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Whose Common Good?

1,503 words

The prevailing conservative legal theory is ripe for a challenge in the nationalist era. Ever since the 1970s, originalism — which mandates a strict interpretation of the Constitution’s original intent — has held sway over the American Right. This mindset has resulted in a deification of the Constitution and the inability to recognize current predicaments as different from the 18th century.

All of our answers lie within the narrow confines of the Constitution’s original “public meaning”; there’s no need for any further inquiry. Originalism is largely responsible for Conservative Inc.’s masturbatory worship of the Constitution.

This theory seems ill-equipped to handle the crises of our current age and incapable of advancing a nationalist agenda. There is now a possible challenger to originalism’s reign on the Right — “common good constitutionalism.” Articulated by Harvard Law professor and integralist Adrian Vermeule, this theory aims to make the common good, not the Constitution’s original public meaning, the focus of jurisprudence. This is an attractive idea, but it can’t escape the insidiousness of its chief proponent. Common good constitutionalism could be far worse than originalism in practice.

Vermeule outlined his legal theory in The Atlantic last week. The Atlantic is not exactly the expected place to publish your argument for an authoritarian and reactionary regime. Liberals were furious that such an austere publication would post a “fascist” manifesto. Liberal critics made common good constitutionalism sound much cooler than it actually is. University of Baltimore law professor Garrett Epps compared Vermeule’s proposal to Falangism and worried it would bring tyranny to America. Many conservatives were also appalled by Vermeule’s idea, primarily for its dispensing with the Constitution and its’ “leftist” overtones.

Vermeule’s idea is worthy of criticism, but not for the reasons liberals shriek about.

The Harvard law professor begins his essay by stating how originalism has lived out its utility. He argues that legal conservatives embraced it to survive in a profession dominated by left-liberal theories. But now this is no longer necessary:

Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

Originalism is now “an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.”

So Vermeule deigns to offer a more robust and more illiberal alternative:

This approach should take as its starting point 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. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and 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. Such principles promote the common good and make for a just and well-ordered society.

He adds: “Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well.”

You can buy Greg Hood’s Waking Up From the American Dream here.

This sounds like music to right-wingers. A legal theory that upholds hierarchies and reorients itself to serving the collective good rather than individual autonomy?! BASED!!

However, one must ponder what judicial rulings we will see under a “common good” regime. Vermeule avoids specifics, but he does imply it would take away gun rights, suppress “dangerous” speech, and force everyone to receive vaccinations. He makes vague claims that abortion and sexual liberties would be treated differently under common good law, but doesn’t say how. If you did not know Vermeule was a self-professed integralist, you would think his essay is a call for liberal elites to have greater control over our lives. Judges and other officials would no longer be shackled by the Constitution or the pretense of objectivity — they would rule on whatever they think is the common good.

Vermeule wants the law to be based on morality and concerns for “human dignity.” An AWFL lawyer would say the same thing.

Even though this idea sounds good upon initial reading, it would be disastrous for it to ever gain power under our present circumstances. Our social morality doesn’t come from the Catholic Church or national tradition; it’s determined by secular liberals who believe the highest goods are diversity, equality, and tolerance. Judges operating under common good assumptions would rule in favor of whichever result upholds these virtues. Unless there is some massive cultural revolution awaiting us in the future, conservative morals will not influence these elites.

The only legal changes we can discern from Vermeule’s essay and past writings is that a common good order would enact gun control, impose hate speech laws, and mandate open borders. This isn’t the Catholic imperium trads envision.

It’s also hard to see how liberal elites would be upset with this framework. Plenty of liberal judges already make decisions based on what they think is morally right. They will protect illegal aliens and find the hidden constitutional amendment allowing the whole world to immigrate here if they think it’s for the “common good.” Vermeule allows liberal elites to dispense with any pretense of objectivity or concern for the Constitution. They only need to worry about the common good — as they define it.

Of course, this is not Vermeule’s intent. He wants judges to base their rulings on Catholic social teaching and to follow church orders. That’s only slightly better than the dictates of liberal elites. Vermeule believes a Catholic state should suppress the Dissident Right and outlaw “racism,” as stated in since-deleted tweets. His state wouldn’t allow whites to be armed or speak out for their interests. We would all have to accept the glory of having our nation invaded by millions of supposedly Catholic Mayans.

Vermeule’s immigration policy should disgust every nationalist and conservative. He demands America favor Catholics, which translates into a policy that would bar nearly all white immigrants.

This principle will disproportionately favor immigrants from Africa, Asia, and Latin America. (Note here that the priority is for actual Catholics, not for applicants from “historically Catholic countries”; relatively few Western Europeans will pass through the eye of the needle, and the Irish will be almost totally excluded). It will disproportionately favor the poor, and will draw no distinction between those seeking asylum based on a fear of persecution, and those fleeing “mere” economic hardship. It will, in effect, require opening the southern border of the United States. . .

The immigration proposal goes on to call for a one-world government ruled by the Catholic Church.

