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The Bad History of Common Good Originalism

Common-good originalism’s historical understanding of the Constitution’s adoption is perhaps its weakest link. The Constitution emerged from a negotiated consensus of a complex popular sovereign—a fact that ought to reinforce a judge’s commitment to the written text.

Common-good originalism, the brainchild of Newsweek’s Josh Hammer, purports to offer a more substantive conservative alternative to the “empty proceduralism” of the traditional originalist method of constitutional interpretation. Just as libertarians and progressives promote their substantive values in interpretation, the argument goes, so conservatives should embrace an interpretive method that allows judges to be statesmen working for the good and the true, rather than mere mouthpieces of whatever the written law happens to say. They can do this, Hammer believes, without abandoning originalism altogether in the way that Adrian Vermeule’s common-good constitutionalism proposed. To walk this delicate line, Hammer relies on a broad understanding of the original intent of the founders that leaves room for judges to use their own moral judgment in pursuit of the Constitution’s ultimate goals.

Hammer’s most recent effort is his most detailed presentation to date, and it includes his case for reading the Constitution in such a way. In his view, the history and Preamble of the Constitution amount to a kind of constitutional biography, showing us its ultimate purpose—its ratio legis, drawing on Blackstone—which ought to inform a judge’s understanding of any given part of the document.

But as Chief Justice William Rehnquist observed when debunking the oft-used “wall of separation” metaphor, “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history.” While common-good originalism has been ably critiqued on several fronts, its historical understanding of the Constitution’s adoption is perhaps its weakest link. The Constitution’s actual biography reveals a document that emerged from a negotiated consensus of a complex popular sovereign—a fact that makes Hammer’s Blackstonian interpretive arguments inapplicable, and that ought to reinforce a judge’s commitment to the written text, not a teleocratic spirit.

 

The Idea of a Ratio Legis

According to common-good originalism, judges must interpret the Constitution through the “prism” of its “substantive political aims”—the supposed purpose of the regime articulated in the Preamble and discernible in its pre-constitutional history. If we look to the Preamble, Hammer says, we see talk of a national pursuit of the common good; if we look to the cause of the convention, we see the need for a more powerful central government. Therefore, a judge interpreting the Constitution through this telos will “look to the overall health of the whole body politic and the whole nation-state.”

This vision, he stresses, is the central element of America’s British inheritance, coming from Blackstone’s discussion of the ratio legis. According to Blackstone, “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

The appeal to a ratio legis is the key that puts the “originalism” in common-good originalism and distinguishes it from Vermeule. Despite its relentless complaints about the positivist foundations of traditional originalism, common-good originalism still ultimately finds its legitimacy in a search for the “will of the legislator,” to use Blackstone’s description.

Blackstone goes on to say that the idea of a ratio legis is the origin of equity power, by which courts could grant certain remedies in circumstances to which the legislature had not directly spoken:

. . . for since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have expected.

There are essential differences between what Blackstone describes and what Hammer describes.

First, Blackstone argues that this authority is only applicable “when the words are dubious.” Hammer presents it as an essential element to understanding the entire Constitution: “it is impossible to properly understand what a specific legal provision meant . . . without understanding . . . the broader societal role and function for which the law was devised.” Blackstone, though, is quite explicit that this type of power cannot be used pervasively: “the liberty of considering all cases in an equitable light must not be indulged too far,” he cautions, “lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge.”

Second, Blackstone writes of a judge applying a law passed by a legislature. By importing the concept to constitutional law, Hammer applies it to decisions about the authority of the legislature derived from a written constitution. Third, as his example makes clear, Blackstone had in mind an immediate, specific cause of a particular law. Hammer has in mind a broad, polity-defining purpose—the “telos of the American Regime” to which any statute or judicial decree is “necessarily subservient.” Finally, read in context, it is reasonable to presume that Blackstone believed the principle would be useful and appropriate only if the ratio legis was clear and unambiguous, for he brings it up only as a tool for resolving ambiguity. Hammer believes this to be the case with the Constitution, arguing that it can be understood as the product of a small, likeminded cadre of founders with a clearly discernible and coherent purpose. Constitutional history, however, belies this understanding.

Let us then turn to the American Constitution and its context.

“No Man’s Ideas Were More Remote”

How might one arrive at the claim that discretionary, common-good-oriented statesmanship is the defining characteristic of the American Constitution? This is the second vital key to the common-good originalism project, because it is the link by which a certain ideal of statesmanship can be applied to judges. It’s not just that the Constitution allows room for a degree of national-minded statesmanship within its limiting, divided structure; rather, Hammer argues that the Constitution is defined by such an ideal, which therefore rightly infuses a judge’s interpretation of the original Constitution, its amendments, and even statutes.

To prove this, Hammer looks to the constitutional convention (or, more precisely, to a certain group of delegates at the convention) for the intent of the lawgiver. He hangs his thesis on the idea that “nationalist, common good-oriented, Anglo-inspired conservatives” were responsible for calling the convention, “came to dominate” its proceedings, and wrote their goals into the Preamble, thereby infusing their purposes into the document. Surprisingly, he places the most emphasis on one of the least influential delegates in Philadelphia: Alexander Hamilton. No one’s name comes up more often in the various essays promoting common-good originalism than Hamilton’s, whose “conception of an Anglo-inspired, prudential, non-rationalist, common good-oriented originalist jurisprudence” is the model for the theory. In this most recent paper, Hammer makes the rather dubious declaration that Hamilton exerted “intellectual dominance” over the founding era.

Did the convention and Preamble actually infuse a Hamiltonian spirit into the Constitution as Hammer claims? As I’ve noted elsewhere, there is little evidence that either the framers or the ratifiers held the Preamble to infuse any power-expanding telos into the Constitution. When Federalists pointed to the Preamble, it was generally not to the various purposes listed, but to the first line—“We the People”—drawing attention to the fact that this fundamental law was the act of a popular sovereign. In fact, Hammer’s depiction of the Preamble is more in line with the fears of Anti-Federalists, such as the fifth letter of “Brutus”—fears that Federalists repeatedly insisted were unfounded.

But even assuming the Preamble to be the fundamental interpretive key does not get us very far. The purposes it identifies are not all ends of the new government, but of the Constitution broadly (“. . . do ordain and establish this constitution,” not “this government”). They are all broad, vague goods that any political system—centralized or decentralized—would aim for, and that no faction at the convention or the population at large would have objected to.

This gets to one of the core flaws of Hammer’s approach. By focusing too much on today’s rhetorical dichotomy between “the common good” and “individual liberty”—a distinction he acknowledges was not as stark to the founding generation—he elides the fundamental questions of the convention and ratification. How are these goods best promoted? What structure of delegated power, enumerated rights, and divided government would best protect liberty and promote the general welfare?

The fact that the convention was called in response to an excessively weak central government and that it moved in the direction of greater national power cannot possibly justify a presumption in favor of power, for it was precisely that open question—how much national power and in what form—that defined the constitutional debate. It was widespread disagreement on this question that made a compromise constitution necessary. The Preamble does not offer any substantive answers on these questions. It merely introduces the content of the compromise.

Moving on to the convention itself, it should first be recognized that it drafted the Constitution but did not make the law. It therefore cannot stand in the place of Blackstone’s parliamentary “legislator.” The people of the states, through conventions, made the Constitution the law, which complicates the ratio legis analysis considerably. But putting this aside for the moment, did the nationalists “dominate” the debate, as is claimed? If so, one would assume they achieved most of their goals and that they were happy with the outcome. But the unfulfilled wish list of the convention’s various hyper-nationalists is as long as your arm: proportional representation in both houses of Congress; a directly elected president; an unlimited veto in the hands of that president; Hamilton’s president-for-life; the authority of Congress “to legislate in all cases to which the separate States are incompetent: or in which the harmony of the United States may be interrupted by the exercise of individual legislation”; a national negative on state laws.

These last two in particular would seem to encapsulate perfectly the idea of common-good conservatism and its associated jurisprudence: far-sighted, national-minded statesmen authorized to use their wisdom and prudence to legislate for the public good in the way that seems best to them and to strike down problematic, parochial legislation. Both were quickly and easily rejected by the convention.

 

As a result of such defeats, it is well-documented that the nationalists—especially Hamilton, whose influence at the convention was very slight—were disappointed with the final product. Madison records Hamilton as declaring on the final day of the convention that “No man’s ideas were more remote from the plan [adopted] than his own were known to be.”

Any honest account of the convention would show that moderates like Roger Sherman, John Dickinson, and Oliver Ellsworth, and even constitutional skeptics like Elbridge Gerry and Luther Martin, had as much or more of a say in the final outcome than the Hamiltons, Wilsons, and Morrises. And the decision of figures like George Mason and Edmund Randolph not to sign the final document shows that the desire for a relatively strong, popularly based national government did not necessarily demonstrate a comfort with the kind of sweeping discretionary power common-good originalism champions.

Far from being “relatively unified,” the convention’s delegates overcame the fact that, as Franklin observed when urging prayer over lack of progress, they had “different sentiments on almost every question.” The convention’s letter to Congress (drafted by arch-nationalist Gouverneur Morris) captures this reality: “It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved,” especially given “a difference among the several States as to their situation, extent, habits, and particular interests.” As a result, the convention produced a document born out of “a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” The compromise was a feature, not a bug.

If there is little evidence to be found from the convention of a constitutional spirit in favor of discretionary pursuit of the common good, there is even less when examining the ratification. The nationalists’ rapid rhetorical shift when moving into the ratification phase further makes it clear that a nationalist spirit was neither embodied in the Constitution nor likely to be attractive to the citizenry at large. Even when defending his relatively broad reading of the necessary and proper clause—the Constitution’s most flexible delegation of power—Hamilton stressed that “if there is anything exceptionable, it must be sought for in the specific powers,” not in an undefined appeal to the common good. Likewise, in his State House Speech—one of the most widely reprinted and influential Federalist writings—Wilson unambiguously stated that “congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union.” Is this “rote proceduralist positivism”?

The thirteen separate state ratifying conventions, each of which had a unique intellectual and political context, reveal a great variety of reasons for adopting the Constitution. Some ratified quickly and eagerly with overwhelming votes of Federalists. Others depended heavily on moderate Anti-Federalists, like Melancton Smith of New York, who were either reassured of the national government’s limits or were promised amendments. Some states ratified without comment, others included proposed amendments, most of which stated more emphatically the limits of national power or suggested firmer safeguards against the use of discretionary power. And, of course, some states were motivated to ratify mostly because all the others had. There is no unifying teleocratic spirit to be found here.

 

Tacit Implications

Are the “tacit implications” of Blackstone’s ratio legis applicable to American constitutional interpretation? The precise nature of American sovereignty has, of course, been hotly debated for much of the republic’s history. But no conception of the American sovereign can avoid the historical realities of ratification. Unlike Blackstone’s parliamentary sovereign, from which one might discern a distinct purpose (though that is extremely difficult, too), the American sovereign established its fundamental law through a complex and popular mechanism in thirteen separate conventions, which reflected the differences that had run through the entire process. This essential difference forecloses the possibility of any clear and unambiguous purpose shared by those adopting a frame of government.

In fact, the history and context of the Constitution affirmatively point in the opposite direction. When thirteen bodies with varying motivations and varying degrees of skepticism approve of a heavily compromised document, we have few guides aside from the one thing we know they agreed upon: the text they all ratified. And that’s how the nationalists convinced the skeptical moderates and Anti-Federalists to get on board—by reassuring them over and over that there were no “tacit implications” and hidden meanings; that “everything not granted is reserved”; that the Constitution’s meaning was contained in its words.

And that’s what Blackstone recommended, anyway, offering extratextual interpretive guides only “if words happen to be dubious.” Of course, words can be dubious, and the judge may have to look to context, history, or common law when it is necessary to understand what certain words and phrases meant—the author of District of Columbia v. Heller did not lack in concern for intellectual context. But if we find meaning apart from the words, drawing on the ideals of particular individuals, we go beyond the consensus that made the Constitution the law in the first place. This does not represent the “will of the legislator” and can therefore be no form of originalism.

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