Preambular Originalism

Anthony Sanders · June 21, 2021

Does the Constitution permit a large, sprawling federal government that can regulate all matters of our private lives? Does it also allow states to regulate their citizens with very little interference, protecting individual rights in only a handful of exceptions? If you answered “yes” to both of these questions, you’re part of the post-New Deal coalition that sees structural limits on the federal government’s power—such as enumerated powers or the nondelegation doctrine—as passé and the Constitution’s (especially the Fourteenth Amendment’s) restrictions on state power as narrow and allowing for all kinds of state and local regulation of life, liberty, and property.

You might also be a subgroup within that coalition called a “Common Good Originalist.” Newsweek editor Josh Hammer popularized that term last year and has now detailed what it means. And in breaking with fellow “originalists” of other stripes, he seems to argue that, like modern post-New Deal progressives, he believes the Constitution doesn’t limit government very much at all. Thus, the bottom line to take away from his new article, Common Good Originalism, in the Harvard Journal of Law and Public Policy, is that he joins hands with those progressives in thinking the government can do just about all of what those power want it to do. And this includes, of course, what the government can do when progressives control it.

Hammer’s article is a longer version of what he first proposed in May 2020, shortly after an article in The Atlantic by Harvard Law School’s Adrian Vermeule. Vermeule advocated what he called “common-good constitutionalism,” and took political conservatives to task for sticking with originalism as a method of constitutional interpretation. He didn’t do this because his theory of constitutional interpretation was un-originalist (although it is); it was simply a political argument. Want “conservative” (whatever that means these days) policies and legal outcomes? Then interpret the Constitution in a way that furthers them, whatever it actually says. Perhaps originalism had had some utility in promoting conservative politics and policy in its early days, but, argued Vermeule, it had outlived its usefulness.

At the time I criticized Vermeule’s approach, not based on the politics or constitutional theory, but because his method seemed remarkable in one sense: It had nothing to say about what is un-constitutional. He asserted that various tools of government should be used to promote the “common good” (the meaning of which is a bit hard to figure out, but seems to entail legislating so that people behave the way he likes, and making what he doesn’t like illegal). And therefore he tried to waive away various impediments to those tools, such as the provisions of the First Amendment or the enumerated powers of Congress. Surely something would violate the Constitution under Vermeule’s reading of it (a mandate that all children pray to Zeus three times a day, perhaps?), but the fact that he didn’t even bother to mention what that might be was very telling of his priorities.

Not long afterward, Hammer’s follow-up was very accepting of Vermeule’s proposal, and he agreed that as far as substantive political results go, originalism has given “conservatives” (again, hard to tell what that means) very little. However, he couldn’t go “full Vermeule” because the Harvard professor’s call to just interpret the Constitution however one wants (like a right-wing version of the late philosopher Ronald Dworkin) just went too far beyond the document’s actual words. Hammer’s heart wanted to run across the abyss into Vermeule’s arms, but his head said that seemed like a bridge too far. However, he stated that he was working on the issue, and would figure out an answer pleasing to both body parts that he would call “common good originalism.”

The new article is his solution. So, being at least somewhat true to its text (which at a minimum it would seem originalism demands), how does he find the Constitution to allow a strong federal government, fail to restrain the states, and give few protections to individual rights along the way, despite what most conservative and libertarian originalists have argued the last few decades? Through the long-neglected preamble.

Usually left out of constitutional interpretation, Hammer argues that the Constitution’s opening explanatory words provide a background to the Constitution’s purpose—what he calls its “ratio legis”—that we lose sight of if we just concentrate on the individual text of various clauses. Many have argued that the Declaration of Independence provides a background to interpretating the Constitution, and Hammer argues his approach is not dissimilar to that. However, he asserts that it’s obvious if we are going to do that for the Declaration, the preamble is even more central considering it’s part of the same document, written and ratified at the same time by the same people.

And what the preamble tells us, he continues, is that the federal government can be very big and energetic. To give this argument some color, he states that the Constitution was drafted in the spirit of Hamilton, who helped put the preamble together, and not Jefferson, who was “gallivanting” in France. There are several reasons the preamble gives for adopting the Constitution, and Hammer makes much of the fact that liberty is only explicitly part of one of them, and even then it doesn’t mention liberty itself but the “Blessings of Liberty to ourselves and our Posterity.” The rest—forming a more perfect Union, establishing justice, ensuring domestic tranquility, providing for a common defense, and promoting the general welfare—are, he argues, goals for the “common good,” which Hammer equates with conservative values such as family, faith, and traditional morality, not just squarely with liberty.

