Newsweek 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.
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