Hammer 2021 Common Good Originialism

Summary

Overrides popular sovereignity: While common good originalism is distinct from Professor Vermeule’s own “common good constitutionalism” theory of interpretation, it nonetheless shares Professor Vermeule’s belief that solipsistic citizens’ “own perceptions of what is best for them” are, for all intents and purposes, constitutionally irrelevant. (953) [emphasis added]
Allows states to ignore the Supreme Court: We must leave no stone unturned, including ... ending once and for all the anti-constitutional but nonetheless widely held post-Cooper v. Aaron belief in judicial supremacy. [held that "States must obey the decisions of the Supreme Court and cannot refuse to follow them." Desegregation case. "... plan of desegregation are reinstated, effective immediately."] [emphasis added]

Asserts that conservative originalism does not a normative constitutional interpretation.
Conservatism is preeminently concerned with the nation-state, communitarian institutions, and the teleological ends of man.
Focuses on claimed common good concepts of the Preamble.
Ignores the individual rights focus of the second paragraph of the Declaration ... all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, ....

Fundamental conception: man as means to fulfill another's ends.

Does not fit with the Major Questions Doctrine recently created.
Declines to accept responsbility for resulting conclusion regarding Eight Amendment.
Declines to state, as opposed to reference, conclusion regarding birthright citizenship.

