Josh Hammer

[[File:Josh Hammer.jpg|165px|thumb|right|Josh Hammer]]
{{Pundits}}
'''Joshua Benjamin Hammer ''' {{lived|1989}} is the senior editor-at-large for ''Newsweek'' since 2020<ref>[https://www.newsweek.com/josh-hammer JOSH HAMMER, SENIOR EDITOR-AT-LARGE]</ref> and a former editor for ''[[The Daily Wire]]''.<ref>[https://www.creators.com/features/josh-hammer JOSH HAMMER]</ref> He also has connections to [[right-wing]] organizations like The Edmund Burke Foundation and the [[Federalist Society]].<ref>[https://yaf.org/people/josh-hammer/ JOSH HAMMER]</ref> He worked for the 2016 Presidential Campaign of [[Ted Cruz]],<ref>[https://www.vox.com/2016/2/2/10892740/ted-cruz-iowa-caucus-speech Iowa caucus: Ted Cruz echoes Ronald Reagan in victory speech]</ref> and he has a reported friendship with Florida Governor [[Ron DeSantis]].<ref>[https://www.tampabay.com/news/florida-politics/2022/06/16/maga-influencers-flock-to-florida-chasing-political-clout-and-connections/ MAGA influencers flock to Florida, chasing political clout and connections]</ref>

==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]]".<ref name=Politico>[https://www.politico.com/news/magazine/2022/12/09/revolutionary-conservative-legal-philosophy-courts-00069201 Critics Call It Theocratic and Authoritarian. Young Conservatives Call It an Exciting New Legal Theory.]</ref> 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."<ref name=CGO>[https://journals.law.harvard.edu/jlpp/wp-content/uploads/sites/90/2021/06/Final-Hammer.pdf COMMON GOOD ORIGINALISM: OUR TRADITION AND OUR PATH FORWARD]</ref>{{rp|43}} 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.<ref name=Politico/>

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:

{{quotebox|Consider a few examples. Common good originalism stands athwart [[Rugged individualism|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 [[Pro-life|right-to-life]] context.{{efn|"The Lincoln Proposal," as explained in the article Hammer links,<ref>[https://www.thepublicdiscourse.com/2020/11/72631/ The Lincoln Proposal: Pro-Life Presidents Must Take Ambitious and Bold Action to Protect the Constitutional Rights of Preborn Children]</ref> is basically the idea that the [[Fourteenth Amendment]] could be used to establish "preborn personhood" and therefore outlaw abortion in the United States.}} It would mightily oppose [[Jefferson]]ian 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 [[Appeal to ancient wisdom|ancient]] and [[Biblical]] principles of natural justice. In the [[economic]] sphere, it would more directly aid political actors who seek to enact means&nbsp;— such as the “American System” elements of a national bank and internal improvements&nbsp;— best suited to creating jobs and locking in political support for the emergent multiracial [[Working class|working-class coalition]] upon which American conservatism must, and will, depend in the twenty-first century.<ref>[https://www.thepublicdiscourse.com/2021/02/74146/ Toward a New Jurisprudential Consensus: Common Good Originalism]</ref>}}

However, a legal theory does not have value [[Consequentialism|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:

{{quotebox|Sotomayor's "gaffe"{{efn|For those curious, what Sotomayor said was  "You know, I can't change [[Texas]]' law, but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don't like" while talking to the American Law Association and discussing a controversial abortion restriction in Texas. She went on to clarify, "I am pointing out to that when I shouldn't because they tell me I shouldn't. But my point is that there are going to be a lot of things you don't like." Hammer basically argued that her saying law can be changed this way was the same as saying it should, and said this made Sotomayor's alleged bias against the law even though she was making the point that the Supreme Court might not be able to change the law being challenged. None of this is even getting into how he says "Sotomayor should now be forced to recuse from future S.B. 8 litigation at the Supreme Court" because of her political bias, even though his entire point in this column is that all judges are bias and conservatives should fight back with their own bias.}} 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.<ref>[https://www.creators.com/read/josh-hammer/10/21/sonia-sotomayor-exposes-the-lie-of-an-apolitical-supreme-court Sonia Sotomayor Exposes the Lie of an 'Apolitical' Supreme Court]</ref>}}

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 v. Sandford|Dred Scott]] case" with his citation being his own article from ''The Daily Wire''.<ref name=CGO/> As Hammer explained in that article:

{{quotebox|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 Amendment|Fifth]]/Fourteenth Amendment doctrinal ruse known as "[[substantive due process]]", both are deemed beyond reproach by judicial supremacists,{{efn|Aren't all Supreme Court cases by definition "beyond reproach by judicial supremacists"?}} and the opposition to each is led by the [[Republican Party]].<ref>[https://www.dailywire.com/news/hammer-abortion-is-a-grave-injustice-we-must-treat-roe-just-like-dred-scott HAMMER: Abortion Is A Grave Injustice. We Must Treat Roe Just Like Dred Scott.]</ref>}}

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,<ref>[https://constitution.congress.gov/constitution/amendment-13/ Thirteenth Amendment]</ref> 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]]<ref>[https://deliverypdf.ssrn.com/delivery.phpID=148071126119096102098090089010024024033013028061061031073027085074121114120115093022007103016062046034116122083108104126024064103080042053020066108083080114097031010049065067065094004114005122082012009096071028009078026105087095103076115067002024026068&EXT=pdf&INDEX=TRUE Standing A Standing Athwart History: Anti-Obergefell Popular Constitutionalism and Judicial Supremacy's Long-Term Triumph]</ref> 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!"<ref>[https://archive.is/IOAb9 " find the Democrats’ incessant rhetoric about 'democracy' increasingly intolerable. 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!'] by @josh_hammer (8/22/2022) ''Twitter'' (archived from 28 Jan 2024 16:15:08 UTC).</ref>

==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.<ref name=hayden/> Hammer has also endorsed anti-[[democracy]] extremists such as [[Viktor Orbán]] and the Arizona Senate candidate Blake Masters.<ref name=hayden>[https://www.splcenter.org/hatewatch/2022/11/04/newsweek-embraces-anti-democracy-hard-right Newsweek Embraces the Anti-Democracy Hard Right] by Michaeel Edison Hayden (November 04, 2022) ''Southern Poverty Law Center''.</ref>

==Notes==
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==References==
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