The new concept of conservative constitutional jurisprudence, or “common good originalism,” is a “half-baked, working thesis,” First Liberty Institute Attorney Josh Hammer told students at an event hosted by Federalist Society last Thursday.
Federalist Society hosted Hammer virtually due to the COVID-19 pandemic.
Hammer, an opinions editor for Newsweek magazine, said the concept was originally formulated in response to an essay written last March in The Atlantic by legal scholar Adrian Vermeule titled “Beyond Originalism.”
In his essay, Vermuele called for conservatives to reject originalism and adopt “common good constitutionalism” instead, suggesting that conservatives take broadly-worded clauses in the Constitution and implement their own substantive, common good values through them.
“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,” Vermuele wrote in the essay.
Hammer responded to Vermuele’s piece in an article of his own in the The American Mind titled, “Common Good Originalism.” In his essay, Hammer endeavored to reconcile Vermuele’s common-good judicial values with the originalist judicial philosophy that he believes conservatives must necessarily adopt.
“To solemnly vow to support the Constitution, so help you God, is to make an unbreakable commitment to faithfully interpret and dutifully execute the Constitution’s commands,” Hammer said in the article. “We must accept that words maintain generally durable meanings over time. If words maintain fixed meanings over time, then to ‘support’ a text necessarily entails an inquiry into what words meant at the time they were enacted into law.”
Though Hammer disagreed with Vermuele’s rejection of originalism as a judicial doctrine, he empathized with Vermuelle’s frustrations with recent mainstream conservative judicial decision-making. More strict textualist and individual liberty-maximizing interpretations of the Constitution have led to what Hammer and Vermuele both feel are disappointing outcomes in Supreme Court cases for conservatives over recent years. Because of that, Hammer said he agreed with Vermuele’s call for more focus on traditional, common-good values in conservative adjudication.
“The Constitution cannot possibly be understood if it is fully untethered from our natural law framework,” Hammer said in his lecture. “It cannot be understood apart from an understanding of the great classics, not just in the Judeo-Christian tradition, but also in the Greeks and the Romans.”
Federalist Society President and senior Dan Grifferty said he was pleased with how the event went and appreciated how Hammer articulated his common-good originalist perspective.
“He fleshed everything out really well,” Grifferty said. “He took us through every step of his argument, from what the different positions of originalism are to how he understands this kind of common good originalism, this kind of communitarian understanding.”
Ryan Lanier, Federalist Society marketing and operations director, also expressed his enthusiasm for how Hammer explained his viewpoints. Lanier said he hopes the Hillsdale Federalist Society chapter will bring Hammer to campus in person after reading his response to Vermuele.
“I read Hammer’s response and thought ‘Oh this would be a cool guy to have as a Federalist Society speaker,’” Lanier said. “We always talk about originalism at Hillsdale, and this is a unique take on it where I think he gets it more right than a lot of people do.”
Senior politics major Carl Miller also attended the talk and said that while he is a fan of Hammer and enjoyed the event overall, he had some reservations with Hammer’s views.
“I’m not sure I agree entirely,” Miller said. “I do think some of the questions at the end pointed out some of the dangers that can be inherent in the ideology of reading something into the text. Even if what you’re reading into it is the common good, sometimes the good isn’t so common.”