Josh Hammer

Josh Hammer

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Joshua Benjamin Hammer (1989–) is the senior editor-at-large for Newsweek since 2020, and a former editor for The Daily Wire. He also has connections to right-wing organizations like The Edmund Burke Foundation and the Federalist Society. He worked for the 2016 Presidential Campaign of Ted Cruz and has a reported friendship with Florida Governor Ron DeSantis.

Common good originalism

Hammer is most well known for his political idea of "common good originalism," an attempt to find a compromise between the idea of "common good constitutional" put fourth by right-wing legal scholar Adrian Vermeule and the famous conservative idea of "originalism". In a paper for the Harvard Journal of Law and Public Policy, Hammer told his conservative readers that "common good originalism presents our best chance yet for a truly, substantively conservative jurisprudence that is faithful to our traditions, cognizant of where we have gone astray, and clear-eyed about our future." However, what it actually entails is something Hammer has barely explained, to the point where, when directly asked about it by Ian Ward for an article in Politico, he basically said it was little more than an attempt "to kind of salvage that label" as opposed to actually moving the debate forward.

To put it another way: it was rather obvious Hammer is starting at his conclusion and working backwards, something he rarely tries to hide. A 2021 article from Public Discourse makes this clear, as he primarily discusses how the conservative movement needs a new legal theory, and ends the article not by promoting its merits but by pointing out what it would oppose:

Consider a few examples. Common good originalism stands athwart individual autonomy-maximizing, natural law-undermining marriage cases such as Obergefell v. Hodges. It would lend legitimate interpretive support to “The Lincoln Proposal” in the all-important right-to-life context. It would mightily oppose Jeffersonian notions of "separation of church and state" and the concomitant Supreme Court case of Everson v. Board of Education, bestowing a constitutional imprimatur upon political actors’ various attempts to codify ancient and Biblical principles of natural justice. In the economic sphere, it would more directly aid political actors who seek to enact means — such as the “American System” elements of a national bank and internal improvements — best suited to creating jobs and locking in political support for the emergent multiracial working-class coalition upon which American conservatism must, and will, depend in the twenty-first century.

However, a legal theory does not have value based on what its outcomes are, it instead should be based on how solid its legal scholarship is.

Mind you, this is partly because of Hammer's disbelief in an "apolitical" or neutral Supreme Court, responding to a comment from Supreme Court Justice Sonia Sotomayor, Hammer writes that she has already embraced the idea of a political court, and conservatives should stop trying to create an apolitical one and should instead embrace the political court while making sure their ideology is the political one in control:

Sotomayor's "gaffe" is yet another eye-opening insight into the legal left's view of the courts: that of transparently political institutions pliable to political (read: judicial) actors' sheer force of will. The remedy, at this increasingly late hour of the American republic, is not for the legal right to wholly abandon its more traditional, "formalist" fidelities to constitutional text, structure and history, but rather to embrace a more holistic, morally imbued and substantive conception of the relevant text, structure and history. The time for an avowedly "neutral" legal positivism has long passed, if it was ever felicitous to begin with. The legal right should not stoop to the legal left's level, but it must get comfortable with a jurisprudence unabashedly rooted in the morality and justice of the American Founding and substantively oriented to reclaiming that morality and justice from those who seek to destroy it.

Because of this, it is rather clear that Hammer is looking for a legal theory to back up his beliefs, but his justification is primarily that the other side is already engaging in this exact action and that it's the only way to get their goal.

Everything I don't like is slavery

What of Hammer's most common tactics is to compare everything, and we do mean everything, he doesn't like to slavery and those who oppose it to Abraham Lincoln. For example, in his aforementioned article on Common Good Originalism, Hammer calls Roe v. Wade "the twentieth century’s moral and jurisprudential successor to the Dred Scott case" with his citation being his own article from The Daily Wire. As Hammer explained in that article:

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.

Even if one morally disagrees with abortion, using this as a reason for Roe being wrongly decided simply fails to hold water. What follows from this information is not that abortion, nor slavery, are unconstitutional, but that sometimes the constitution allows morally questionable or even abhorrent things. Remember, it took a constitutional amendment to end slavery, meaning slavery was at least understood to be constitutional enough to where a constitutional amendment was required to end it. However, Hammer has never attempted to advocate for an anti-abortion constitutional amendment, instead saying the tools to win are already there.

This is far from the only example. One 2020 article he published saw him talking about how Lincoln would have opposed same-sex marriage and on another occasion he criticized Democrats who focused on democracy by saying, "Do modern Democrats agree with their partisan forebear, Stephen Douglas, in his famous 1858 debates with Abraham Lincoln? Douglas was the more avowedly 'pro-democracy' candidate, after all!"

Giving voice to conspiracy theorists and extremists

Hammer's tenure at Newsweek has been characterized by giving space to conspiracy theorists within the editorial page, including Jack Posobiec (the promoter of Pizzagate), Dinesh D'Souza (who made the 2020 election conspiracy film 2000 Mules), and election denialist John Eastman. Hammer has also endorsed anti-democracy extremists such as Viktor Orbán and Arizona Senate candidate Blake Masters.