- Damon Root
The Trouble With 'Common Good Originalism' A new conservative faction embraces "authoritative rule
As far back as I can remember, conservatives have attacked liberal judges for substituting their policy preferences for the text of the Constitution, and for trying to cram the entire progressive agenda onto a handful of provisions (the Commerce Clause, the Necessary and Proper Clause) that were never meant to carry such weight. But the times are changing. Now, a new conservative faction is aiming to beat the results-oriented liberal judges at their own game.
Writing in the latest issue of the Harvard Journal of Law & Public Policy, conservative lawyer and Newsweek opinion editor Josh Hammer urges his fellow travelers on the right to embrace a new "jurisprudence that actually serves our substantive goals." What goals? "Conservatism in the Anglo-American tradition," Hammer argues, "is preeminently concerned with the societal health and intergenerational cohesion of the nation-state, with the structural integrity and formative capability to inculcate sound republican habits of mind in the intermediary communitarian institutions that exist between citizen and state, and with the flourishing of individual citizens in a way that serves God and nation and comports with the great Western religions' conceptions of the teleological ends of man." This "conservatism," Hammer explains, "is thus more open to wielding state power, when need be, to 'enforce our order,' or even to 'reward friends and punish enemies.'"