Now is the time to go on the offensive, says AM Board of Advisors Member Josh Hammer, in his full speech at the NatCon III conference in Miami.
In 2020, Harvard Law School professor Adrian Vermeule first outlined his proposal for a jurisprudence of “common good constitutionalism” in an essay in The Atlantic. I initially responded with a friendly essay at the Claremont Institute’s American Mind site that applauded Vermeule’s “beneficial exercise in Overton window-shifting,” while nonetheless offering some objections due to the debatable theoretical compatibility of Vermeule’s proposal with our distinctly Anglo-American constitutional heritage. I also raised a concern on more tactical grounds of “that great Burkean virtue, prudence.”
I called my own proposed remedy to the stagnant status quo of the conservative legal movement, “common good originalism.” Since then, I have frequently written and spoken on this, most fully in a Harvard Journal of Law & Public Policy essay last summer titled, “Common Good Originalism: Our Tradition and Our Path Forward.” As the title implies, my argument is that this approach to constitutional interpretation was implicitly intuited and implemented by many of the leading statesmen and jurists of the first century of American life, such as Alexander Hamilton, Chief Justice John Marshall, Justice Joseph Story, and President Abraham Lincoln. What’s more, the present timing is right: Common good originalism is the natural corollary to the “common good capitalism” antidote that, after decades of destabilizing neoliberal excess, must now serve as America’s nationalist, course-correcting political economy.
Common good originalism is originalist insofar as the original meaning of a legal provision controls, but it is also morally “thick”: It counsels interpreters to cabin the permissible range of possible constructions to, and ultimately choose the best construction from, those which ultimately best further the telos—the overarching substantive orientation—of the American regime. The telos of the U.S. constitutional order is naturally and most explicitly captured by the very Preamble of the Constitution. The Preamble speaks of nationalist, solidaristic societal aims such as “a more perfect Union,” “the common defense,” and “the general Welfare,” as well as a concept of “justice” that can only be understood, much like the English common law itself, as downstream of the natural law tradition and, perhaps above all, the Bible and Scripture. Common good originalism is thus a substantively conservative—indeed, a national conservative—approach to originalism.
The question now, in the aftermath of the unprecedented conservative victories of the most recent U.S. Supreme Court term, is whether any of this remains relevant. That term included among its achievements a major Second Amendment victory in the Bruen case, another win for religious free exercise in Carson v. Makin, the long-overdue formal demise of the noxious “Lemon test” for religious establishment via the Coach Kennedy case, and, most dramatically, the overturning of Roe v. Wade in the Dobbs abortion decision.
The short answer is, of course, “yes”: Common good originalism remains as relevant as it ever has been. But it is important to understand why, and what that entails in practice.