‘Common-good originalism’ would be neither common nor good — and, as a practical strategy, is suicidal.
‘Common-good originalism’ would be neither common nor good — and, as a practical strategy, is suicidal.
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 the people’s approval, and it stays that way until it is changed. When the law is a statute rather than part of the Constitution, the same concept is called textualism. The words matter, including the meaning of those words when written down. Fixing the meaning of a rule is the whole point of writing it down and getting the people or their representatives to approve it as written, rather than just electing good people and telling them, “Do what you think is best.” (In P.J. O’Rourke’s phrase, this is the difference between having a Congress and having a mom.) Written rules may become obsolete, of course, but in a democracy, it is the job of the people rather than unelected judges to decide that.
Why complain about originalism? No other conservative idea has penetrated so far into both elite institutions and popular opinion in the past three decades than originalism has. Among all the elements of the post-Cold War conservative coalition, only gun-rights advocates have been arguably more successful in pressing their public-policy vision than originalists have, and the cause of gun rights has itself relied heavily on an originalist reading of the Constitution. Almost alone among conservative ideas in recent decades, originalism has compelled even its enemies in the liberal academy to contend on its turf, and has succeeded in staffing the power centers of the federal government with many of its adherents. Textualism has, if anything, been even more resoundingly successful, even among liberals.
Popular support for originalist judges has been the life raft that saved Republican candidates for president in 2016 and the Senate in 2018. Gallup polling shows that the Supreme Court, whose approval rating had dropped as low as 43 percent as recently as 2013, surged all the way to 58 percent in mid 2020, and has been above 50 percent since Justice Brett Kavanaugh’s nomination to the Court. Devotion to originalist judging is the single strongest glue holding together classical liberals, populists, and moderate Republicans. Even pro-choice, socially liberal Republican senators such as Susan Collins and Lisa Murkowski are comfortable voting for originalist judges, whereas they might not support judges openly committed to social-issue crusades without a firm grounding in the text.
The great baseball writer Bill James once observed that winning organizations focus on what their marginal players can do for them; losing organizations obsess over what their best players can’t do. Originalists have been asked to carry the team, and this is not their role. They cannot win the culture. They cannot win elections on their own. The pace of change through the law is gradual, and its possibilities are constrained by actions taken within the political system. But these are not the originalist judges’ jobs. Their job is the rule of written law.
So, what is Hammer’s grievance? What questions of American law have originalists decided wrongly? Amazingly, he identifies only one case, and it is a case involving the interpretation of a statute passed in 1964, in which three of the Court’s four avowed originalists at the time dissented. So, this entire dispute is about Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County. The Court in Bostock read the prohibition on discrimination “because of . . . sex” in Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the basis of sexual orientation or transgenderism. Hammer, however, does not even claim that Gorsuch’s decision was a proper application of originalism; to the contrary, he describes it as “rank analytical sophistry.” The fact that Justices Clarence Thomas, Samuel Alito, and Kavanaugh all dissented in Bostock on textualist grounds should be some indication that Gorsuch’s view was not a majority one even among originalists. Alito presented extensive historical evidence and concluded:
The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. The possibility that discrimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds.
Kavanaugh, for his part, called out Gorsuch’s analytical departure from textualist methodology:
Courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase. There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes. As Justice Scalia explained, “the good textualist is not a literalist.”
Alito and Kavanaugh not only called out Gorsuch for doing originalism wrong; they also critiqued him for deciding a question better left to the legislature. As Kavanaugh opened his opinion, “Like many cases in this Court, this case boils down to one fundamental question: Who decides?” That is, of course, the legitimacy question at the very heart of originalism and textualism.
Alito and Kavanaugh were able to offer these criticisms of Gorsuch’s opinion because there was common ground among the Court’s originalist-textualist bloc that originalism and textualism are disciplines with commonly shared rules that aim to constrain judges from making decisions that depart from those rules. Of course, judges are human, and cases that reach the Supreme Court are often difficult ones, so we should not be surprised that the originalist/textualists will sometimes disagree, and sometimes err. But the whole point of having standards is that you can call out the failure to adhere to them. The judge who pursues the “common good,” by contrast, is working in a much more flexible field and is much harder to critique for getting it wrong. The Court’s liberals, after all, clearly believe that the common good is served by expanding Title VII’s coverage and not fussing about exactly what Congress said or believed in 1964.
