How To Be A Conservative Legal Scholar

Reading Josh Hammer’s essay “COMMON GOOD ORIGINALISM: OUR TRADITION AND OUR PATH FORWARD,” published in a recent edition of Harvard Journal of Law & Public Policy, convinced me of a couple of things. The biggest thing I learned is that it’s not actually hard to be published in this journal, you just have to know the right people. If you have a degree or two on your wall, stuff that would get laughed off the internet if a small-blogger published it suddenly become works of scholarship in the minds of the academic.

I could go into the circle-jerk nature of these journals — and the fact that so few actually have is honestly surprising — but Hammer’s article is even more one than normal. Throughout this piece, Hammer will regularly cite himself as a source, which takes a special kind of ego. Mind you, he does not say “as I have written previously — “ and then link to an article where you can find him saying that, such a thing would be perfectly fine. Instead, Hammer will simply state things as fact and, when you look at the source, it’s something he or one of his buddies wrote for a conservative outlet.

Take this claim:

Justice Harry Blackmun, author of Roe v. Wade, the twentieth century’s moral and jurisprudential successor to the Dred Scott case, was a President Richard Nixon nominee.

The claim that Roe v. Wade is “the twentieth century’s moral and jurisprudential successor to the Dred Scott case,” earns the forth footnote in Hammer’s article. His source for this claim is a Daily Wire article published on 1/24/2020 with the headline “HAMMER: Abortion Is A Grave Injustice. We Must Treat Roe Just Like Dred Scott.” I should also note that said article contains this quote:

The fight for the unborn is the human rights struggle of our time. The comparisons to antebellum chattel slavery are remarkable: Both involve treating fellow human beings as property to be harmed at will, both were upheld by the Supreme Court on constitutional grounds via the Fifth/Fourteenth Amendment doctrinal ruse known as “substantive due process,” both are deemed beyond reproach by judicial supremacists, and the opposition to each is led by the Republican Party.

Technically speaking, aren’t all judicial cases “beyond reproach by judicial supremacists”? (Also, no case is actually “beyond reproach.” Congress has the power to ban courts from ruling on a particular issue — something Ron Paul tried to expand to abortion and which was shot down mostly by his fellow Republicans — and failing that Supreme Court cases can be completely repealed with a constitutional amendment. It should be noted that amendments to overturn Roe v. Wade have been introduced hundreds of times — go look at the list of failed Constitutional Amendments in Washington D.C. if you don’t believe me — and every single one have failed.)

Yeah, this “saying things that sound smart but don’t actually mean anything” is something Hammer does all the time. Going back to his journal entry, here is my favorite line from the entire thing:

The Preamble is infrequently invoked in legal argumentation, and rarely appears in judicial opinions. Large swaths of the legal academy — and the legal profession, more broadly — are content to act as if it simply does not exist. This is wrong.

Credit where it’s due, he does have a point.

He also cites an article from the blog section of First Things — a Catholic magazine — titled “A republic . . . if you can keep it,” published 1/22/2016. The article in question was also written by Robert P. George, a right-wing political activist most known for his opposition to abortion and same-sex marriage.

This is not to say that just before George is a conservative that means it’s impossible for him to engage in legal scholarship, but the post Hammer cities is not legal scholarship — it’s a six paragraph blog post (with the sixth paragraph just reading “Let’s keep it.”) barley better than what you’d fine if you went around BlogSpot for a couple of hours. In the same way, I’m sure Josh Hammer is capable of good scholarship, but I highly doubt we’ll fine a document that changes the way we view the legal system in the archives of The Daily Wire. Just as a liberal lawyer could not get away with citing Crooks And Liars in a legal essay, Hammer should not be allowed to just cite what he considers the best of the Blogosphere.

Also included in places Hammer gets his legal scholarship include, but not limited too; National Review, The American Mind, The Washington Post, American Greatness, First Things, The American Conservative, USA Today, and much more. You can also read him cite such people as Ryan T. Anderson, George Will, Yoram Hazony, Chad Pecknold, and Adrian Vermeule. (For those curious, Anderson has a degree in Music and philosophy, Will has a degree in religion, and Hazony is not an American citizen. When Adrian Vermeule is your most qualified source for American law, you know you are doing something very wrong.)

I think this is rather important, if only because it shows just how small the “Conservative Legal Movement,” actually is. I have been following Hammer and his quest for Common Good Originalism (sorry, COMMON GOOD ORIGINALISM)/Common Good Constitutionalism/Common Good Conservative for about two years now. In that time, Hammer and his buddies have gone from people known by many to people known by few. There’s a reason why Hammer could only source the webpages of his friends, because those are the only people who still go along with this utter nonsense.

You might remember May 2019, when Sohrab Ahmari’s First Things article “Against David French-ism” was first published. For a time, Ahmari was the talk of the town for the online-right —and he, along with Hazony and Hammer, were going to lead conservatives into a “common good” future.

Where is Sohrab Ahmari today? His recent book, The Unbroken Thread: Discovering the Wisdom of Tradition in an Age of Chaos, did become a best-seller in Amazon’s category of “Self-Help For Catholics,” but Ahmari himself seems to have fallen off the map. Same thing with Hazony, who went from a popular book, PragerU, and an appearance on Ben Shapiro’s podcast to being a name nobody has heard of.

Remember that New Republic article from February of this year, “Originalism Is Dead. Long Live Catholic Natural Law”? The article documents the support of many in the “Conservative Legal Movement” for theocratic and authoritarian ways of governing. One of the people the article mentioned was the aforementioned Adrian Vermeule, easily the loudest voice among those trying to make this shift happen. While attacking the article in National Review, Dan McLaughlin pointed this out:

What is lost here is the fact that Vermeule is, despite the interest he inspires in some circles, an entirely marginal figure among the sorts of people who staff the federal judiciary and are active in the Federalist Society — in particular, Justice Barrett, whom even Schwartz concedes is a jurisprudential follower of Antonin Scalia, the monumental leader of the originalist camp.

The rest of McLaughlin’s article is nothing more than talking about how progressives hate Catholics (and the feeling isn’t mutual?) without actually debunking the points made. The best argument McLaughlin has against this article — one he says The New Republic should be ashamed of — is that the figures mentioned aren’t that big anyway so who cares.

Oh, and the article points out that Vermeule himself is not very popular, instead pointing out that it’s talking about a wider movement that he just so happens to be a loud voice in:

Many observers, on both the right and the left, have dismissed Vermeule’s “common-good” notions of constitutionalism as performative melodrama or merely as the antics of a troll out to get the liberal goat. But his intellectual self-confidence clearly speaks to the tattered, moth-eaten state of the consensus that has historically sheltered process-driven, Enlightenment liberalism. What First Things editor R.R. Reno has approvingly observed about Ahmari applies equally to Vermeule: “He sees auspicious signs in today’s polarized political landscape, opportunities for fresh initiatives rather than peril and persecution.”

Personally, I think it has to do with COVID-19. An airborne pandemic sweeping the nation that might require government intervention would have been a perfect time for the “common good” right to separate itself from the libertarian-right. At first, some of them went along with it. On 3/12/2020, Josh Hammer tweeted:

A pandemic requiring national solidarity and a systemic commitment to “social distancing” is a bit of a tough blow for the radical individualists who’d excoriate a “common good”-oriented policy posture.

When the lockdowns began, Matt Walsh published an article for The Daily Wire arguing we should remain under this life even after the pandemic ends. Here’s Matt on 3/17/2020:

For most of us, the “self-quarantine” being observed across the country (including in my house) involves spending more time with our families, cooking meals in our kitchens rather than eating fast food, making fewer unnecessary purchases, and teaching our kids at home instead of shipping them off to government buildings for the majority of the day. These practices, it is feared, will wreak untold destruction.

But these practices are also objectively good and healthy, and while they have the potential to ravage our economy, they also have the potential to give people happier and more meaningful lives. Perhaps it is worth considering whether it is good that good things like frugality and self-sufficiency should be so bad for our country. And if it is not good that good things are bad, then maybe we should next consider whether there is a better way to set up a society, a way that will not cause us to break out in hives at the thought of millions of families eating dinner in their dining rooms.

However, after a month or two in lockdown, things changed rather quick. Now, Matt doesn’t even believe masks should be legal — God only knows what he thinks of those who want to live in lockdown. On 5/16/2021, Walsh tweeted:

It’s time to ban masking. Fines and penalties for those who mask. Masking has caused an epidemic of hypochondria and other mental illnesses. We must act now to flatten the curve before it’s too late.

Of course, on 5/4/2021, Walsh tweeted:

One of the worst things to happen in modern times is the medicalization of the human condition. Now people who experience anxiety think they’re sick. They aren’t. Anxiety is a fundamental fact of human existence. It’s not a disease.

One wonders why hypochondria is not “a fundamental fact of human existence.”

Yeah, Walsh can’t seem to hold a consistent position on anything for longer than a couple of minutes. Of course, this means he’s only a law degree away from joining the Conservative Legal Movement, but that’s another story.

Josh Hammer and his movement are currently blowing in the wind, attempting to find something to leave their mark on. I have no doubt that, at this point two years ago, Hammer thought he and his buddies were going to leave a massive mark on American history. These days, however, Hammer seems to be nothing more than an odd curiosity as opposed to someone who’s actually worth taking seriously.