One pundit’s unique constitutional theory just does not work.
One pundit’s unique constitutional theory just does not work.
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 greater depth in a law review article for the Harvard Journal of Law & Public Policy, an excellent publication that is the de facto law review of the Federalist Society. Unlike his prior writings, the article promises to show how common-good originalism would work in practice. While Hammer makes some individual arguments that are worth considering, his overall project of rethinking originalism remains fundamentally flawed. Much as with “compassionate conservatism,” appending the adjective “common good” to originalism is superfluous at best, mischievous at worst.
Originalism, Understood
Briefly defined, originalism is the idea that a law 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 by the people’s representatives. When the law is a statute rather than part of the Constitution, the same concept is called textualism. The words matter. That includes not just the literal words on the page but also the meaning of those words when written down, in addition to the background of law and culture against which they were enacted. 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.
Historically, the main alternative to originalism has been a theory known as living constitutionalism, and the main alternatives to textualism have been intentionalism and purposivism. All of these “-isms” to some extent empower judges to divine the “spirit of the law” in order to evade the constraints of sticking to the words chosen by the lawmakers. To greatly oversimplify, each of these theories de-emphasizes the centrality of the text in favor of some assessment of the purpose or broader values behind it. The argument of Ronald Dworkin and other living constitutionalists for what Dworkin called a “moral reading” of the Constitution is that the Constitution embodies certain values more so than rules, and the rules that are applied should therefore be changed over time by judges in order to better promote those values. You can find versions of this theme in the opinions and commentaries of liberal justices such as William Brennan and Stephen Breyer.
Lawrence Solum offers a concise definition of intentionalist and purposivist theories of statutory interpretation:
Intentionalism is a subjective approach that emphasizes legislative history as guide to the will of the legislature whereas purposivism is an objective approach that focuses on an inquiry into the purposes that an ideal legislature would have had if it had enacted the statute to achieve the public good.
Justice Antonin Scalia argued that the same basic theory should be used to interpret both kinds of laws: both the Constitution and statutes. In the area of laws passed by Congress, Scalia was famously successful in convincing even many of the Court’s liberals of the pitfalls of relying on legislative history rather than legislative text as reliable evidence of what Congress meant to do, or in any event, actually did. For similar reasons, Scalia was also central to redefining constitutional originalism itself as a search for the original meaning of the text — as commonly understood at the time it was ratified by the voters — rather than the original intentions of the people who had drafted it.
As a matter of practical political theory, originalism has two cardinal virtues as a theory of interpreting democratically enacted laws. The first is legitimacy. Of course, our system embodies values beyond the text of written rules. Of course, we seek the pursuit of justice, the general welfare, and the common good. Of course, our system must adapt over time to reflect both changing social mores and changing practical realities. But the originalist and textualist argument is that these sorts of spirit-of-the-law and change-with-the-times decisions are properly the job of the people and their elected representatives. Moral readings, value judgments, and assessments of changing times are the stuff of democracy; there is no reason to think that judges are better than voters at making these decisions, and no democratic legitimacy to granting them the power to take them out of democratic hands unless the people have done so through some specific text.
It is possible to have a system, such as that of Britain, in which “the constitution” is defined by norms of behavior rather than by a fixed text. But we Americans departed from that system in the 1770s when we started writing state constitutions and the Articles of Confederation. Text having meaning and power is a bedrock assumption of the entire exceptional American project.
The second virtue of originalism is constraint. Federal courts — and the Supreme Court, in particular — are the least constrained portion of the federal government, protected individually from accountability by life tenure and collectively from institutional pushback due to strong norms of obedience to their dictates. No interpretive theory can entirely cure that problem, but the advantage of originalism is that it appeals to an external source of factual information that can be examined to see whether the justices have been faithful to their theory. Legal scholars can actually examine what was understood at a particular point in time, even if the answers to some of those questions are clearer and more definite than others. As a result, judges can be criticized in scholarly detail for deviating from it, in ways that are not possible when judges are simply offering moral readings of broad values. Supreme Court justices live in the world of academic and intellectual respect for their decisions; the good opinions of scholars they admire may not be the most powerful of constraints, but it hits them directly in the professional self-respect that shapes the opinion-writing process.
