politics

Reimagining the Conservative Legal Movement

Opinion Editor, Newsweek
Cato Institute
Genesis
Response
Penultimate
Finale

Josh Hammer

Opinion Editor, Newsweek

February 22nd, 2021
"The definition of insanity," goes the (likely aprocryphal) aphorism oft-attributed to Einstein, "is doing the same thing over and over again and expecting different results."
It is long past time for the legal conservative movement to internalize this lesson. Since the movement's modern advent in the 1980s, substantive conservative legal victories of the District of Columbia v. Heller sort have been few and far between. Far more often, Republican-nominated Supreme Court jurists—Anthony Kennedy, Sandra Day O'Connor, David Souter, John Roberts—have disappointed in big cases and proven pliable as would-be "useful idiots" du jour.
This might be an acceptable outcome for positivists who lionize above all other considerations value-neutral proceduralism and certain attendant interpretive methodologies and canons of constitutional or statutory construction. My interlocutor, for example, reacted to last term's lamentable bit of Neil Gorsuch-penned analytical sophistry titled Bostock v. Clayton County with a profoundly non-substantive take: "We're All Textualists Now."
But those of us who understand that our constitutional order prioritizes substantive justice and the common good above second-order procedural concerns might be left nodding in agreement with the precocious Senator Josh Hawley (R-MO): "If you can invoke textualism and originalism in order to reach such a decision [as Bostock]...then textualism and originalism and all of those phrases don’t mean much at all."
For decades now, legal conservatives have sought the moral high ground of originalist principle against obstinate progressive adherence to outcome-oriented Dworkinian "living constitutionalism." We may sleep well at night with our unblemished hands (one of which is alway tied behind our back), but it is worth asking: Aside from religious liberty—a notable exception—what exactly is it that conservatives have been able to conserve?
An all-of-the-above strategy to fight back is required. Curricular and pedagogical reform in the legal academy is desperately needed. So too do conservatives need to double down like never before on judicial nominations, including the use of crass, admittedly over-inclusive remedies such as a moratorium on Harvard Law and Yale Law graduate Supreme Court nominees and a pause on all nominees who specialize in administrative law (a largely libertarian fetish whose subject-area specialization can come at the expense of reliability on core conservative civilization concerns; e.g., Justice Gorsuch).
Finally, and perhaps most provocatively, we must rethink our approach to conservative jurisprudence itself. Something more is clearly needed: A flavor of originalist jurisprudence that is substantively and intrinsically conservative as such, while also retaining legitimacy. I call my approach "common good originalism."
Common good originalism, unlike "judicial restraint"-emphasizing positivist conservative originalism, construes constitutional provisions through the exegetical prism of the Constitution's Preamble to both more authentically channel our Anglo-American inheritance and resolve interpretive ambiguities in a way that redounds to the traditional conservative goals of justice, human flourishing, and the common good. Common good originalism is the jurisprudence of Alexander Hamilton, John Marshall, Joseph Story, and other leading early-republic luminaries. It will help conservatives bury insipid positivism, push back against the libertarians to whom we too often play second fiddle, and resist a hegemonic Left.
0 Comments