mean, just think about it. He told conservatives to abandon originalism because originalism was going to produce a bunch of libertarian results. Vermeule effectively conceded that the libertarian originalists have been right all along.