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There is nothing new about struggles over the soul of jurisprudence on the Right. Harry Jaffa advanced moralistic constitutionalism against positivism in running debates with legal titans such as Antonin Scalia and Robert Bork. Remarkably similar themes undergirded Abraham Lincoln’s 1858 grapples with Stephen Douglas. Today’s recapitulation of these conflicts, however, break important new political ground. In 2021, the future of the Right as a coherent governing movement turns, in no small part, on recognizing the jurisprudential failures of the conservative establishment. Only a fresh articulation of a moral originalism can lead the Right back from this institutionalized defeat.
Toward that end, I recently debated Ed Whelan on “common good originalism”—a jurisprudential framework first outlined here at The American Mind—as part of The Heritage Foundation’s “Judicial Clerkship Training Academy.” The in-person debate followed Whelan’s response to my most recent writing on common good originalism, as well as a rebuttal from National Review’s Dan McLaughlin and an exchange with the Cato Institute’s Ilya Shapiro on the topic.
Around the same time, The American Mind published “A Better Originalism,” the lengthy jurisprudential manifesto that my co-authors styled “an appeal to conservatives for an originalism of moral substance.” We concluded our fusillade across the bow with a friendly call “to break away from a jurisprudence that has underserved and underwhelmed—both practically and morally—and diminished our understanding of the proper ends of the law.” Those substantive ends are the ineffable truths embodied in the Declaration of Independence and the American regime’s telos, most clearly expressed in the Constitution’s common good-oriented Preamble—the Founders’ most overt explanation of whither we are going. “A Better Originalism,” much like common good originalism, elicited some skeptical (to put it mildly) responses from the self-anointed positivist/libertarian gatekeepers of the embedded Originalism, Inc. (and Fusionism, Inc.) establishment.
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