Explaining "common-good originalism" does not help its case

Hammer’s second set of targets is areas of the law in which Hammer thinks courts should be more deferential to the political branches of government. For example, he cites Fourth Amendment restrictions on the police and First Amendment rules protecting speech. In both areas, he contends, courts have gone too far by second-guessing cops and striking down common-good-promoting rules against obscenity, indecency, and defamation. To some extent, these are arguments that could be raised entirely within an unhyphenated-originalist framework, insofar as Hammer contends that the courts have departed from what these amendments were originally understood to mean. It is noteworthy, however, that in these areas, Hammer is making a Roberts-like argument for judicial modesty and deference rather than an affirmative case for a robust doctrine that legitimizes judicial action.

The parallel to Roberts becomes even clearer when Hammer turns to the topic of how courts should read statutes. Hammer expends a lot of rhetorical energy blasting textualism as “an acontextual, amoral, ahistorical, non-purposive, non-ratio legis–undergirded reading of a legal provision,” which is primarily a strawman version of textualism built out of Gorsuch’s departures from proper textualism in Bostock. But in explaining how he thinks statutes should be read, Hammer does not merely seek to reorient textualism around a richer understanding of context or original meaning, as he claims to do for originalism. Rather, he falls decisively on the side of purposivism or intentionalism rather than textualism, citing the ratio legis (the reason for a law) as bearing overriding importance. Then, he takes flight even further…