Commentary

The right has a hot new legal theory to destroy LGBTQ+ rights

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The Federalist Society – the right-wing legal group that Donald Trump made the selection committee for his judicial appointees – has had a lot of success peeling back LGBTQ+ rights by promoting the doctrine of originalism. Originalism tests laws on the principle of whether the nation’s founders intended the Constitution to be interpreted in a particular way. Unsurprisingly, conservatives like the ways things looked in the 18th century a lot more than they do today, so originalism has been a handy way of bending the law rightward.

The apotheosis of originalism was the Supreme Court’s decision that overturned Roe v. Wade. The majority decision included a tour of legal theory about abortion dating back not just to the founding of this country but 13th century England. 

However, for an increasingly fervent and authoritarian-minded group, originalism is no longer good enough. They want something more direct. That’s where a new legal theory, “common good constitutionalism,” comes in.

Common good constitutionalism is, in essence, the right wing deciding how to use the law to impose its view of the world on U.S. citizens. Harvard Law Professor Adrian Vermeule, the most prominent advocate for the idea, describes it slightly differently, of course. In a 2020 essay in The Atlantic, he relies heavily upon the “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.”

However, that list of principles is, in many ways, antithetical to what many Americans think of as liberty. They include “respect for the authority of rule and of rulers,” “respect for the hierarchies needed for society to function,” and most frighteningly, “a candid willingness to ‘legislate morality’—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.”

As Politico points out in a profile of the idea, the ramifications are radical: “the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them.”

The theory would allow the right to achieve most of its goals through the courts without worrying about precedent. That includes banning marriage equality outright.

Common good constitutionalism is emerging as a hot idea because some right-wing legal eagles are worried that originalism won’t be good enough to destroy decades of advances enabled by more liberal courts. They want to jumpstart the revolution now, and they need a legal fig leaf to do it.

While the debate may seem academic, the implications are not. It’s especially worrisome that the philosophy is popular among a particular segment of young lawyers, particularly conservative Catholics.

“These are the things that people are talking about in FedSoc chapters all over the place,” one law student from Georgetown Universityt told Politico, using shorthand for the Federalist Society. “I think our generation is a lot more open to it than the older generation.”

What turbocharged the debate about common good constitutionalism was the Supreme Court’s ruling in Bostock v. Clayton County. In that case, the majority ruled that an LGBTQ+ employee cannot be fired under federal civil rights law. That decision sent the right into orbit and provided momentum for a theory that would ensure them victory no matter what the law said.

Whether common good constitutionalism supplants originalism remains to be seen. But the idea that it can impose the society it wants through its own interpretation of “the common good” is a sign of just how far the right has moved toward authoritarianism. One thing is sure: They will never give up their attempt to eliminate LGBTQ+ rights. Marriage equality would just be the first step.

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