Common Good Originalism: Our Tradition And Our Path Forward

For far too long, originalist scholarship and taxonomy has been divided between libertarian originalism, progressive originalism, and “conservative” originalism. But so-called “conservative originalism,” as it has usually been historically formulated, is usually avowedly positivist and rooted in Thayerian deference or other proceduralist norms of judicial restraint.

This paper argues that this is wrong. Just as libertarian originalism and progressive originalism entail an inherent element of substance, so too can a genuinely, substantively conservative strand of originalist jurisprudence be theorized. In fact, this paper argues, such a strand of originalism is our true Anglo-American constitutional inheritance: common good originalism.

By Josh Hammer

Harvard Journal of Law and Public Policy, Vol. 44, No. 3, 2021