Published March 2, 2021
The immediate aftermath of Justice Amy Coney Barrett’s appointment to the Supreme Court is a strange time to urge conservatives to repudiate Justice Antonin Scalia’s twin interpretive methodologies of originalism and textualism. But that’s exactly what Josh Hammer does in his recent Public Discourse essay, in which he proposes to bolster a conservative policy agenda with a substitute “jurisprudential framework” that he labels “common-good originalism.”
I’m very puzzled by Hammer’s piece. Let’s start with his critique of the “regnant ‘legal conservative’ status quo” that he properly associates with Justice Scalia. Under Scalia’s approach, the duty of a judge is to interpret legal texts according to their objective meaning at the time they were adopted. For constitutional interpretation, his approach has become known as originalism (or, more specifically, public-meaning originalism). In the field of statutory interpretation, it is typically called textualism. But it’s fair to refer to them both, as Hammer does, under the common rubric of originalism.
Hammer offers two arguments against Scalia’s originalism. First, he contends that it “was dealt a grievous blow in last June’s Bostock v. Clayton County,” in which Justice Gorsuch’s majority opinion held that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of . . . sex” in violation of Title VII. Hammer condemns Gorsuch’s purported exercise of textualism in that case as “rank analytical sophistry,” and I agree with him.
But Hammer can’t have it both ways. A bungling carpenter should not lead you to condemn the craft of carpentry. In the same way, if, as Hammer and I believe, Gorsuch’s opinion is an unsound exercise of textualism—a “pirate ship” that “sails under a textualist flag,” as Justice Alito put it in his dissent—then it is an indictment of Gorsuch, not an indictment of textualism. As the genuinely textualist dissents of Justice Alito (joined by Justice Thomas) and of Justice Kavanaugh show, textualism cannot be blamed for the terrible result in Bostock.
Hammer claims, second, that Scalia’s originalism is “a morally denuded, overtly positivist jurisprudence that is at odds with the broader Anglo-American legal tradition and belies our unique American constitutional order’s unambiguous prioritization of substantive ends.”
Scalia believed that judging is distinct from legislating; that judicial interpretation is a craft that requires judges not to indulge their own moral or policy preferences; that lawmakers—the Framers and ratifiers of constitutional provisions and ordinary legislators—embed values in the Constitution and in statutes; and that judges properly give effect to those values in construing legal texts to mean what they say. I wonder how many of Hammer’s readers grasp that that set of beliefs is what he is dismissing as “a morally denuded, overtly positivist jurisprudence.”
Hammer is simply wrong when he claims that Scalia’s originalism, properly understood, “is at odds with the broader Anglo-American legal tradition and belies our unique American constitutional order’s unambiguous prioritization of substantive ends.” The very authorities that Hammer invokes in support of his common-good originalism undercut his claim. In his famous Federalist No. 78, Alexander Hamilton predicated the very existence of the power of judicial review—the ability, that is, of a judge to decline to enforce a statute on the ground that it violates the Constitution—on the proposition that judges must be neutral arbiters of legal meaning:
It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. . . . The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
Justice Joseph Story likewise declared that the Constitution
is to be interpreted, as all other solemn instruments are, by endeavoring to ascertain the true sense and meaning of all the terms; and we are neither to narrow them, nor to enlarge them, by straining them from their just and natural import, for the purpose of adding to, or diminishing its powers, or bending them to any favorite theory or dogma of party.
Hammer’s affirmative case for his common-good originalism also leaves me mystified. Hammer calls for a “flavor” of originalism that “is intrinsically oriented toward substantive conservatism.” He maintains that the Preamble to the Constitution should be the “exegetical prism” through which “both constitutional provisions and [federal] statutes” should be interpreted. But given the very general terms in which the Preamble sets forth the purposes of the Constitution, how does he imagine that consideration of it would meaningfully affect judicial interpretation—or how, if it did, this would lead to conservative results?
To put the question concretely, does Hammer think that a justice deciding the legal question in Bostock should have considered which interpretation of Title VII best “establish[ed] Justice, insure[d] domestic Tranquility . . . and secure[d] the Blessings of Liberty to ourselves and our Posterity”? If so, aren’t such malleable considerations a convenient guise “to exercise WILL instead of JUDGMENT”—to put a heavy thumb on the scale to reach any desired result? Further, why does Hammer imagine that jurists would apply common-good originalism as he wishes? If common-good originalism had been dominant a year ago, why wouldn’t the justices in the Bostock majority have freely invoked common-good originalism for their own purposes?
Why isn’t that a “grievous blow” against his own theory?
Again, the authorities that Hammer invokes don’t seem to provide him any significant support for his ambitions for the Preamble. Hammer cites Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819) as a supposed exemplar of common-good originalism. And if there was ever an instance in which you might have expected the purposes set forth in the Preamble to be invoked, it would be that opinion. But Marshall refers to the Preamble only once, and he does so to establish that the Constitution was an act of “We the People” that “bound the State sovereignties,” not to discern any light that its purposes might shed on whether Congress had the power to establish a national bank. Justice Story elsewhere emphasizes that the Preamble “never can be resorted to, to enlarge the powers confided to the federal government,” and he instead indicates that it would play a role in the interpretive process only when “the terms of a given power admit of two constructions, . . . one [of which] would promote, and the other defeat” a purpose set forth in the Preamble.
Hammer ends his essay by providing some examples of cases in which common-good originalism would help “to judicially and politically secure the substantive goods” of “marriage and life, religion, education, and justice.” But Hammer’s examples broadly reflect Scalia’s positions. (One limited—but important—exception is whether the Constitution leaves abortion policy to the states, as Scalia believed, or instead requires them to protect unborn human beings, as Hammer suggests. Even on this matter, the strongest support for Hammer’s position has been provided by proponents of public-meaning originalism.) So it’s unclear what Hammer imagines common-good originalism would achieve that Scalia’s originalism wouldn’t—even if we lived in a world in which Hammer were the ultimate arbiter of what common-good originalism would generate.
My final perplexity is why Hammer thinks that trashing Scalia’s originalism and replacing it with his idiosyncratic, results-oriented version is strategically prudent. After decades of struggle, the conservative judicial project has finally produced a possible working majority of five originalists—four justices (Thomas, Gorsuch, Kavanaugh, and Barrett) who identify as public-meaning originalists and a fifth (Alito) who has called himself a “practical originalist”—along with a frequent ally in the Chief Justice. There are zero justices who embrace Hammer’s common-good originalism.
To be sure, there are plenty of reasons (not just Bostock) to wonder how consistently the originalist justices will coalesce in practice and especially how willing they will be to revisit wrong precedent. But I don’t see how declaring the need for a new conservative approach to judging is likely to help matters.
Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies.