How Would Religious Freedom Fare With Common-Good Constitutionalists?

COMMENTARY: This way to interpret the law looks to be a nice antidote for the ills facing our country today. But scratch beneath the surface and you find all sorts of dangers to cherished liberties.

“We the People ...”
“We the People ...” (photo: Janece Flippo /

There is a troublesome idea that has the interest of a handful of influential U.S. conservatives. It’s called “common-good constitutionalism.” This way to interpret the law looks to be a nice antidote for the ills facing our country today. 

But scratch beneath the surface and you find all sorts of dangers to cherished liberties, including religious freedom.

The subject of rival legal interpretive methods isn’t something that you’d expect to captivate most Americans. The arrival of Amy Coney Barrett on the national scene certainly changed things. 

When Judiciary Committee Chairman Sen. Lindsey Graham, R-S.C., asked the brilliant mother of seven during her confirmation hearings to define “in English” the meaning of the legal concept of originalism, Barrett had no trouble responding: 

“In English that means that I interpret the Constitution as a law and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.”

Barrett is a trailblazer, but she is not alone in considering herself an originalist or a strict textualist. The late Justice Antonin Scalia, Barrett’s mentor, and Judge Robert Bork were well-known adherents of originalism. Current Justices Clarence Thomas, Samuel Alito, Neil Gorsuch (I’ll get back to him in a bit) and Brett Kavanaugh are also part of its all-star lineup. 

Also embracing originalism as the proper approach to interpreting the Constitution are a growing number of members of the federal judiciary and a cadre of lawyers in every stratum of the legal profession. They have no stomach for the activist judges of yesteryear who used what they called a “living Constitution” to invent rights based on the political fashions of the moment. Originalists also offer a bracing alternative to today’s progressives, who demand a judiciary ready to advance a radical social agenda.

The roots of originalism run deep. Justice Joseph Story, in his Commentaries on the Constitution of the United States, published in 1833, wrote that “the first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties.” Scholars note that the pedigree of what is called originalism goes even as far back as the founding generation.

It’s also important to be clear that originalism is not a commitment to process simply for its own sake. Originalists believe that the Constitution establishes our system of government and how ethical principles can be advanced therein. “Instead of expecting courts to be instruments of policy preferences,” explain today’s originalists, “those preferences should be pursued through the elected branches of government, with the courts applying the Constitution as a necessary backstop.” This is something that progressives don’t have the patience to accept. Conservatives should not give in to similar temptations.

Last year, Harvard Law professor Adrian Vermeule wrote an essay in The Atlantic presenting common-good constitutionalism as an alternative approach to originalism. The theory “is not tethered to particular written instruments of civil law or the will of the legislators who created them,” Vermeule explained. Rather, its advocates will “take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution.”

So, what’s so bad about untethering judges from written instruments of civil law? Why not allow judges the liberty to “read into” the Constitution some moral truths?

Let’s take a look at how religious freedom could fare. Because common-good constitutionalist judges are not bound by any bothersome written instruments of civil law, they can just skip over the specific guarantees of the First Amendment in reviewing cases. A core component of its “free exercise of religion” — the right to worship — is thus subject to an easy override if what is considered the common good is served.

Think I’m exaggerating? When the governors of New York and California thought that severely restricting communal worship during the pandemic was necessary for public health, it was originalists on the Supreme Court who asserted that, “even in a pandemic, the Constitution cannot be put away and forgotten.” Justice Sonia Sotomayor would have upheld New York capacity restrictions. 

According to Sotomayor, the state’s public-health officials must be allowed to act “particularly when those regulations save lives.” Similarly, Justice Elena Kagan would have kept the California ban on indoor worship. She wrote, in dissent, that “California’s choices make good sense.” Though there is strong evidence that communal worship can be done safely, I don’t doubt that both Sotomayor and Kagan believed restricting the right to worship served the “common good.” 

This past February, Newsweek opinion editor Josh Hammer joined Vermeule in lending his support for the cause of “common-good constitutionalism.” 

In an opinion piece in Public Discourse, Hammer pointed to the Supreme Court’s resolution last summer of Bostock v. Clayton County. In that case, Gorsuch — a staunch originalist — wrote for the majority that Title VII’s anti-employment discrimination law defined sex as encompassing sexual orientation and gender identity. Hammer argued that the Bostock decision “laid bare the pitfalls of a morally denuded, overtly positivist jurisprudence.” His proposal: Rely on “common-good originalism” instead. Hammer didn’t mention the fierce opposition of all of the other originalists on the Supreme Court, including a scathing dissent by Alito, who called Gorsuch’s majority opinion a “pirate ship” that “sails under a textualist flag.” Perhaps Hammer knew that doing so would have taken a bit of the wind out of the sails of his own ship. 

Going back to the fate of religious freedom under this new approach, I wonder whether a common-good constitutionalist would defend the religious objection of the Archdiocese of Philadelphia’s foster-care agency to certifying same-sex couples? With 29 other private agencies working with the city willing to do so, perhaps he or she would rule in favor of the agency. Or maybe the justice would say that the decision of city officials to promote foster parenting to all of its citizens is such a noble cause that it allows for no dissent. 

Professor Joseph Capizzi, the director of the Institute for Human Ecology at The Catholic University of America, recently gave a lecture at the Thomistic Institute entitled, “The Sum Total of Our Disagreements: The Common Good and Liberal Governance.” Capizzi makes several important points. One is particularly helpful: “Failing to profess the common good does not equate to failing to seek it.”

Many Americans today feel that our country is facing a grave moral crisis. While the daydreaming of common-good constitutionalists sounds attractive, abandoning originalism can undermine the very freedoms that make the common good possible.

Andrea Picciotti-Bayer is the director of the Conscience Project.