In an essay for Public Discourse, JWI Affiliated Scholar Josh Hammer implores conservatives to embrace a new approach to originalism that emphasizes the common good. He argues that originalism has become entirely unmoored from conservatism rightly understood, particularly in light of Justice Gorsuch’s decision in Bostock v. Clayton County. It must be replaced by a jurisprudence that allows constitutional actors “more room to pursue the conservative political goals of justice, human flourishing, and the common good within their constitutionally allocated spheres of influence.” Hammer argues that positivist theories of originalism which stress judicial restraint and trust judges to be morally neutral are at odds with human nature. His approach would see judges uphold natural law principles to fulfill the seven ends of self-government enumerated in the Preamble to the Constitution. This style of legal conservatism will complement efforts to build a new multiracial working-class coalition for the conservative political movement.
“The concerns of nation, community, and family alike must be prioritized over the one-way push toward ever-greater economic, sexual, and cultural liberationism. And this must be true not merely as a matter of public policy, but as a matter of legal interpretation.”
“The originalism of Founding-era luminaries such as Alexander Hamilton, Chief Justice John Marshall, and Justice James Wilson was centered on the common good that is our true Anglo-American inheritance, going back to the English common law. It rejects both insipid positivism and hapless literalism. It emphasizes that it is impossible to truly understand the meaning of any legal text without grappling with the idiosyncratic teleology of that text. And while it recognizes and appreciates the importance of the Constitution’s carefully devised structural safeguards—namely, federalism and the separation of powers—it is also more pliable, contra Jeffersonian ‘strict constructionism,’ and thus more suitable to a complementary populist-inspired conservative politics eager to exercise political power in the service of good political order.'”
“Lawyers often tend to bore, and the study of law itself can veer toward the soporific. But a proper conception of law—and the American rule of law predicated on our constitutional order, in particular—will be a necessary foundation for any meaningful post-Trump, “new consensus” conservative revival. Common-good originalism is the best chance for a constitutional complement to a politics of a conservative restoration: a profoundly and distinctly conservative politics that is faithful to our traditions and oriented toward the timeless political ends of justice, human flourishing, and the common good.”