COMMON GOOD ORIGINALISM: OUR TRADITION AND OUR PATH FORWARD.

• Author: Hammer, Josh

Herewith, a paradox. On the one hand, legal conservatism, originalism, and textualism have never been more ascendant and better-positioned within the legal academy and mainstream political discourse. But on the other hand, the state of conservative jurisprudence in America has reached a crisis point. (1)

The crisis point did not arrive overnight. The modern Republican Party's judicial nominations apparatus has often failed conservatives and constitutionalists, dating all the way back to President Dwight D. Eisenhower's fateful twin Supreme Court nominations of Justice William Brennan and Chief Justice Earl Warren. "I made two mistakes, and both of them are sitting on the Supreme Court," President Eisenhower famously said. (2) Justice Harry Blackmun, author of Roe v. Wade, (3) the twentieth century's moral and jurisprudential successor (4) to the Dred Scott (5) case, was a President Richard Nixon nominee. Justice John Paul Stevens, liberal lion of the Court for three and a half decades, was nominated by President Gerald Ford. President Ronald Reagan nominated the moderate Justice Sandra Day O'Connor and the idiosyncratic Justice Anthony Kennedy, the latter of whom would encapsulate both a gnostic relativism in metaphysics (6) and a jurisprudential commitment to individual autonomy maximalism (7) over the course of his Court tenure. President George H.W. Bush greatly erred in nominating Justice David Souter--he of the eponymous "No more Souters" fame--to the Supreme Court in lieu of the stalwart Edith H. Jones. President George W. Bush was similarly mistaken in selecting John G. Roberts over J. Michael Luttig for the position of Chief Justice of the Supreme Court. Suffice it to say that this is hardly a track record of sustained excellence.

According to prevailing mythology, everything changed when Donald Trump became President. At long last, conservatives and constitutionalists had a White House that was unambiguously, passionately committed to stacking the federal judiciary with principled originalists and textualists. This purported well-oiled machine, aided by outside actors with putative expertise in separating the would-be Souters from the true believers, was finally to deliver conservatives to the judicial promised land.

Then came Bostock v. Clayton County, (8) last summer's bitter disappointment in which the Court implausibly (9) wove both sexual orientation and transgenderism into a key plank of the nation's civil rights statutory edifice. The opinion, of course, was written by none other than President Trump's first nominee to the Court and the man who replaced Justice Antonin Scalia himself, Justice Neil M. Gorsuch. With one stroke of a pen, the Justice Gorsuch-led Court majority misconstrued the proscription of private employment discrimination on the basis of "sex" in Title VII of the 1964 Civil Rights Act as encompassing not merely "sex," but also "sexual orientation" and "gender identity." (10) In so doing, this highly touted product of the conservative legal movement evinced and highlighted for all the shortcomings of a literalist, acontextual, overtly positivist jurisprudence. (11)

That a man like Justice Gorsuch--closely vetted, with sterling academic credentials, formal natural law training, and top-flight social conservative support at the time of his nomination (12)--could write an opinion like Bostock ought to serve as a wake-up call not only for those who prize the necessity of interpreting legal texts according to those texts' original public meaning, but also for all conservatives who prioritize above all the pursuit of the classical substantive goals of politics qua politics: justice, human flourishing, and the common good. (13) The time has indeed come for those in America's modern legal conservative movement to engage in sober, contemplative self-reflection--to reassess our first principles, retire our outmoded bromides, and rebalance prudence and dogma (14) anew to reach a jurisprudence that actually serves our substantive goals. (15)

Too often, contemporary "legal conservatism"--as a methodology, not necessarily a specific judicial result--redounds against the interests of substantive conservatism itself. Legal conservatives too often pat themselves on the back for seizing a purported moral high ground of positivist neutrality, (16) content to brush aside every high-profile defection as an unfortunate but inevitable byproduct of our sacrosanct neutrality principle. By contrast, legal progressives, marching in lockstep to the inherently outcome-oriented methodology of Dworkinian living constitutionalism, never make such a first-order confusion of substance and "neutrality." Perhaps those perpetually pollyannaish legal conservatives would do well to consider why exactly it is that the legal Left has never had its "Bostock moment."

Fortunately, despite the precarity of our situation, our path forward is reasonably clear. That path forward is not a break with our tradition; rather, it is a rediscovery and implementation of our tradition and our true Anglo-American constitutional inheritance, properly understood and as previously intuited and promulgated by many of the greatest statesmen in American history. I call it "common good originalism." (17)

The post-1982 era (18) of the modern legal conservative movement has seen the doctrinal advancement of at least three distinct forms of originalism: progressive, libertarian, and conservative. (19) 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. (20) Progressive originalism is thus substantively, and not merely procedurally, progressive insofar as the interpretive precepts of Dworkinian living constitutionalism necessarily redound to substantive progressive priorities such as privacy, individual autonomy, and sexual liberation. 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. (21) Libertarian originalism, much like progressive originalism, is thus substantive, and not merely procedural, to the extent that the concomitant interpretive precepts of individual liberty and government minimization are at the core of substantive libertarianism (or what most political theorists would call classical liberalism). By contrast, "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. (22) Perhaps above all else, "conservative" originalism has historically prioritized the notion that there is only one "true" and historically honest answer to most questions of constitutional interpretation. (23) "Conservative" originalism, defined as such, thus fails to confront the obvious question of whether human beings are generally even capable of engaging in such stolid, substantively detached interpretations.

The careful reader should notice something curious. "Progressive" originalism has its idiosyncratic conception of morality built into its framework; such is the inherent nature of the claim that the original public meaning of sweeping constitutional clauses actually requires interpreters to judicially impose "evolving" notions of morality from the bench. Similarly, "libertarian" originalism is expressly rooted in the claim that normative ideals of individual liberty and Lockean liberalism serve as the background conceptual framework needed to reach the Constitution's legitimate original public meaning. But conservative originalists are left with nothing more than the thinnest gruel of rote proceduralist positivism. With only small and occasional exceptions, such as Justice Thomas's belief, contra that of Justice Scalia, in the nature of the Declaration of Independence and its natural law theoretical undergird as an "authoritative guide for judges," (24) conservative originalism, as it has been conceived and taught, has abandoned the realm of more avowedly moralistic exegeses. Progressive originalism and libertarian originalism--not to mention non-originalist methodologies, such as unabashed progressive Dworkinian "living constitutionalism"--have filled the void. 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.

This is wrong. As a consequentialist matter, it undermines conservatives' interests to synonymize their preferred approach with the bland dictates of positivism; human beings, as Aristotle discussed at length so long ago, are at their core moral creatures, and preemptively foreclosing legal actors the ability to make overtly moralistic argumentation is "an attempt to deprive us of the very faculties that make us human in the first instance." (25) Moreover, the conflation of any purportedly legitimate jurisprudence with the barest form of positivism--illustrated by Justice Scalia's decades-long vehement arguments against any role for the Declaration in constitutional interpretation--is a higher-order philosophical mistake of first principle. 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. Much as the free market must be regulated when it is not sufficiently serving these ends--antitrust law, for example--so too must the bare-bones positive law be modified or...