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Josh Hammer told stu­dents about The new concept of con­ser­v­ative con­sti­tu­tional jurispru­dence. Courtesy | Twitter

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.”