This is the “common good,” according to Vermeule.

Nationalists certainly need a new, more robust legal theory than originalism, but Vermeule is the last person we want to articulate it. This regime would just be a worse version of what we already have. At least current law allows us to have free speech, gun rights, and borders.

Common good sounds, well, good. However, it needs to spell out what is the common good. The common good under a nationalist regime would be that which serves the interests of the historic American people. It would not strive to conform to every single note of Catholic social teaching or see foreign elements as part of the body politic. The common good would not be an abstraction to the people–it would be their interests. Law-abiding Middle Americans would not have to worry about their gun rights or their communities ruined by Somali refugees. The courts would know that these actions go against the common good.

You cannot have a common good when the people share nothing in common. Vermeule hopes we turn into a Catholic nation, which won’t even happen with mass immigration from Latin America. Most American Hispanics leave the Church. What common good can be agreed upon in a multicultural, multiracial, multi-faith state? The unimpeded pursuit of money? Racial grievances against whites? “Liberty”?

Liberal commissars would come up with a more logical and more horrifying “common good” than Vermeule imaginary zealots.

The main legal concerns for nationalists right now are preserving our right to bear arms, our right to speak and associate freely, and our right to have immigration controls. Common good constitutionalism threatens all three; originalism doesn’t.

We certainly need an alternative to the worn-out legal theories of old. But Vermeule’s proposal ain’t it.

 

10 Comments

  1. James O'Meara
    Posted April 6, 2020 at 8:25 am | Permalink

    Nobody talks about a Master Race unless they believe they belong to it. No one talks about IQ unless they think they have a high one. Traditionalists want a return to the caste system since they think they would be Brahmins.

    Trad Caths want the world to be run by the Pope, for various supposedly theological “reasons;” only, they want to choose the Pope first. The Pope has absolute authority — if they agree with him. Um, so doesn’t that mean YOU have the authority? Their arguments assume Pope Leo X is still on the throne. But alas, Francis is Pope, and he “would enact gun control, impose hate speech laws, and mandate open borders. This isn’t the Catholic imperium trads envision.”

    I must say I did have a good laugh at Vermuele’s disqualification of the Irish — what would Bill the Butcher say?

    Conservatives support “Constitutionalism” because the US Constitution happens to provide for what they want to have guns, free speech etc. The Canadian Constitution, or that of Bhutan, not so much. So, is Constitutionalism true or not? It’s just so much chin music to disguise the simple fact that this is the result they want.

    All this would be much clearer if they had the courage of Max Stirner and disdained searching for justification, like a slave: why do I want this? Because I want it.

  2. Posted April 6, 2020 at 10:28 am | Permalink

    The only reason originalism seems dated is because the Constitution is over two centuries old. If something needs to be changed, there are ways to amend the Constitution. The absolute worst way to change it is to give some judge – or five out of nine – the power to play word games and make it stick. Early on, Marbury v. Madison opened the door, but the system still worked properly for a long time. Then after the Warren court, they’ve been abusing their power and exceeding their authority routinely. Collectively, their wrecking job has been almost as bad as the 1965 Immigration Act.

  3. Alexandra O.
    Posted April 6, 2020 at 10:33 am | Permalink

    I’ve noticed throughout my life that wherever the Catholic Church ‘rules’, the country remains horrendously poor and totally disorganized. Everybody believes in Original Sin and that the Pope will get them out of their mess on Earth by praying to the Virgin Mary. I left that nonsense at age 16, which is approximately the ‘Age of Reason’ for an intelligent person. I tried going back for comfort in my 30’s, but it was nonstop sermons on the horrors of abortion, which certainly did not involve me, since I’d had an hysterectomy for tumors, something (the surgery) which is forbidden by the Church. So, what should I have done — crawl off and die of cancer? Professor V. should be run out of the country!

  4. HamburgerToday
    Posted April 6, 2020 at 11:39 am | Permalink

    Nicely said. The Left really has it all over on The Right when it comes to justification. The idea that you need a legal theory is, on its face, an Enlightenment enterprise, which means that it is anti-traditional from the get-go. Theories are for people who don’t have traditions, which is, unfortunately, where we are.

    In the end, intellectuals would like everyone to believe that ideas are more important than the systematic application of unpleasantness. Its’ not. There really is only one principle that seems to work in all places and all times: Deterrence.

    Its’s because of BS like what Vermuele produces that I’m so glad I’ve come to be a White Nationalist. It’s so clarifying. You can nuance the WN position, but you don’t have to. All you need to know is that every issue, every policy must be filtered through a simple filter: Is it good for the Whites?

    I had a lovely exchange with an individual who purported to be a Black person who was trying to challenge the claim that White people have been displaced in their own nations by non-White people via the Civil Rights Act and my position was that the CRA should be abolished and all the laws and legal decisions devolving from it nullified. When the maybe-Black got around to saying, ‘So you think the Segregationists were right?’, I had my answer: Your Black solidarity makes you think the Segregationists were wrong. My White solidarity make me think they were right. Stalemate. Welcome to the wonderful world of ‘identity politics’.

