Toward a New Jurisprudential Consensus: Common Good Originalism

We conservatives now find ourselves trying to plot a course forward in the aftermath of the tumultuous Trump presidency.

It is imperative that all conservatives, whatever our various doctrinal or attitudinal differences, unify around a rejection of the “dead consensus.” We must accept that there is no going back to the outmoded pieties of John McCain and Paul Ryan. President Trump was a wrecking ball—a hurricane, as American Compass’s Oren Cass has often described him, whose destructive warpath laid bare the dilapidated foundations of decaying infrastructure, institutions, and ideas. But the hurricane left in its wake little in the way of substance. Now is the moment to start building anew.

Toward that end, the editors of Public Discourse have performed a great public service with their exemplary recent statement, “Toward a New Consensus: An Invitation.” The editors are correct to commend both a tactical ecumenicism, centered around a statesmanship of prudence and a humble recognition of politics’ inherent limitations, and a substantive prioritization of issues pertaining to marriage and life, religion, education, and justice. Furthermore, their exhortation that “any viable conservative coalition must find ways to preserve the goods that unite us by honestly confronting and responding to the forces that endanger them” is a great place for any forward-looking conservative reckoning to begin. Any such coalition must be cognizant of the left’s ever-ascendant hegemony over and near-monopoly on institutions of meaningful cultural and economic clout.

This emerging conservative consensus, centered around a multiracial working-class political coalition and sometimes referred to as the “New Right,” is one unafraid to challenge the economic and cultural deregulatory excesses of neoliberalism. It is a political consensus more comfortable wielding genuine political power in service of conservative ends, eschewing the overly liberalized and defensive politics of yore by reconceiving politics along more traditionalist lines, as the classical civilizations might have done—as a craft and an art form, the perfection of which is perhaps impossible but the adept development of which is nonetheless necessary given man’s condition. Such a conception of conservatism might sit in a state of very mild tension with the Public Discourse editors’ appeal to reject a “totalizing politics,” but that mild tension—if it does exist—is intellectually healthy.

But while there has been no shortage of think pieces about what the tactical, coalitional, or substantive elements of the new conservative fusion or agenda might look like, too few have theorized about what a jurisprudential component of this agenda might entail. I have lent my modest help to this effort, and will continue to do so.

I call my jurisprudential framework “common good originalism,” and I would humbly submit that it be adopted as conservatives’ new legal standard-bearer—a worthy complement to other simultaneously unfolding New Right/“new consensus” intellectual efforts.

Why Do Conservatives Need a New Legal Framework?

The regnant “legal conservative” status quo was dealt a grievous blow in last June’s Bostock v. Clayton County. In that case, Justice Neil Gorsuch, the late Justice Antonin Scalia’s carefully vetted successor, rewrote the anti-employment discrimination Title VII provision of the 1964 Civil Rights Act to define “sex” as also encompassing sexual orientation and “gender identity.”

Gorsuch’s rank analytical sophistry baffled many leading social conservatives. It also laid bare the pitfalls of 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: to “establish Justice,” “provide for the common defense,” “promote the general Welfare,” and so forth. Bostock exposed just how far unmoored contemporary originalism has become from the “centuries-long agreement that the law cannot be read from the mere words of a legal text, but only from the will, or intention, of the lawgiver.” It arguably heralded “the end of the conservative legal movement, or conservative legal project, as we know it,” as Senator Josh Hawley put it.

Something more is clearly needed: a flavor of originalist jurisprudence that is substantively conservative as such and not strictly positivist or value-neutral. Moreover, this substantively conservative hue of originalism must eschew the libertarian-infused “strict constructionism” that idolizes limitations on governmental power and individual-autonomy maximization. It should prefer instead a looser, “comfortable [jurisprudential] garment” that allows constitutional actors more ample room to pursue the traditional conservative political goals of justice, human flourishing, and the common good within their constitutionally allocated spheres of influence. Put more simply: The concerns of nation, community, and family alike must be prioritized over the one-way push toward ever-greater economic, sexual, and cultural liberationism. And this must be true not merely as a matter of public policy, but as a matter of legal interpretation.

There is nothing disreputable or otherwise illegitimate about a methodology of originalist constitutional interpretation—or, for that matter, statutory construction—that is intrinsically oriented toward substantive conservatism. On the contrary, progressive and libertarian strands of originalism, as they have been theorized, both already achieve this for their own respective political philosophies. Rather, it is conservative originalism—insofar as the term refers to the largely positivist, proceduralist, and judicial restraint-emphasizing mode of jurisprudence most closely associated with those like Scalia and the late Judge Robert Bork—that is the originalist family outlier, due to its lack of any intrinsic substantive orientation. To the extent that conservative originalism purports to elevate judicial actors as somehow truly morally neutral, even on the most rudimentary of civilizational issues, it is not merely a methodological outlier—it is also at odds with human nature itself, thus making it profoundly un-conservative.

