Originalism Does Not Need a Makeover

Supreme Court Justice Clarence Thomas in Washington, D.C., June 1, 2017 (Jonathan Ernst/Reuters)
‘Common-good originalism’ would be neither common nor good — and, as a practical strategy, is suicidal.

NRPLUS MEMBER ARTICLE N ewsweek opinion editor Josh Hammer argues at Public Discourse that conservatives should replace originalism with a new, refined judicial philosophy named “common-good originalism.” Hammer is a sharp guy, and one assumes that his is the best argument that could be made for this proposal. His argument is, however, unspecific in its critiques, vague in its proposals, unmoored from constitutional legitimacy, and unsound as strategy. That suggests that the problem is not the messenger, but the message.

Briefly defined, originalism is the idea that when a law is passed, it means what it is understood to mean at the time it receives

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