The James Wilson Foundation on Natural Rights and the American Founding

“Common Good Originalism”: Josh Hammer in The American Mind

In a measured response to Harvard Law professor Adrian Vermeule’s critique of originalism, Josh Hammer, a friend of the James Wilson Institute and Of Counsel at the First Liberty Institute, proposes a middle way between originalism and common good constitutionalism. While he agrees with much of Vermeule’s philosophy and argument, he sees a complete abandonment of originalism to pose an “oath-breaking” problem for the judges that have sworn to uphold the Constitution. Judges are bound to interpret the law within context or risk subverting the Constitution and violating their oaths before God to uphold it. Instead of embracing Vermeule’s proposal, Hammer suggests that judges forgo the extreme cramped interpretive framework of Jefferson and Madison and instead follow the broader interpretative framework of Hamilton, something Hammer calls “common good originalism.” According to Hammer, this legal tradition would allow for a greater appeal to the moral foundations of the Constitution while still ensuring fidelity to the text itself.

Some quotes from the article:

“…I still cannot fully endorse Vermeule’s proposal. There is much sclerosis that Vermeule aptly perceives and diagnoses, but for reasons of both theoretical legitimacy and that great Burkean virtue, prudence, the proposed remedy is a bit too strong for the malady.”

“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, must be rejected.”

“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. Unless we accept the Marxist-inspired “critical legal studies” thesis that all text is hopelessly indeterminate, furthermore, we must accept that words maintain generally durable meanings over time.”

“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 [Harry] Jaffa and [Hadley] Arkes.”

You can read the whole essay here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790