If This is Conservatism, You Can Have It

"I share Vermeule’s vision of a conservative future which relies more on the assertive sword of 'Ahmari-ism' " https://t.co/driX9JxMxw

— Sohrab Ahmari (@SohrabAhmari) May 7, 2020

America Mind: Common Good Originalism by Josh Hammer

Common Good Originalism

There have always been competing flavors of originalism, and here again I share Vermeule’s distaste for many.

On the one hand, the most banal sort of positivism—the “one man’s vulgarity is another’s lyric” pluralistic argle-bargle Vermeule lambasts and Justice Samuel Alito dismisses in his Snyder v. Phelps (2011) dissent—must be rejected for the moral relativism that it is. On the other hand, we must also reject the donor-class legal libertarianism that relentlessly obsesses about overturning administrative law edicts like Chevron U.S.A. v. National Resources Defense Council (1984) and Auer v. Robbins (1997) but is actively complicit in natural law-subversive, individual autonomy-maximizing cases like Lawrence v. Texas (2003) and Obergefell v. Hodges (2015).

A “common good originalism” is therefore our best path forward. Allow me to briefly sketch the outlines of a framework.

Common good originalism rejects the legal Right’s decades-long infatuation with the great “strict constructionist” founding-era Virginians, Madison and Jefferson, preferring instead the constitutional outlook of Hamilton, Burke’s heir apparent on American soil. Hamilton, like Burke, was not merely a staunch nationalist who preferred learned empiricism to rationalist abstraction—he was also the “original originalist” because of the strong view he took of English common law’s role in early-republic American jurisprudence. “I believe the British government forms the best model the world ever produced,” Hamilton told the delegates of the 1787 constitutional convention.

I suspect Vermeule, who in 2015 dismissed the siren song of the legal “straitjacket” in favor of a “comfortable garment that allows flexibility while retaining its basic shape,” might like to claim the expansive constructionist Hamilton as his own. But that would be mistaken. Hamilton’s respect for constitutional text, admiration for English constitutionalism, and appreciation of that constitutionalism’s roots in the natural law all make him a better fit for the Anglo-American conservative tradition than for Vermeule’s more Continental European vision of governance.
Hamilton’s commitment to constitutional originalism is seen most explicitly in his 1791 Opinion as to the Constitutionality of the Bank of the United States: “whatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.” And it was on that precise issue, the constitutionality of a national bank, that Hamiltonian originalism—as applied to the Necessary and Proper Clause of Article I, §8, the interpretation of which bitterly divided Hamilton and the Virginians—was most clearly vindicated.

In the landmark case of McCulloch v. Maryland (1819), Chief Justice John Marshall famously rejected the “absolute physical necessity” interpretation of the Necessary and Proper Clause dictated by Madison’s strict construction, instead holding for Hamilton’s vision: “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.” The correctness of Marshall’s opinion is universally recognized in originalist circles; in his Sabri v. United States (2004) concurrence, even Justice Thomas opined that Marshall “carefully and effectively refuted” the strict “absolute necessity” construction.

What’s more, Chief Justice Marshall’s opinion refers expressly to the “public good” and relies more broadly upon an unspoken natural law motif. Judge Bork himself once noted that a “method of reasoning from the implications of written constitutional principles to subsidiary principles is indispensable and was brilliantly demonstrated by Marshall’s opinion in McCulloch v. Maryland.” This prudential, nationalist, common good-centric jurisprudence, and not the strict constructionism and philosophical rationalism run amok of the Virginians, remains today our true conservative inheritance.

Common good originalism should adopt the conservatism of Hamilton, Marshall, and Justice Joseph Story as its jurisprudential lodestar. The interstices naturally permitted by a more expansive constructionism will, assuredly, provide ample room for jurists to deploy substantive moral argumentation along the lines favored by scholars like Jaffa and Arkes. Furthermore, by rejecting hyper-literalist free speech absolutism, common good originalism permits (within reason) natural law-undergirded arguments about the moral worth of one’s speech, such as Alito’s dissent in Snyder: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

Common good originalism also rejects natural law-subversive “originalist” claims about constitutionally mandated marriage redefinition that would undermine the common good, risible anti-sovereigntist “textualism” claims about constitutionally mandated open borders that would wreak havoc upon the common good, and so forth.

This is only a bare-bones beginning. And I know, of course, that I will not persuade Vermeule himself. But my aim is to lay out a framework upon which to build an assertive, moralistic, Burkean/Hamiltonian conservative jurisprudence. This jurisprudence is also legitimate, from a positive law perspective, because it is rooted in (an expansive construction of) the constitutional text and thereby avoids the “oath-breaking problem” posed by Article VI of the Constitution.

 Straussian making a play for influence, as usual. When was the last time you saw a Straussian step out of the ivory tower to become a prepper?

Sign of the times:

“Pure legal positivism and the elevation of procedure to the complete detriment of substance, most frequently associated with the jurisprudences of the late Judge Robert Bork and the late Justice Antonin Scalia, must be rejected.“ https://t.co/mks5dNQ3UP

— Adrian Vermeule (@Vermeullarmine) May 7, 2020

Keep dreaming...

Revealing that the only real argument against common good constitutionalism à la @Vermeullarmine is the question-begging claim that abandoning originalism implies "oath-breaking."

The very point at issue is what the Constitution means and how it should be interpreted. https://t.co/q9YG1HbhsS

— Rafael de Arízaga (@RafaeldeArizaga) May 7, 2020

An a nuAmerican still claiming to be an expert on the Anglo-American tradition...