Josh Hammer and originalism’s entropy

Constitutional theory is abstruse and nerdy. The only reason you should care about it is that, if it is badly done, it can turn America into an oppressive tyranny or a failed state. So, it is alarming that the so-called “common good originalism” propounded by Newsweek opinion editor Josh Hammer is being taken seriously by rightwing intellectuals.  

Hammer says he lost faith in the leading legal theories after Supreme Court Justice Neil Gorsuch wrote for the majority in Bostock v. Clayton County that discrimination against gay and transgender people is unlawful discrimination under Title VII of the Civil Rights Act of 1964. Gorsuch probably did not like that result, but, as a follower of Antonin Scalia’s idea that judges should follow the plain text of the law, thought the language of the statute gave him no choice. (Disclosure: I was one of the lawyers who worked to persuade him of this, and I have defended the Court’s decision.)

Hammer thinks Bostock “evinced and highlighted for all the shortcomings of a literalist, acontextual, overtly positivist jurisprudence.” Value neutral textualism “redounds against the interests of substantive conservatism itself.” His answer is to abandon the plain meaning of written laws. “In our constitutional order, statutes are necessarily subordinate to the Constitution itself . . . and they thus ought to be construed through the prism of the Constitution’s ratio legis and substantive aims, as expressed in the Preamble.” Those substantive aims prevail only “when there is a reasonably close interpretive question,” but he sees a lot of those. A judge’s job, when confronted with a statute or an executive action, is to decide (what one might once have thought was up to elected officials) whether it “can finally be judged as justified or unjustified, defensible or wrongful.”

How could the Preamble help him? You probably heard somewhere that America is the land of the free, conceived in liberty. Hammer disagrees: 

“at no time in the Preamble is individual liberty put forth as an intrinsic substantive end of the U.S. constitutional order. The end of ‘secur[ing] the Blessings of Liberty to ourselves and our Posterity’ is the closest, but even here ‘Liberty’ is an instrumental means through which to attain the sole true substantive goal, the appurtenant ‘Blessings’ thereof.”

What the Constitution guarantees is “true liberty, which entailed the dutiful worship of the Creator in accordance with the moral guardrails of one’s Judeo-Christian conscience.” So, judges have to decide whether any particular exercise of liberty is a blessing or not. The Preamble, he writes, points toward “principles of natural justice and the commonweal, especially when those principles are weighted against extremist (even caricaturable) claims of ‘liberty’- or autonomy-maximizing positivist legal construction.” This approach “is thus more open to wielding state power, when need be, to ‘enforce our order,’ or even to ‘reward friends and punish enemies.'” 

In determining, for example, the scope of free speech protection, “substantive argumentation about the moral worth of any particular flavor of speech is wholly appropriate.” You can forget about any substantive protection for abortion or same-sex marriage. Hammer will be happy to tell you which exercises of liberty are or are not “blessings,” in case you happen to be confused about that.(Pornography is not, but refusing COVID-19 vaccination is.) He is nostalgic for “the criminalization of blasphemy, and the legal proscription of all sorts of hedonistic debauchery.”

He professes to be conservative, but conservatism is about preserving the good things we have inherited. Like many originalists, he seems to dislike the country he lives in, “the depressing realities of today’s de-Christianized America.”

Hammer understands the framers’ purposes so abstractly that they are no constraint on judges at all, like the advice from A.E. Houseman’s parody of Greek tragedy:

“And, O my son, be, on the one hand, good,

And do not, on the other hand, be bad;

For that is very much the safest plan.”

When Hammer recently came to Northwestern Law, where I teach, some students protested his appearance, because he has said unpleasant things about transgender people. But I am glad he came. He has important lessons to teach us, though not the ones he intends.

Hammer is the final entropy of one type of originalism. Originalism has always had two aspects: a novel, principled theory of interpretation (whether it was sound is another question) and a formula for reaching results congenial to the Republican Party. The first of these always threatened to decay into the second. With Hammer the decay is complete. 

A few years ago, I proposed that, among the varieties of originalism, we should count “what we can call Maximally Degraded Originalism: The Framers were very wise men. Therefore it follows that they would have agreed with me.” I was kidding; Hammer isn’t. 

Hammer is ambivalent about former President Trump, but he shares his contempt for our inherited legal order. Bostock showed that to the extent that judges are principled originalist textualists, Republicans can’t count on them to be reliable apparatchiks. Hammer’s theory, on the other hand, offers the constitutional law version of Trumpism: The rules are no fair unless we always win.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming).  Follow him on Twitter @AndrewKoppelman.