Hammer critiques originalism for having no content and no values but legal neutrality. But this is a caricature. Originalism and textualism have the content of the rules they interpret. Sometimes, that content is explicit: The First Amendment is not neutral about press freedom, the Second Amendment is not neutral about gun rights, and the 13th Amendment is not neutral about slavery. Sometimes, the text invites judges to pursue a goal: The Sherman Antitrust Act authorizes the courts to develop a common-law body of decisions about what restraints on trade are “unreasonable.” But purposes are still embodied in text, and the text determines how broadly or narrowly the interpreter is empowered to read the rule.
What are the rules of common-good originalism, and what are its constraints? Hammer frames his own standard as “intrinsically oriented toward substantive conservatism” and a “more pliable” aid to “a complementary populist-inspired conservative politics eager to exercise political power in the service of good political order.” That doesn’t tell us very much except that it is supposed to deliver outcomes we like. He offers, as the foundational text, the preamble to the Constitution:
There are seven enumerated ends of self-government in the Preamble: a more perfect Union, establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, securing the blessings of liberty for us, and securing the blessings of liberty for our posterity. Each and every one of these political ends pertains to the statesman’s view of the common good of the nation, communities, and families. They do not pertain to the protection and promotion of individual rights. And interpreting both constitutional provisions and statutes passed pursuant to the Constitution through the exegetical prism of the Preamble is the sine qua non of common good originalism.
To start with, this ignores the most important part of the preamble: that “We the People . . . do ordain and establish this Constitution,” a written document constraining the federal government to one of enumerated powers, and securing certain individual rights, the list of which was significantly expanded by amendment. The writing of constitutions by the states and the federal government in the 1770s and 1780s was itself a revolutionary act; no other nation on Earth constrained its government in this fashion at the time. It was the success of the American experiment with constitutionally limited government that spawned its imitation around the world.
John Adams’s Massachusetts Constitution made explicit that writing the rules down as limitations was done “to the end it may be a government of laws, and not of men.” Recall how Alexander Hamilton described the relationship between judicial independence from politics and the limited but essential role of judicial review under “a limited Constitution”:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.
There is a reason why the preamble is typically invoked by liberals and progressives: because appealing to the general purposes of government is a convenient sleight of hand to avoid discussing the specific powers and limitations of government. A judicial philosophy that invokes the purposes of the preamble lacks the language in which to criticize a differing view of what the “general Welfare” empowers the government to do.
Hammer’s chief concrete proposal for constitutional reform is a link to the “Lincoln Proposal” to define the unborn as “persons” within the meaning of the 14th Amendment. This is a well-meaning proposal, but it still assumes that this is an action that must be taken by a political body, not the courts, and it is addressed to the wrong political body. The proposal to do this by executive order flatly ignores section five of the 14th Amendment, which explicitly places with Congress (not the president) the power to enforce the amendment by lawmaking.
Encouraging rewriting of the terms of individual constitutional rights by executive fiat would be a terribly dangerous precedent, one whose hazards should be obvious now that the Democrats hold the executive branch. It also assumes an independent presidential power to construe the Constitution that would unsettle the longstanding doctrines of judicial supremacy, which even Hammer — in a sympathetic 2020 law review article on the topic of post-Obergefell resistance to judicial decisions — found to be supported by “compelling pragmatic and functionalist reasons.”
Experience, not theory, is the great teacher of conservatism. What would common-good originalism look like in practice? Hammer does not identify a judge anywhere who has put it into practice in modern America. That makes it an unpromising cause to promote, given how many common-good judges he would need to convert or appoint in order to advance the project. It also makes it difficult to evaluate its track record in delivering outcomes, if outcomes are the real goal here.
