Law & Constitution — Originalism Does Not Need a Makeover

Newsweek 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.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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Newsweek 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.