  5. Arthur Konrad
    Posted April 6, 2020 at 1:04 pm | Permalink

    Originalism isn’t all that bad for what it makes, but, as every legal “theory” (which boils down to analyzing positive practice, and suggesting how to alter it to have it your way), it is just a rhetorical weapon for winning rhetorical wars in the non-sensical political scheme of today. Theories of law are just about as useless as theories of economics when it comes to explaining social dynamics, even though economists are louder, more persistent, and more dimwitted when it comes to having their nightmarish ideas made into reality.

    An amusing instance of jurisprudence viewed from the Right is the English jurist Henry J.S. Maine. The finest example of that old Anglo-Saxon blend of composure and punch.

  6. D.M.
    Posted April 6, 2020 at 3:06 pm | Permalink

    The fundamental question is ontological: What IS the Constitution? Is it complete within its four corners, or does it encompass principles that lie outside the written text? If so, which? By which criteria do we decide on such principles? The 9th Amendment implies there are unenumerated rights, and that was one of the bases for the seminal 1965 Griswold v. Connecticut decision, which introduced (or discovered) the right to privacy as an implied or penumbral right. Connecticut had passed a law banning contraceptive even for married couples. Griswold went on to form the basis of Roe v. Wade.

    Original intent has problems. How do we discover it? Whose intent matters, the founders or state legislators who ratified the C., and whose votes are necessary for electing constitutional amendments? All of them are dead. The OI doctrine seems to make the C. hostage to lawyers’ manipulated versions of history.

    The same kind of question can be raised about literary, film, or any kind of artistic interpretation. Should authorial intent govern the interpretation of literary texts or artworks? Is literary interpretation reducible to biography? Seems unlikely. The writer’s role and the critic’s role seem different.

    There are good arguments for broad interpretation. But how to limit it? Ronald Dworkin argued for fit and justification as the adjudicating criteria.

    An old nugget: Hard cases make for bad law. But constitutional interpretation brings legal positivism and natural law theory into conflict. The Nuremberg trials were decided on a natural law perspective: unwritten, universal, natural laws. Did that undermine or uphold the rule of law?

  7. Dennis
    Posted April 7, 2020 at 7:11 am | Permalink

    This is just blatant disinformation as part of a smear campaign against the Church. The Church does not prohibit hysterectomies in cases of cancerous tumors.

    The rest is also mere caricature, spouting nonsense because of your teenage disillusion. Do try to educate yourself.

  8. Dennis
    Posted April 7, 2020 at 7:30 am | Permalink

    While Catholic integralism is indeed the ideal ruling principle for society, Vermeule seems at times to forget that the USA is not primarily a Catholic country (to its detriment), and integralism can only work as a practical matter in a homogeneously Catholic country where the people do indeed share a vision of the Good Society [Indeed homogeneity may be the more important factor in developing an integral vision of the Good Society or the Common Good. For even in non-Catholic countries that were once largely homogeneous, despite being largely secular or Protestant, something similar to an integral Catholic vision of society once held sway until very recently – i.e. Scandinavia. As the Scandinavian countries continue to commit ethno-cultural suicide through the importation of Third World immigrants, that integral and cohesive vision of society is crumbling, as once high-trust societies fall prey to rising crime and other social pathologies].

    In a fractured, largely secular (though nominally Protestant) country like the USA, and given the current state of American culture, Vermeule’s type of jurisprudence will only result in Woke Leftism being imposed by force. The only way to try to hold the line against THAT is to fall back on originalism and appeals to limited government. It may not be ideal (especially since it still concedes working within the basic liberal principles and institutions of the Founding, which are themselves part of the problem), but we have to work with what we have.

  9. Posted April 7, 2020 at 2:55 pm | Permalink

    Legal theories are powerful weapons in the hands of the ruling elite, but millstones around the neck of any political movement striving to attain power. Even though I am a lawyer by trade and education, I do not concern myself much with legal theories, and will probably not do so unless we win and need such a theory to justify our rule, at which point I believe such a theory will as if by magic, make itself self-evidently apparent.

  10. inq
    Posted April 8, 2020 at 7:16 am | Permalink

    “(..) 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.”

    Should laws legislate morality ?
    If morality is about right and wrong, then whose morality should we legislate ?
    This is about laying ground for Authoritarianism.

    The Founding Fathers mentioned “self-evident” morality.
    According to Jefferson:
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness—that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed …”.

    The above actually says that government’s role is to secure these self-evident truths and unalienable rights.
    The government’s role is to be a guardian of law.
    The governed’s role is to initiate legislative acts.

    The Founding Fathers did not enumerate more specific truths and rights, even those pertinent to their times – that was their intention.
    It is a proof of how wise they were.

    “Plenty of liberal judges already make decisions based on what they think is morally right”.
    Exactly. They do not interpret the law; they legislate, which is not their job !

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