Originalism does not need a makeover

Hammer’s chief concrete proposal for constitutional reform is a link to the “Lincoln Proposal” to define the unborn as “persons” within the meaning of the 14th Amendment. This is a well-meaning proposal, but it still assumes that this is an action that must be taken by a political body, not the courts, and it is addressed to the wrong political body. The proposal to do this by executive order flatly ignores section five of the 14th Amendment, which explicitly places with Congress (not the president) the power to enforce the amendment by lawmaking.

Encouraging rewriting of the terms of individual constitutional rights by executive fiat would be a terribly dangerous precedent, one whose hazards should be obvious now that the Democrats hold the executive branch. It also assumes an independent presidential power to construe the Constitution that would unsettle the longstanding doctrines of judicial supremacy, which even Hammer — in a sympathetic 2020 law review article on the topic of post-Obergefell resistance to judicial decisions — found to be supported by “compelling pragmatic and functionalist reasons.”

Experience, not theory, is the great teacher of conservatism. What would common-good originalism look like in practice? Hammer does not identify a judge anywhere who has put it into practice in modern America. That makes it an unpromising cause to promote, given how many common-good judges he would need to convert or appoint in order to advance the project. It also makes it difficult to evaluate its track record in delivering outcomes, if outcomes are the real goal here.