Common Good Constitutionalism Considered

Right. I read it. And by “It” I mean, of course, Adrian Vermeule’s Atlantic piece.

Here’s the thing: Vermeule’s “Common good constitutionalism” is not actually that different from, for example, Hadley Arkes’ natural law constitutionalism. That tradition of Finnis-inspired Lincoln-loving conservative jurisprudence likewise rejected originalism—despite the fact that Arkes and Scalia were great friends, they disagreed on this—precisely on the grounds that there is no magic in the original text: the justice or injustice of a law depends on whether or not it comports with natural law, and tracing the “intent of the founders” is cultish ancestor worship, not commitment to good government.

Arkes would lean more on the concept and language of natural law, where Vermeule and his tribe lean more on the idea of the “common good,” but these are very obviously complementary ideas, not alternatives or competitors.

Besides originalism, the other conservative alternative to something like either natural law or common good constitutionalism is, essentially, what we mean when we say Burkeanism: the desire to slow change, the love of the old, the tendency towards accepting tradition for the sake of stability. This can be a wise Chesterton’s-fence move, but it too often either betrays a kind of nihilistic fear that there is no actual rational moral ground for law, or a craven desire for those in power to simply hold on to it. Vermeule rightly rejects this—and so, for that matter, did Burke. In his treatise on the Popery Laws, he wrote that

It would be hard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness of human society, than the position, that any body of men have a right to make what laws they please or that laws can derive any authority from their institution merely, and independent of the quality of the subject-matter. No arguments of policy, reason of state, or preservation of the constitution can be pleaded in favor of such a practice.They may, indeed, impeach the frame of that constitution, but can never touch this immovable principle. This seems to be, indeed, the doctrine which Hobbes broached in the last century, and which was then so frequently and so ably refuted.

He placed his criticism of misrule in Ireland firmly on a natural-law basis. Under the Penal Laws of Burke’s time, any Protestant who converted to Catholicism forfeited his lands to the crown, was to be held in prison at the King’s pleasure, and forfeited the King’s protection, such that no injury that he suffered could be brought before a court.

By the late 18th century, this was part of the time honored tradition of English rule in Ireland. That did not, in that case, make them the equivalent of Marie Antoinette’s silks; being imprisoned for Catholic conversion was, thought Burke, not one of those beautiful ceremonies of government that ought not to be drawn aside for the sake of decorum. It was simple tyranny.

It is this anti-Hobbesian natural law argument which Hamilton uses so sneakily and well in his reply to Samuel Seabury. Seabury had, in his Letters of a Westchester Farmer, called out Hamilton, saying “I wish you would explain to the public your ideas of the natural rights of mankind. Man, in a state of nature may be considered, as perfectly free from all restraints of law and government, and, then, the weak must submit to the strong.”

Hamilton replies,

It’s hard to listen to you with a straight face!

Chaos and bloodshed already haunt us–

Honestly, you shouldn’t even talk.

And what about Boston?

Look at the cost and all that we’ve lost

And you talk about Congress…

Don’t modulate the key then not debate with me!

OK, that’s not what he said. Instead, Hamilton said,

I shall, henceforth, begin to make some allowance for that enmity, you have discovered to the natural rights of mankind. For, though ignorance of them in this enlightened age cannot be admitted, as a sufficient excuse for you; yet, it ought, in some measure, to extenuate your guilt. If you will follow my advice, there still may be hopes of your reformation. Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius. Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend, diligently, to these, you will not require any others.

There is so strong a similitude between your political principles and those maintained by Mr. Hobbs [sic], that, in judging from them, a person might very easily mistake you for a disciple of his. His opinion was, exactly, coincident with yours, relative to man in a state of nature. He held, as you do, that he was, then, perfectly free from all restraint of law and government. Moral obligation, according to him, is derived from the introduction of civil society; and there is no virtue, but what is purely artificial, the mere contrivance of politicians, for the maintenance of social intercourse. But the reason he run into this absurd and impious doctrine, was, that he disbelieved the existence of an intelligent superintending principle, who is the governor, and will be the final judge of the universe.

Hamilton, here, is in many ways simply a supporter of what I have called natural law constitutionalism. That Finnis-inspired Straussian jurisprudence is, also, extremely fond of Federalist 70: let us recall Hamilton again:

There is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government… Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the law… to the security of liberty against the enterprises and assaults of ambition, of faction, and of anarchy… A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.

As Vermeule notes, it is abundantly clear now that a wise, decisive, and energetic executive is absolutely necessary in the fight against epidemic disease as well. Andrew Cuomo has, in this time (and for this issue, and very much not for others), been an excellent leader, and I am glad to have him for my governor. But still… one would rather not have to depend on a governor to have that kind of clarity; federalism and a states’-rights approach to Coronavirus containment seems … a bit of a second best, shall we say.

The good of energy in the executive, of a wise ruler, and of well-exercised authority, are things that at this moment we all can perhaps see more clearly than under ordinary circumstances. I have found myself craving this good government, this state of being-well-governed. It contrasts poignantly with what we have in our executive: waffling and negligence and fantasy, the sense of chaos and indecision and a lack of root in reality.

One can disagree with Vermeule on other bases. Feel free to do so: on the basis of the belief there should be no coercion in religion, for example, as a substantive principle. This was the principle on which Burke argued his defense of the Irish Catholics. But the description of the nature of government itself that he puts forward here is not particularly strange or alien: it is simply not at all liberal; yes, even Hamilton, to the degree that he championed this substantive good government, was not arguing as a liberal.

And those conservatives who reject it do so, whether or not they realize it, on liberal bases; their conservatism is right-liberalism. And the goods that it upholds do themselves allow for confrontation with genuinely tyrannical power, or at least they can. To reject tout court all aspects of the description of the purpose of government that Vermeule offers because you disagree with him on other fronts is to give up on any non-liberal vision of government, any good communitarianism. Those who are, now, spinning up anti-Vermeule thinkpieces ought to be very careful not to back themselves into an individualist and nihilistic corner.

These goods and this tradition also offer us on their own terms a quite sharp vision of what tyranny is, which proceduralist accounts of government may not. There is no room in this vision for hiding behind the fact that a dictator is popularly elected: if he enacts laws that are against the natural law and in violation of the common good, he has no shield from deposition, nor should he.

There are versions of this kind of conservatism that seem to subordinate the good of the individual to that of the collective, but this personalist critique misunderstands the nature of human society: of course a false “common good” may be used as a rhetorical tool to support the abuse of individuals, their coercion for the good of some other person or group. But the true common good simply never can. There is in reality no competition between individual good and the good of the community: we are members of each other in reality, and seeking to care for each person while, and by, caring for the community is a vision that is just as congenial to the communitarian left as it is to the communitarian right. This cuts, entirely, both ways: it is not good for a community if any member of it should be abused, unjustly ruled, exploited.

The only ones who do see a fundamental and irreconcilable tension are the liberals of both left and right. And in a time of epidemic disease, we see with crystal clarity that the biological world that they imagine they live in, as well as the moral world, is not the one which we really inhabit.