As it happens, however, we do have an example on today’s Supreme Court of a Republican-appointed justice of generally conservative leanings (see his dissent in Obergefell v. Hodges) who sees originalism and textualism as useful tools, but declines to be constrained by them when he invokes broad purposes: Chief Justice John Roberts. Sometimes, this strain in Roberts’s thinking is explicit. In NFIB v. Sebelius, Roberts concluded that “the most straightforward reading of the [individual] mandate is that it commands individuals to purchase insurance,” yet he insisted on rewriting the rule as a tax in order to allow Congress to pursue its purposes. In King v. Burwell, he read the phrase “an Exchange established by the State,” in a statute that explicitly defined the term “State,” to nonetheless mean a health-care exchange established by the federal government, and thus upheld a regulation that literally applied “regardless of whether the Exchange is established and operated by a State.” Roberts justified this egregious departure from textualism by appealing to the statutory purpose: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” The common good must prevail!
Roberts has taken the same stance in his narrow approach to severability questions, determining that an agency such as the CFPB must be saved with a “scalpel rather than a bulldozer” from consequences for the unconstitutionality of its structure, in order that it be able to carry out Congress’s purposes.
On the other hand, when Roberts is more skeptical, he tends to require the government to do its homework more carefully before exercising power. He upheld the Trump travel ban only because it had been vetted and revised multiple times, but told the administration to go back and justify more clearly its actions regarding the DACA repeal and the Census immigration question. He did the same thing to Congress in Shelby County v. Holder regarding its justification for identifying which states still require federal preclearance for their voting rules. This tendency on Roberts’s part may look like proceduralism taken to an extreme, but when you consider that he did not apply the same stringency to Congress’s work on Obamacare or the CFPB statute (or Title VII; he joined Gorsuch’s opinion in Bostock), it is hard to escape the suspicion that he sees some appeals to the common good as more self-evident and better-explained in their application than others.
Or consider the best-known exemplar of a form of common-good judging at the federal appellate level: Seventh Circuit judge Richard Posner. Posner has long been the chief exponent of the economic analysis of law. He was once a hero to conservatives, or at least those of a libertarian stripe. He is a brilliant man and a great common-law judge. But he has also long been openly contemptuous of originalism and textualism. And Posner’s vision of the common good is utilitarian and libertine, so he has often reached outcomes that horrify social conservatives. Judge Posner openly argued, in the Title VII case, that he felt empowered to “update” the statutory text:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. . . . The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose “interpretation” of the word “sex” in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) “what this country has become,” or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.
Even Pamela Karlan, the lawyer arguing for the plaintiff in Bostock, felt compelled at oral argument to disclaim Posner as “a loose cannon” and distance herself from his argument. But if the issue in the case was the common good and the general welfare, then she would not have had to do that. It is originalism and textualism that places arguments such as Posner’s out of bounds. Do we wish to tear down that fence without consideration of the reasons why it was built with decades of patient labor in the first place?
Hammer’s real grievance seems to be less with methods than with the people who apply them. Bostock is a threat to the right’s popular confidence in originalists, moreso than in originalism, because of its result. It raises yet again the refrain, “But what have you conserved?” But the less-originalist, less-textualist Republican appointees to the Supreme Court have almost invariably produced fewer conservative outcomes, and this has been the case for seven decades. It is true that a judge’s political philosophy and worldview can matter at the margins to how they decide cases, and that a judge’s courage and integrity matter a good deal to how faithful they will be to their stated principles. So, to the extent that Hammer wants better outcomes, it is not unreasonable to ask for a more careful vetting of major judicial appointments.
But Hammer’s call for reworking the entire intellectual basis of originalism and textualism is suicidal as a practical strategy. It eliminates the appeal that originalism has to people who are not hard-core social conservatives: its intellectual rigor and grounding in popular legitimacy. That narrows the base of support already enjoyed by the conservative approach to law.
It also simply assumes, without experience or evidence, that expanding the discretion of judges will lead to more conservative victories rather than a rout of conservatives at the hands of the culture of the legal profession. This is the fallacy of Vermeulism, so named for Adrian Vermeule (whose work I’ve discussed here and here): The idea that unchecked, unaccountable, undemocratic discretion should be given to institutions in which left-leaning culture or personnel are dominant, in the hopes that someday, by some unspecified mechanism, they will come to be controlled by social conservatives. The cavalry will simply appear over yonder hill, and ride through the institutions. For my part, rather than engage in novel feats of ideological utopianism, I prefer to take the world as it is. That means defending the heritage of the American Constitution as a government of laws, not of men.