There are political virtues as well, as my prior columns have noted: Originalism has succeeded in placing many adherents on the bench and in the academy, and in broad outlines, it has persuaded many ordinary Americans to boot. It has done so in part for political reasons — because it delivers outcomes people like — but also because people genuinely believe that it offers both democratic legitimacy and constraint. It accords with how Americans understand the purpose of their Constitution. We should bear in mind those two lodestars in how we assess common-good originalism.
Hammer in Search of a Nail
As I noted in my prior column, Hammer’s case against originalism seemed thin and unspecific, given that nearly the entirety of the argument against originalist analysis rested on the opinion of one justice (Neil Gorsuch) in one statutory case, Bostock v. Clayton County, in which all of the other professed originalists on the Court were on the other side. This time, in an effort to explain what common-good originalism is and how it differs from originalism, Hammer has expanded both his theoretical justifications and his critique. I will focus mainly on the latter, as it offers us a look at what common-good originalism actually proposes to do. There remains less here than meets the eye, and important questions remain unanswered.
Hammer’s criticisms of existing jurisprudence fall into three general categories. His first target is things that originalists already typically reject. In addition to Bostock, for example, he criticizes the Supreme Court’s “evolving standards of decency” jurisprudence on the Eighth Amendment; the Court’s abortion decisions since Roe v. Wade; and the substantive-due-process reasoning of the same-sex marriage decisions, U.S. v. Windsor and Obergefell v. Hodges. But almost nobody defends any of these rulings as faithful readings of the original meaning of the Eighth or 14th Amendments.
Hammer’s complaint in these areas is less about judicial philosophy than about demanding that originalist judges mean what they say. That is a fair request, but it is a rather different complaint. As a matter of political economy, he offers no reason to believe that conservative-minded judges who pledge themselves to pursue the common good would be any less susceptible to “go along to get along” temptations than are originalists. Certainly, conservative politicians of all manner of dispositions and ideologies have disappointed their constituents over the years. If anything, Hammer’s theory offers fewer constraints upon the judge who declares that the new common good is now more common and more good.
There is one legal rationale under which originalists might be inclined to leave obviously non-originalist decisions undisturbed: stare decisis, the doctrine of respect for the precedential value of matters already decided. There has, in fact, been longstanding debate on the tension between upholding precedent (in general, a conservative value) and restoring the textual legitimacy of the Court’s decisions, with Clarence Thomas being the main critic of stare decisis, and Scalia defending the value of precedent.
The stare decisis debate will be front and center in the Supreme Court’s Dobbs case coming up this term regarding Mississippi’s ban on abortions after 15 weeks. If results-oriented conservatives and principled originalists were dismayed by Bostock, this is nothing compared to the volcanic reaction that will follow if two or more of the Court’s Republican-appointed justices side with preserving and entrenching at least some aspects of the Roe regime in Dobbs. A defeat in Dobbs would greatly increase the market for arguments such as the one that Hammer is selling. And the likeliest argument that might appeal to Chief Justice John Roberts and perhaps Justice Brett Kavanaugh for leaving Roe standing would be stare decisis.
Given the centrality of stare decisis to debates over originalism, it is surprising that Hammer scarcely mentions it, and does not attempt to construct a common-good justification for any particular approach to precedent. He has elsewhere argued for a Thomas-like approach to precedent, but in terms that acknowledge the importance of the originalist value of textual constraint:
For those normatively invested in the distinctly American form of republican self-governance to which the preamble’s “We the People” speaks, the notion that Supreme Court justices could be unleashed not merely to freely re-interpret the Constitution, but to actually alter its meaning, ought to strike us as the un-American tyranny of unelected black-robed oracles. . . . As a purely normative matter, Thomas’s approach to stare decisis is preferable to the approach advanced by Scalia. The popular sovereignty of which the preamble speaks is most easily reconcilable with constrained unelected judges, and their conscientiously attempting to discern the original public meaning of a text—preferably a morally “thicker,” Hamiltonian/Marshallian conception of the original public meaning—is the most intellectually compelling restraint imaginable.
