Hammer argues, contra Vermeule, that originalism need not be abandoned for conservatives to pursue the common good in the courts. Hammer argues that Vermeule's proposal goes too far and instead a Hamiltonian understanding of the constitution would suffice.
My friend Adrian Vermeule, a Harvard Law School professor, administrative law scholar, and public intellectual, has fired quite the salvo. With its call for a new “common good constitutionalism,” his now-infamous essay, “Beyond Originalism,” issues the single most provocative call to rethink conservative constitutional jurisprudence in a generation.
Vermeule argues that originalism, which has various sub-genres but holds that the Constitution’s original public meaning is both fixed and binding, “has now outlived its utility.”
In its wake should come an unabashedly substantive constitutional exegesis “based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” Specifically, this interpretive methodology “should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution.”