Common good originalism turns this outlier status on its head by offering a genuinely, earnestly conservative jurisprudence. The originalism of Founding-era luminaries such as Alexander Hamilton, Chief Justice John Marshall, and Justice James Wilson was centered on the common good that is our true Anglo-American inheritance, going back to the English common law. It rejects both insipid positivism and hapless literalism—encapsulated by Cohen v. California’s “one man’s vulgarity is another’s lyric” sophistry and Gorsuch’s Bostock casuistry, respectively. It seeks to rehabilitate from the fringes of contemporary originalist theory the exegetical legitimacy of ratio legis, or “reason of the law,” that necessarily undergirds our Constitution and all statutes enacted into law pursuant thereto. It emphasizes that it is impossible to truly understand the meaning of any legal text without grappling with the idiosyncratic teleology of that text. And while it recognizes and appreciates the importance of the Constitution’s carefully devised structural safeguards—namely, federalism and the separation of powers—it is also more pliable, contra Jeffersonian “strict constructionism,” and thus more suitable to a complementary populist-inspired conservative politics eager to exercise political power in the service of good political order.

Authentic Constitutional Interpretation Starts with the Preamble

Fortunately, such a method of constitutional interpretation is not merely legitimate—it is the most authentic of all forms of originalist jurisprudence. That’s because it is anchored in the prescribed aims of the Constitution’s Preamble, the Constitution’s “statement to explain ‘whither we are going.’” While the Declaration of Independence—Abraham Lincoln’s “apple of gold” around which the Constitution was but a surrounding “frame of silver”—is undoubtedly important in constitutional interpretation, the geopolitical circumstances in July 1776 were quite different from those during the 1787 Constitutional Convention. The leading draftsmen of both documents, moreover, were also very different. It is rather curious, then, that the Preamble has been so readily ignored in constitutional interpretation. Common good originalism seeks to rectify this mistake.

There are seven enumerated ends of self-government in the Preamble: a more perfect Union, establishing justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, securing the blessings of liberty for us, and securing the blessings of liberty for our posterity. Each and every one of these political ends pertains to the statesman’s view of the common good of the nation, communities, and families. They do not pertain to the protection and promotion of individual rights. And interpreting both constitutional provisions and statutes passed pursuant to the Constitution through the exegetical prism of the Preamble is the sine qua non of common good originalism.

Crucially, common good originalism, closely affiliated with Hamilton’s Founding-era Federalist Party, was validated during the republic’s first few decades as our Anglo-American constitutional inheritance. Indeed, it was legitimated by no less an authority than Chief Justice John Marshall in the famous 1819 case of McCulloch v. Maryland.

In that case, Marshall rejected the Jeffersonian/Madisonian plea for an “absolute necessity” construction of the Constitution’s Necessary and Proper Clause, preferring instead the Hamiltonian conception: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.” This is a prudential, nationalist jurisprudence—one that is less fixated upon limiting political actors at all costs, and one more attuned to the latitude required by political actors as they pursue the common good of nation, communities, and families. It is the jurisprudence of the great Justice Joseph Story, that “proponent of constitutional nationalism” and pious Christian whose influential Commentaries on the Constitution were “overtly conservative in spirit.”

This Is the Jurisprudence the New Consensus Needs

The upshot is that common good originalism is the worthy complement to the New Right/“new consensus”—the jurisprudence best equipped to judicially and politically secure the substantive goods the likes of which the Public Discourse editors elevate, such as marriage and life, religion, education, and justice.

Consider a few examples. Common good originalism stands athwart individual autonomy-maximizing, natural law-undermining marriage cases such as Obergefell v. Hodges. It would lend legitimate interpretive support to “The Lincoln Proposal” in the all-important right-to-life context. It would mightily oppose Jeffersonian notions of “separation of church and state” and the concomitant Supreme Court case of Everson v. Board of Education, bestowing a constitutional imprimatur upon political actors’ various attempts to codify ancient and biblical principles of natural justice. In the economic sphere, it would more directly aid political actors who seek to enact means—such as the “American System” elements of a national bank and internal improvements—best suited to creating jobs and locking in political support for the emergent multiracial working-class coalition upon which American conservatism must, and will, depend in the twenty-first century.

Lawyers often tend to bore, and the study of law itself can veer toward the soporific. But a proper conception of law—and the American rule of law predicated on our constitutional order, in particular—will be a necessary foundation for any meaningful post-Trump, “new consensus” conservative revival. Common good originalism is the best chance for a constitutional complement to a politics of a conservative restoration: a profoundly and distinctly conservative politics that is faithful to our traditions and oriented toward the timeless political ends of justice, human flourishing, and the common good.