What does invocation of morality add to constraint? Hammer does not say.
The Revenge of John Roberts
Hammer’s second set of targets is areas of the law in which Hammer thinks courts should be more deferential to the political branches of government. For example, he cites Fourth Amendment restrictions on the police and First Amendment rules protecting speech. In both areas, he contends, courts have gone too far by second-guessing cops and striking down common-good-promoting rules against obscenity, indecency, and defamation. To some extent, these are arguments that could be raised entirely within an unhyphenated-originalist framework, insofar as Hammer contends that the courts have departed from what these amendments were originally understood to mean. It is noteworthy, however, that in these areas, Hammer is making a Roberts-like argument for judicial modesty and deference rather than an affirmative case for a robust doctrine that legitimizes judicial action.
The parallel to Roberts becomes even clearer when Hammer turns to the topic of how courts should read statutes. Hammer expends a lot of rhetorical energy blasting textualism as “an acontextual, amoral, ahistorical, non-purposive, non-ratio legis–undergirded reading of a legal provision,” which is primarily a strawman version of textualism built out of Gorsuch’s departures from proper textualism in Bostock. But in explaining how he thinks statutes should be read, Hammer does not merely seek to reorient textualism around a richer understanding of context or original meaning, as he claims to do for originalism. Rather, he falls decisively on the side of purposivism or intentionalism rather than textualism, citing the ratio legis (the reason for a law) as bearing overriding importance. Then, he takes flight even further:
Ideally, judges might attempt to reconcile the ratio legis of a transient legislative act with the telos of the American political order and its Constitution . . . and thus read the statute’s text through that harmonized prism.
Hammer does not offer any examples from the case law, other than the explicitly textualist dissent in Bostock, for what his view of statutory construction would look like. About the only concrete example he seems to have in mind is rewriting Section 230 of the Communications Decency Act so that the legislative “findings” about the statute’s purpose would allow courts to override statutory text that nobody thinks is ambiguous.
Conspicuously missing from his discussion of this mode of analysis is the most notorious ratio legis decision in recent decades, which I cited the last time I critiqued Hammer’s project: King v. Burwell. Roberts, in King, addressed whether the Affordable Care Act provided subsidies only for health-insurance policies purchased on state-established exchanges, or also subsidized policies purchased on the federally created exchange. 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 said that it applied “regardless of whether the Exchange is established and operated by a State.”
The justification offered by Roberts for rejecting a textualist reading of the Affordable Care Act in King was precisely the one offered here by Hammer — that Obamacare was intended to pursue the common good and the general welfare by subsidizing health-insurance policies purchased on exchanges, and therefore, the Court should read the statute to advance that goal even if it meant mutilating the statutory language:
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.
Ratio legis! A similar ethos animated Roberts in the previous Obamacare case, NFIB v. Sebelius, in which he concluded that the individual mandate to buy health insurance exceeded Congress’s power under the commerce clause. Roberts then acknowledged that “the most straightforward reading of the mandate is that it commands individuals to purchase insurance,” yet he applied a “saving construction” to read the mandate as a tax rather than reading the statute as it was written. Roberts has likewise cited the judicial imperative to carry out the purposes of Congress when he has chosen the narrowest possible analysis of severability to prevent the Court from interfering with the operation of statutes even when major portions of them were unconstitutional.
In what terms could Hammer, having committed to the view that judges should pursue the common good and the purpose of statutes, criticize Roberts for these decisions? More broadly, if his goal is — as he states — to design “a jurisprudence that actually serves our substantive goals,” why would it be a desirable goal to promote broader, more-expansive readings of federal legislation? Most of the big federal laws on the books were written to serve the purposes of liberals. Elastic readings of them empower the bureaucracy, the plaintiff’s bar, and creative federal prosecutors, while placing citizens in greater fear of being swept unwittingly into the maw of the United States Code and its unruly and obese sidekick, the Code of Federal Regulations.
