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

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…

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