Hammer, Josh Common Good Originalism (PDF) 2021

Bostock v. Clayton County: Neil M. Gorsuch ... all the shortcomings of a literalist, acontextual, overtly positivist jurisprudence.
That ... Gorsuch ... could write an opinion like Bostock ought to serve as a wake-up call ... but also for all conservatives who prioritize above all the pursuit of the classical sub- stantive goals of politics qua politics: justice, human flourishing, and the common good.
Too often, contemporary “legal conservatism” ... redounds against the interests of substantive conservatism itself.
Progressive originalism’s champions, namely Professor Jack Balkin, essentially argue that the Constitution’s original public meaning paradoxically requires an interpretive methodology of Dworkinian living constitutionalism. ... substantive progressive priorities such as privacy, individual autonomy, and sexual liberation. ... claim that the original public meaning of sweeping constitutional clauses actually requires interpreters to judicially impose “evolving” notions of morality from the bench. (921)
Libertarian originalism’s champions, namely Professors Randy Barnett and Richard Epstein, argue that the Constitution must be interpreted in light of an underlying presumption of liberty or an underlying normative framework of Lockean classical liberalism. ... precepts of individual liberty and government minimization .... ... claim that normative ideals of individual lib- erty and Lockean liberalism serve as the background conceptual framework needed to reach the Constitution’s legitimate original public meaning. (922)
... “conservative” originalism, frequently associated with the late Judge Robert Bork and the late Justice Scalia, has historically been understood as a popular sovereignty-based positivist approach that often entails some conception of judicial modesty or judicial restraint. ... rote proceduralist positivism. (922)
Self-described conservative originalists have thus been left without resort to any normative argumentation in constitutional interpretation. We have wholly denuded ourselves of conservative substance. (923)
The rule of law, like any other societal institution—such as the market—is best conceptualized not as an end unto itself, but rather as an instrumental means to achieve the historically understood substantive goals of any worthy politics: justice, human flourishing, and the common good.
The American rule of law and our American constitutional order must conform with the teleology of mankind--not the other way around.
... first understand what substantive “conservatism,” rightly understood, even is.
Second, we must understand the historical extent to which background substantive norms of conservatism, rightly understood, are, or should be, ingrained in the extant U.S. constitutional order.
... let us stipulate that “conservatism” ... is more empirically rooted in the historical customs, norms, and traditions of distinct communities, tribes, and nations. ... conceives of most forms of individual liberty ... more as instrumentalities than as intrinsic ends to be pursued unto themselves.
Rather, conservatism in the Anglo-American tradition is preeminently concerned with (925)
- the societal health and intergenerational cohesion of the nation-state, with
- the structural integrity and formative capability to inculcate sound republican habits of mind in the intermediary communitarian institutions that exist between citizen and state, and with
- the flourishing of individual citizens in a way that serves God and nation and comports with the great Western religions’ conceptions of the teleological ends of man.
It seems, rather, that the Founders who drafted the Constitution viewed the protection of natural rights and the expansion of individual liberty less as intrinsic ends, and more as a “means by which citizens could pursue a common good.”
In total, there are seven enumerated ends of government in the Preamble .... Each and every one of these seven pronounced aims represents the statesman’s view and description of the common good of the nation as a whole.
There is, quite simply, nothing in the Preamble that reduces to the protection and promotion of individual rights.
[Six pages (927-932) focused on the preamble as common good, NOT individual rights.]
In the eyes of many, the Declaration [of Independence] has ... take[n] on a mythical status not only as a political and histor- ical document but also as an indispensable tool of constitutional in- terpretation itself.
[Ignores the individual rights focus of the second paragraph of the Declaration ... all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men,]
[Seven pages (933-939 quoting Hamilton, Story and others claiming a common good focus]
“Paine and Jefferson asserted that the Constitution resulted from rationalist ideals about ‘rights of man,’” while “Burke, with Hamilton and [John] Adams, insisted that the American Constitution ... was deeply inspired by the English constitution and the English Bill of Rights. [which contains an enumeration of individual rights among numerous other matters]
Common good originalism ... is the modern-day manifestation of our conservative Anglo-American legal tradition. (939)
Common good originalism is, in any meaningful sense of the term, a more authentically “conservative” originalism than the banal strand of positivism, ....
Such a desiccated positivism would also have been anathema to the leading English forebears whose views on jurisprudence so profoundly shaped the Founding generation and our own constitu- tional order.
These are, broadly speaking, the central tenets of common good originalism as a distinctive methodology of constitutional (and statutory) interpretation: (942)
- a Preamble-imbued, non-positivist reading of the Constitution--and statutes passed pursuant thereto--that is rooted in the teleology and ratio legis of a legal enactment, and
- which redounds to the common good and national weal of the citizenry when such outcomes are in direct tension with the maximi- zation of individual autonomy. (942)
The first core tenet of common good originalism is to channel rudimentary Burkean conceptions of epistemological humility and forthrightly concede that the original public meaning of many other clauses in our majestic national charter is more susceptible to competing interpretations that are well within the range of historical plausibility. [emphasis added]
The first common good originalist move is thus to accept epistemological humility and admit that many leading originalists have likely overstated the extent to which the originalist methodology will always arrive at the one, true, historically “right” legal answer. [emphasis added]
The act of interpreting ... through the Preamble-inspired prism of the common good, and with a more Blackstonian conception ... can often help to narrow down a provision’s interpretive endpoint possibilities ....
... political and judicial ac- tors utilizing common good originalism can then attempt to construct the soundest distillation of a genuinely common good-oriented jurisprudence ....
Some concrete examples will hopefully help demystify and explicate.
... at the time of its ratification, “the First Amendment ... recognized only a few established rules, leaving broad latitude for the people and their representa- tives to determine which regulations of expression would promote the public good.” [emphasis added]
A natural corollary is that natural law-undergirded substantive argumentation about the moral worth of any particular flavor of speech is wholly appropriate.
At the time of the Founding, the “freedom to express thoughts [in writing] . . . was limited to honest statements—not ef- forts to deceive others.”
This had strong implications for the Sedition Act ... in the eyes of leading Federalists .... [does not take a position on the Sedition Act]
... “that every author is responsible when he attacks the security or welfare of the government or the safety, character, and property of the individual”118—ought to be revitalized ....
... the Fourth Amendment sought to remedy—in other words, its ratio legis—was the noxious practice of the “general warrant,” wherein a government agent was afforded wide latitude to search or seize unspecified places or persons.
In the realm of Fourth Amendment jurisprudence, then, judges implementing an approach of common good originalism should be highly deferential to the good-faith, “reasonable,” split-second, on- the-spot decisions of law enforcement officers.
Next consider the Eighth Amendment’s ban on the government infliction of “cruel and unusual punishments.” [emphasis added]
... common good originalism generally comfortable deferring to the good-faith republican or plebiscitary decisions of those tasked with deciding the propriety and probity of the death penalty, as well as the specific methods employed therein when the practice is bestowed legitimacy in the first instance.
... generally best left to be determined, within reason, by majorities acting within their legitimate spheres of influence as agents of a sovereign people.
abortion Here, common good originalism ... according to which state-sanctioned abortion is itself unconstitutional, regardless of what plebiscitary majorities purport to decide. [emphasis added]
Fourteenth Amendment-mandated birthright citizenship Here too, common good originalism would more readily support Professor Eastman’s argument .... [emphasis added] [OMITS Eastman's conclusion "In other words, birthright citizenship is contrary to the principle of consent that is one of the bedrock principles of the American regime."
Table of Contents

© Jonathan M. Bresler