Explaining Common-Good Originalism Does Not Help Its Case

Scene at the Signing of the Constitution of the United States by Howard Chandler Christy, 1940 (Wikimedia)
One pundit’s unique constitutional theory just does not work.

NRPLUS MEMBER ARTICLE N ewsweek opinion editor Josh Hammer has been on a campaign to market what he calls “common-good originalism” as a substitute method of constitutional interpretation. The target audience is conservatives dissatisfied with mainstream originalism for delivering too few conservative outcomes. I have explained previously why his op-eds elaborating on this theory were unpersuasive as a justification for tearing down four decades of careful scholarly, legal, and political groundwork to start the world of conservative jurisprudence anew. I have also offered a response to the similar proposal by Harvard law professor Adrian Vermeule for “common-good constitutionalism.”

Hammer has since presented his theory in

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