As to federal power more generally, Hammer argues, with some force, that Alexander Hamilton and John Marshall won the argument over how to read the Constitution in 1819 when Marshall, in McCulloch v. Maryland, upheld Hamilton’s view that a national bank was constitutional under the necessary and proper clause despite being nowhere enumerated as a specific power. As Marshall wrote, “let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” Hammer cites Marshall’s “prudential, nationalist, common good conservatism” as his judicial model.
It is certainly true that even few originalists today seriously advocate returning to the strict constructionist “interpretive straitjacket” of Thomas Jefferson and James Madison on the constitutionality of the bank. Even Jefferson and Madison, in their own time, came to live with it. But even setting aside how far one can reasonably read McCulloch as a warrant for expansive unenumerated federal powers, Hammer gives short shrift to the question of whether conservatives’ substantive goals are actually served by such an unchained Leviathan.
That Leviathan might even rewrite individual rights that appear to be plainly written in the text. As I have argued, the citizenship clause of the 14th Amendment was understood at the time to grant birthright citizenship, even in cases where many conservatives would consider that individual birthright to undermine the common good. Hammer suggests that “common good originalism would more readily support Professor [John] Eastman’s argument” against the constitution mandating birthright citizenship “due to the reasonable ‘construction zone’ interpretive ambiguity and the profound substantive harms that a mandated birthright citizenship interpretation would wreak upon cherished common good concepts such as national sovereignty and the sanctity of national citizenship . . .” One hesitates to ask what other individual guarantees might at some point be deemed subject to an “interpretive ambiguity” when a popular majority thinks they threaten “profound substantive harms.”
Other questions are unanswered. Should courts and the executive branch take a similarly permissive view of the inherent powers of the executive? How would common-good originalism differ either from originalism or living constitutionalism on questions of separation of powers or federalism? The assumption of even the most firmly nationalist Founders, after all, was that the states would play a much larger role in safeguarding the common good than would the federal government. Many of those state prerogatives have since been invaded and trampled. It is not at all clear that Hammer’s theory would not swamp the states with more federal pronouncements of the common good.
Letting the Preamble Ramble
Hammer’s third topic is his least-developed one: those situations in which the common good would be invoked as a sword by courts to limit rather than expand the power of democratic actors. He offers few concrete examples of this aside from a suggestion that the 14th Amendment might be read to affirmatively ban abortion. Even this is tentative; a more modest version of this “Lincoln Proposal” would simply authorize Congress to define a “person” protected by law to include the unborn.
In arguing for importing more substantive moral judgment into the interpretation of the Constitution, Hammer leans heavily on the Constitution’s preamble:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The traditional originalist argument is that the preamble matters a lot, but only because — like the Declaration of Independence — it creates the government and states the basis of its legitimacy: the action of “We the People” in ordaining and establishing a written Constitution. While the rest of the preamble illustrates what general purposes they had in mind, it does not actually create powers, much less any rules or standards that judges could apply.
The historical quotations marshaled by Hammer for the importance of the preamble do not actually offer support for reading it as a grant of power to judges to impose their own vision of, say, “Justice” or “the general Welfare.” For example, Hammer cites Joseph Story’s commentary:
The importance of examining the preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the preamble of a statute is a key to open the mind of the makers . . .
But what Story says shortly after that undercuts Hammer’s argument:
Here, we must guard ourselves against an error, which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the constitution, and not substantively to create them.
Hammer quotes James Madison saying, in Federalist No. 57, that “the aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society . . .” But this is Madison’s observation in describing the selection of members of the House of Representatives, introducing his discussion of how the structure of the House is designed to keep its members faithful to the people. It says nothing about the common good as a free-floating license to the courts.
It is true, as Hammer notes, that originalists sometimes overstate the extent to which their methodology produces clear and certain answers that call for no judgment. It is also true that judicial originalists do not always live up to their own principles. But if judges were angels, neither text nor judicial philosophy would be necessary. Hammer has advanced no better theory of legitimacy or constraint to justify tearing down originalism and starting anew. His proposed philosophy offers only an uncertain promise that more government power might be used wisely. Legal conservatives should decline the invitation.