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I hate to say it, but this is based on a fundamental misunderstanding of what Common-good Constitutionalists are advocating. (/1) https://twitter.com/BayerPicciotti/status/1380569536446005249
Common-Good Constitutionalists do not advocate for ignoring the law as written, and by no means throw the First Amendment in the waste-bin. (/2)
They recognize that a judge's work necessarily requires the exercise of moral judgment, whether in resolving textual ambiguity or vagueness, or in crafting specific rules or tests to enforce broad textual guarantees. (/3)
For instance, Gorsuch's opinion in Bostock resolved alleged ambiguity in Title VII based on a substantive moral judgment that "discrimination" based on "gender identity" and "sexual orientation" was unacceptable. (/4)
Gorsuch's analysis was undoubtedly wrong as a historical and textual matter (no reasonable person in 1964 would understand "sex" as encompassing "gender identity" or "sexual orientation," but that doesn't get originalists off the hook. (/5)
Scalia's decision in Smith was not based solely on his value-neutral reading of the free exercise clause. It relied heavily on a moral judgment that Smith's activities were not deserving of judicial protection. (/6)
Likewise, Sherbert's "substantial burden"/"compelling interest" test can by no means rely wholly on the text, and was crafted in great part based on a moral judgment of the importance of religious practices. (/7)
Instead of a purportedly morally-neutral vision of rights, Common-Good Constitutionalists want Judges to exercise moral judgment in line with transcendent moral facts derived from the laws of God. (/8)
In giving weight to such moral considerations, judges would not disregard the text of laws (so long as a plain meaning can be ascertained), much less become judicial activists in the model of Justices Brennan, Warren, and company. (/9)
Instead Common-Good Constitutionalists would resort to transcendent notions of justice and consider the moral implications of their decisions on society in cases of ambiguity, vagueness, and in crafting rules to enforce constitutional/textual guarantees. (/10)
Rather than a wholly modern innovation, there is precedent for such an approach. (/11)
In Pierce v. Society of Sisters, SCOTUS struck down an Oregon law effectively banning religious schools, based in part on a moral judgment that the Fourteenth Amendment's liberty ought to protect parents' rights to provide their children with a Christian education. (/12)
In sum, Common-Good Constitutionalism is NOT a threat to conscience rights, properly understood. (/13)
Rather than adhering to the fiction that the judiciary's task is value-neutral, it would encourage judges to reflect on the moral implications of their decisions, particularly in cases of ambiguity and vagueness, and when crafting rules. (/14)
In Fulton, Common-Good Constitutionalists would interpret the Free Exercise Clause's applicability with a recognition of the moral implications of their decision on Christians' ability to provide charitable services families while living lives true to their Faith. (/15)
