Most of this essay is fair, but there are some obvious misreadings. For example, I'm faulted for taking a hatchet to Founding-era federalism (e.g., Madison in Federalist No. 45), but my underlying article expressly raises possibility that Bill of Rights "incorporation" was wrong.
Also, a leitmotif in this essay, as with other CGO criticisms, is a rudimentary misunderstanding of what the "common good" is.
There are some "gotcha" attempts at alleged inconsistencies with respect to deference, modesty, expanding v. narrowing democratic majoritarianism, etc.
This misses the point. The common good, as I have elsewhere noted (admittedly only implicitly, not explicitly, in my underlying @HarvardJLPP essay), is *substantive*—not a procedural plea for majoritarianism.
So from this perspective, there is no inconsistency between, e.g., suggesting "anti-democratic" common good originalist outcomes with respect to abortion or birthright citizenship, while simultaneously taking a "democratic"/federalist approach to Bill of Rights "incorporation."
Also, this essay, like many other CGO criticisms, fails to grapple with what to do when a purely historicist judicial inquiry is indeterminate. I presume the answer is "legislative deference." That's simply unsatisfying.
Finally, this essay seems to think that it was merely Neil Gorsuch's defection in Bostock that prompted my revisiting the status quo. Not true.
Nearly five decades after Roe, only one sitting justice (Clarence Thomas) has actively called for its overturning. Yet we're "winning?"
Appealing to the increasing prevalence of originalism in the legal profession, legal academy, and the bench, as Dan does, is wholly unpersuasive if the dominant strand of "originalism," as conceived and practiced, fails to redound to conservatives' substantive interests.
This essay, like many others, would have been dispositionally fine (if still theoretically off-base) 10 or 15 years ago.
But in the year 2021, it's difficult to see this as anything other than a professed unawareness of what time it is in these troubled United States.
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First, on a personal note, I'd like to thank @NRO (some employees of whom I certainly consider friends) for apparently living rent-free in their heads this week. There was also @baseballcrank's fusillade against common good originalism. nationalreview.com/2021/08/explai…
1. On Tuesday, we released a really fun episode of @NewsweekOpinion's "The Debate" podcast: "Vaccine Mandates: Public Necessity or Government Tyranny?" art19.com/shows/the-deba…
2. On Tuesday night, I wrote my first piece on the Afghanistan withdrawal debacle, for @nypost, focusing on the great-power competition angle: "China outflanking US in the wake of Biden’s Afghan debacle." nypost.com/2021/08/17/chi…
3. On Wednesday, I published my latest piece with @CityJournal, this time looking at problems with using "public-nuisance" litigation as a way to hold Big Pharma accountable for the opioid crisis. city-journal.org/opioid-lawsuit…
The importance of the current geopolitical moment can’t be overstated. China senses a weak rival.
Secure the national interest, bolster longtime allies, and stop exporting effete Western liberalism: How hard is that for our failed ruling class to grasp? nypost.com/2021/08/17/chi…
Thanks so much to my friend @JennaEllisEsq for having me on @RealAmVoice tonight to discuss conservatism versus libertarianism and what I mean when I propose a jurisprudence of "common good originalism."
It has *long* been conservative orthodoxy that states possess near-plenary power over their curricula. Many on the Right have supported abolishing the Department of Education for decades on precisely these grounds. It's a federalism argument right out of Madison in Federalist 45.
What is the issue here? If blue states like California can mandate ethnic studies in their curricula (aside: have "principled" right-liberals objected to that on proceduralist grounds?), then how can red states not ban racially discriminatory pedagogy that's anathema to Title VI?
My latest long-form essay and @tabletmag debut is a look back at the history of the Israeli-Palestinian “peace process”—and how the Trump and Biden administrations fit into it. tabletmag.com/sections/israe…
@tabletmag For decades, Washington’s bipartisan "peace process" professional class pushed the same tired tactics to achieve Middle East peace. They failed. Trump changed the game. Biden’s legacy will partially depend on not messing it up.
@tabletmag Decades-long Palestinian intransigence makes a lot more sense when you consider what Arafat said in 1974: “We shall never stop until we can go back home and Israel is destroyed. The goal of our struggle is the end of Israel.”