Responding to Professor Stephanie Barclay, Josh Hammer argues for a right-of-center method of jurisprudence--one which goes beyond positivism or "strict constructionism" by joining originalism and moral principles.

Some excerpts from the piece:

"In a recent Deseret Magazine essay, Notre Dame Law School professor Stephanie Barclay rebuts the trite and tiresome progressive objection that the constitutional interpretive methodology of originalism, as typically formulated, serves as a convenient fig leaf for judges seeking to advance a substantive right-wing political agenda. Barclay quotes Aziz Huq, a professor at my law school alma mater, the University of Chicago (and the furthest thing from a conservative, in his own right): 'The political discourse of originalism is closely aligned with the policy preferences of the Republican Party that has promoted judges who happen to take this perspective.'"

"A perhaps likelier explanation for the long-term rise of originalism as it has been most frequently formulated, along the avowedly positivist lines of how it was espoused by Scalia and the late Judge Robert Bork, is that its adherents viewed—and continue to view—positivist originalism as an intrinsic end to be pursued unto itself. Those in this classically liberal school of thought have ordinarily viewed a commitment to legal historicism and the elevation of a values-neutral proceduralism as the highest legal goods a sound judicial statesmanship in our republican form of government might hope to secure."

"Moral truth and originalism are inextricable from one another if one seeks a jurisprudence that is both faithful to our Anglo-American inheritance and worthy of the term 'conservative,' as we argued in 'A Better Originalism' and as Notre Dame Law School professor and James Wilson Institute trustee Gerry Bradley wrote in his masterful recent law review article, 'Moral Truth and Constitutional Conservatism.' And it is fairly straightforward to operationalize this conservative, moralistic, justice-seeking jurisprudence using the preferred methodological framework and even nomenclature of modern originalist scholarship, as I put forth in my own recent law review article, 'Common Good Originalism: Our Tradition and Our Path Forward.' This is where all the intellectual energy is right now in right-leaning jurisprudential circles. There is an intense hunger for something more than what the positivists and 'strict constructionists' have offered. Fortunately, we do not need to look very far for guidance."

Read the full piece here.