The University of Chicago Law School’s Federalist Society chapter recently hosted UChicago Law alumnus and Newsweek opinion editor Josh Hammer for a debate over constitutional interpretation. He advocated for his new theory of “common good originalism,” whereas his former professor William Baude embraced bona fide original-edition originalism.
The implications of the February 9 Baude–Hammer debate for conservative jurisprudence are significant.
The Underlying Intellectual Currents
The debate showcased the cutting edge of conservative legal theory. For the past 40 years, constitutional interpretation has been a battleground between mostly Republican originalists and mostly Democrat living constitutionalists. Democrats had the upper hand from approximately 1953 to 2016, allowing them to warp constitutional law into a vehicle for accomplishing their own political goals (see: Roe v. Wade).
Originalism, which held that judges should decide constitutional cases based upon the document’s original meaning rather than making policy like philosopher-kings, was the Reagan-era response.
Enter Harvard Law Professor Adrian Vermeule, who proposed, in the Atlantic essay “Beyond Originalism” and the book Common Good Constitutionalism, “common good constitutionalism.” He believes that originalism is an inadequate remedy for the progressive-libertarian takeover of the judicial system and the administrative state, along with its concomitant negative effects on the rule of law, local communities, the American nation-state, and the natural family.
Vermeule’s conservative “common good constitutionalism” is the substantive opposite, but procedural analog, of “living constitutionalism.” Essentially, Vermeule wants judges to shape the law to advance the principles of community, family solidarity, and morality instead of progressive-libertarian political ends.
The Hammer Contribution
Vermeule’s ideas made waves in judicial and academic circles, inspiring Hammer to put forward a refinement that he calls “common good originalism.” His philosophy proceeds along these lines: Whenever the text of the Constitution fails to provide a clear answer to a dispute, this ambiguity, which Hammer calls “the construction zone,” should be resolved by resorting to the common good aims of the Constitution’s preamble—which he believes contains the “telos, or the ratio legis” of the American regime.
If the February 9 debate is any indication, Baude is heavily skeptical of his former student’s theory. He argued with some force that pushing aside the text, principles, and original meaning of the Constitution to make room for a “common good” analysis is a conservative form of judicial activism.
Baude worried that Hammer and the “common good originalists” might be just as “excited” to find ambiguities in constitutional cases as the “living constitutionalists” are.
As an exemplar of “common good originalism,” Hammer pointed to Justice Alito’s recent dissent in Snyder v. Phelps—a Supreme Court case involving the Free Speech Clause. Hammer endorsed Alito’s dissent, which claims that free speech is not unlimited but can be restricted for the common good.
Like Alito, Hammer proposed that speech enjoys constitutional protections only if its value is “to arrive at societal truth”; speech that lacks such value is merely “blasphemous and harmful” and is not constitutionally protected.
Baude pushed Hammer for a deeper analysis, asking what “common good originalism” would have to say about the Sedition Act, which criminalized criticism of the Federalist Adams administration, or birthright citizenship under the Constitution. With respect to the former, Baude observed that under the Sedition Act, even factual criticism was illegal if the speech was “sufficiently scurrilous and effective.”
Such questions, unanswered at the end of Baude and Hammer’s fast-paced hour, await resolution.