This understanding of the preamble then shapes how he advocates we should interpret the rest of the document. Enumerated powers? They’re very large, as the federal government needs a lot of power to fulfill the preamble’s goals. Freedom of speech? True originalists wouldn’t allow it to be perverted to protect the various morally objectionable forms of speech the First Amendment is interpreted to protect today. And what about the Fourteenth Amendment, adopted 80 years after the preamble? (Although, to be fair, the First Amendment was also adopted after the preamble, severely limiting, I would argue, its interpretive utility of any amendment.) Well, in passing he says common good originalists are “skeptical” of using it to apply the Bill of Rights against the states, citing to Professor Raoul Berger’s now discredited work. (Berger asserted many facts—such as that the application of the Bill of Rights was not discussed in newspapers when the Amendment was proposed—that have now been shown to be simply false.) And whether it’s federal or state law enforcement, Hammer takes a very dim view of provisions like the Fourth Amendment and its search and seize protections, as expansive readings of them get in the way of the “common good.” Rejecting concerns for privacy under the Amendment, he declares we should “opt[] to substantively prioritize societal order and follow the sagacity of those who exalt the moral imperative of the rule of law.”

Hammer does seem to like a handful of provisions in the Constitution that don’t give the government power, including the Second Amendment. But he doesn’t give many examples of how they actually get in the way of the state’s machinations.

Thus, just as I found to be true for Professor Vermeule’s original essay, Hammer’s piece outlines all kinds of things the Constitution allows both federal and state governments to do, and very little that they can’t. It never seems to dawn on him that that is precisely what progressives have advocated since Woodrow Wilson’s attack on the Constitution’s traditional limits in the early twentieth century. Although he gives a new justification for unleashing those powers—to give a lot of interpretive force to its preamble—the powers have been operational ever since the New Deal court threw off the old limits in the 1930s. Indeed, about the only way Hammer seems to break with progressives is to object to the handful of limits they think do restrain the federal and state governments, such as expansive free speech protections and restraints on law enforcement. And even there many modern progressives actually agree more with Hammer than with other conservatives, such as in their scorn for allowing citizens to pool their money to spend on political speech or using the First Amendment to protect what they say in order to earn a living.

And nowhere in his essay is there a recognition that the powers he advocates for could be used by those in power to undermine his conception of “the common good.” The words of the preamble simply need to be read by, for example, a militant secularist or a Swedish-style socialist and then twisted to their own views of “the common good.” What protection is the First Amendment’s mention of the “free exercise” of religion once it doesn’t even apply to the states anymore and those in control think “a more perfect union” necessitates tamping down monotheistic superstition? What protection is the separation of powers when a future progressive administration and Congress tries to delegate core legislative powers to a team of experts composed of left-wing sociology professors because it would “promote the general welfare”? Hammer might object that properly understood the preamble only implies the power to do what he likes, not these terrible ideas. But as the shift between imperial Democratic and imperial Republican presidencies for the last several decades demonstrates, power is power whichever ideology the bureaucrat bends to.

Conversely, he might instead simply argue that most limits on the government’s power are already gone, so those who want to advance his “common good” policies (whatever they are) should get in the game and just use them. That may be a familiar argument as old as Thrasymachus’ statement in Plato’s Republic that “justice is what is good for the stronger,” but it’s not one the framers of the Constitution would agree with. The Constitution is a set of rules, not a set of rules preceded by a set of excuses for getting around those rules. Those rules are for everyone, not just for suckers who don’t care about the “common good.”

Finally, a great irony in Hammer’s argument is that perhaps the most famous use of the Constitution’s preamble in the Supreme Court (at least in the modern era) is Justice William Brennan’s opinion in Goldberg v. Kelly. That case declared that the Due Process Clause requires a state to provide a hearing before it cuts off a person’s welfare benefits. In so ruling it literally redefined what “property” means (to include government benefits), and partly justified that move by stating “[p]ublic assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.’” Since 1970 the Court hasn’t tried such bold moves via the opening lines of the Constitution, but Justice Brennan certainly provided a blueprint in case it wants to again.

What Hammer proposes has happened before, and if we take his lead all this will happen again – just probably not in the way he’d like.

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice.