Common Good and Evil

Removing constitutional obstacles to power in the name of the common good is a dangerous, delusional idea

Last month, I wrote about what I termed “right-wing collectivism“, an emerging political doctrine that blends support for using the power of the state to advance traditional moral values, a hostility to free markets, and nationalism. Two texts published last week have prompted me to return to this subject: Adrian Vermeule’s instantly-notorious essay in The Atlantic urging a “robust, substantively conservative approach to constitutional law and interpretation”, and Thomas Falcone’s guest post on this blog defending right-wing collectivism against my criticisms. Between them, they show this ideology’s incipient authoritarianism and incompatibility with any genuine belief in human dignity, freedom, and the Rule of Law.

Before proceeding further, I should note that one reaction people have had to Professor Vermeule’s argument has been to wonder whether he is simply trolling everyone. Sarah Isgur made this case quite forcefully on the Advisory Opinions podcast, for instance. And certainly his “response” to criticism of his article, over at Mirror of Justice, is trollish. But, as David French argued on Advisory Opinions, Professor Vermeule’s argument reflects a real, if eccentric, current of thought on the political right. Randy Barnett, in his reply to Professor Vermeule, also worries about “a disturbance in the originalist force by a few, mostly younger, socially conservative scholars and activists … disappointed in the results they are getting from a ‘conservative’ judiciary” in the United States. I too will treat the arguments of Professor Vermeule and Mr. Falcone seriously; all the more so since the rhetoric of combating epidemics of various ills, which they both employ, is, as Anne Appelbaum points out, already being used by the Hungarian dictatorship ― much admired, as Damon Linker has observed, on among American right-wing collectivists.

Professor Vermeule’s argument is, on its face, about constitutional interpretation. But he makes it clear from the outset that constitutional doctrine is, for him, only a tool in the service of politics. Addressing conservatives, he argues that they should give up on originalism, which many have supported in recent decades, because it has become “an obstacle” to the promotion of “strong rule in the interest of attaining the common good”. Mr. Falcone too defends, if less articulately, an activist government acting, supposedly, in the service of “the highest good”.

What, then, is the “common good”, the banner under which Professor Vermeule wants to make a stand against and defeat what he says as “the relentless expansion of individualistic autonomy”? Generally speaking, it consists in

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.

In terms of substantive policies, the common good involves “cop[ing] with large-scale crises of public health and well-being—reading ‘health’ in many senses, not only literal and physical but also metaphorical and social”. It means “protect[ing] the vulnerable from the ravages of pandemics, natural disasters, and climate change, and from the underlying structures of corporate power that contribute to these events”, “from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment”. It also means and “enforcing duties of community and solidarity in the use and distribution of resources”, and empowering “[u]nions, guilds and crafts, cities and localities, … as will the traditional family”. 

Mr. Falcone too suggests that “when we evaluate public policy proposals we adjudicate their desirability against whether or not they help or harm our shared social goods, like the family”. Like Professor Vermeule, he abhors the idea that the state ought to be impartial as between competing conceptions of the good life, illustrating it with the example of a “state … ‘neutral’ as to whether people choose have [sic] jobs or sit around smoking cannabis”, which he claims “would be nonsensical to the average person on the street”.

Professor Vermeule outlines a fairly detailed agenda for constitutional law, put in the service of the common good, so understood. Its “main aim” would be “certainly not to maximize individual autonomy or to minimize the abuse of power” (an idea that Professor Vermeule declares “incoherent”). Mr. Falcone does not provide detailed prescriptions for the law, but he similarly rails against the idea, which he attributes to me (only half-correctly) “that power itself is an evil and thus there should be no power”. Professor Vermeule argues that, rather than limiting power, constitutional law must “ensure that the ruler has the power needed to rule well”. So too Mr. Falcone is adamant that “power is real and always will be”. The question is who wields it, and against whom.

Indeed, the ruler needs to be able to exercise this power

for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

To achieve this, constitutional language can be repurposed and read so as to suit the new agenda. More importantly, constitutional doctrine should be built not on textual provisions, but on insights into “the general structure of the constitutional order and in the nature and purposes of government”. And so, much of the existing constitutional jurisprudence ― in areas such as “free speech, abortion, sexual liberties, and related matters”, as well as “property rights and economic rights” ― will be “vulnerable”, “have to go”, “fall under the ax”, or indeed “be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after”. (This latter sentence is reserved for “[t]he claim, from the notorious joint opinion in Planned Parenthood v Casey, that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life'”.)

This will enable government “to protect the public’s health and well-being … even when doing so requires overriding the selfish claims of individuals to private ‘rights'”.  Mr. Falcone echoes Professor Vermeule, denouncing what he describes as libertarians’ ” religious devotion of individual preference maximization and” desire to “ruthlessly supress [sic] any suggestion that time, tradition, community, or common sense may occasionally contain more wisdom than the proclivities of any one person”.

As noted at the outset, Professor Vermeule and Mr. Falcone are defending authoritarianism against the claims of freedom and the Rule of Law. They think that the government can identify moral objectives that deserve to be pursued, and the citizens ― or rather the subjects ― have no moral claim against conscription into this pursuit. At best, those who disagree with the objectives or with being made to serve them will come to see the error of their ways, as Professor Vermeule hopes. But if not they will simply be silenced. After all, politics is nothing more than a power struggle; to limit power is a fool’s hope ― the wise man knows that he must put himself into a position to exercise it. These disciples of Saruman are wrong at every step in their reasoning.

How are the governments to decide on their definitions of the common good, on the morality they will legislate? Professor Vermeule is coy about this ― in his essay in The Atlantic. But, as Professor Barnett notes, from his other writings, we know that he makes “an argument for the temporal power of the state to be subordinated to the spiritual power of the [Catholic] Church” (emphasis Professor Barnett’s). Mr. Falcone’s position, as best I can tell, is that moral the appropriate moral values are already widely shared. Now, these two are obviously at odds with one another: it is quite clear that, to the extent that Americans or Canadians share values, these values are certainly not those of the Vatican. This makes Professor Vermeule’s position all the more remarkable ― his understanding of the common good is rejected by an overwhelming majority of the people whose common good it purports to be. It can only be forced on them by a ruthless dictatorship. But Mr. Falcone’s position is no more attractive. If Canadians already agree on the importance of particular values, what’s stopping them from living accordingly? Why do they need to be coerced by the government into acting in accordance with what are supposedly their beliefs? If people already prefer working to “sit[ting] around smoking cannabis” ― as I agree with Mr. Falcone most probably do ―, then why does the state need to subsidize or force them to do so?

Of course, as Jonah Goldberg points out in a recent episode of his The Remnant podcast, even when people largely agree on values stated in the abstract, as they do on the proverbial motherhood and apple pie, it does not follow that they agree on any particular policies that purport to implement them. To value work may entail the sort of wage-support policies to which Mr. Falcone refers or it may, on the contrary, suggest repealing the minimum wage to avoid pricing people out of the labour market. Similarly, valuing families may well push us towards policies of which right-wing collectivists would disapprove, be they marriage equality that helps people form families in the first place, free trade that leaves more money in families’ pockets, or school choice ― even when it is exercised in favour of schools that transmit decidedly non-conservative values.

But, beyond such policy disagreements, important though they are, understandings of both the common good and of personal morality and the nature of the good life are subject to endless debate. Again, the only way to avoid this is to simply prevent the expression of all but the officially approved views, as Professor Vermeule recognizes on at least some points. If the debate is allowed to continue but the majority is empowered to impose its views on the minority, then, as Professor Barnett explains “[i]n the legislature, might will make right”. And as the price of political defeat is nothing short of one’s annihilation as a morally autonomous individual, prospective losers are unlikely to accept this outcome. As Professor Barnett further writes: “what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?”

This is why state neutrality as between the competing conceptions of the good life is both morally right and good policy. It allows people of divergent views to remain in a political community with one another, combining their efforts for those limited common purposes on which they agree, such as self-defence and the enforcement of a limited subset of universal rights, notably life, liberty, and property through of framework of stable and general laws. This framework allows individuals and freely-formed associations ― although it should certainly not allow coercive “[u]nions [and] guilds” ― to pursue their moral aims, including charitable and benevolent ones, with minimal interference on the part of the state. A liberal society is not one of “atomized” individuals with no ties to one another; but the ties that exist in it are a web spun by individuals themselves, rather than a chain forged by the state.

But is neutrality simply a delusion, as Professor Vermeule and Mr. Falcone both contend? In a sense, of course, they have a point. Not all law is based in morality ― as Lon Fuller explained, there is a very real element of fiat in law (he spoke of the common law, but the same goes for statute), in addition to reason or morality. But, to be sure, the basic norms of criminal law, and arguably contract, tort, and property law too, have moral foundations ― notably those universal and widely agreed-upon rights. Yet there is a fundamental difference between this sort of background law and legislation enacted for “the promotion of morality”, as Professor Vermeule puts it. The former, even if it has moral underpinnings, leaves individuals almost entirely free to choose the purposes to which they want to devote their lives and largely, although not fully, free to choose the means by which they pursue their purposes. The latter doesn’t ― its whole point is to shape and limit both the ends and the means available to individuals.

A related point is that neutrality as between conceptions of the good life is not a cover for the enforcement of a progressive moral orthodoxy as Mr. Falcone, in particular, claims, with his bizarre insistence that libertarians “will ruthlessly suppress” conservative ideas. (I would have thought that, if not my outspoken advocacy for freedom of expression and conscience ― including for the benefit of conservatives whom I personally find bigoted, like the Trinity Western University ― then at least the fact that Mr. Falcone is able to publish such a claim on the blog that I founded should be proof enough that this just isn’t so.) A neutral state knows and accepts that not all individuals, families, and communities will orient their lives towards self-actualization, let alone self-indulgence. Some will devote themselves to religion or to community; some may reject the value of autonomy and extol obedience. The neutral state faces some difficult questions at the margins ― notably about the limits, if any, to the capacity of such individuals, families, and communities to shape and control the lives of their children. But there is nothing paradoxical about, at least, a very strong presumption that adults get to shape their lives in ways they choose, regardless of official approval. Libertarianism is a philosophy of politics and government, not an ethical programme ― and it’s a philosophy of politics whose point is to reject the imposition of ethical programmes by the government.

Perhaps the belief that a libertarian or classically liberal neutral state will in fact impose its own values and ideology on dissenters is due to a confusion between liberalism and a progressivism that has sometimes borrowed its name but consistently rejected its ideals. This progressivism, which would impose its beliefs ― originally technocratic with an egalitarian or at least populist flavouring, more recently egalitarian with a technocratic or at least pseudoscientific streak ― is just another version of collectivism. Indeed, the right-wing collectivism promoted by Professor Vermeule and Mr. Falcone, with its deep distrust of free markets (whether in goods, services, labour, or capital) and, apparently, a rather Marxist belief in “the primacy of production over consumption”, to use Mr. Falcone’s words, is not so different from its left-wing cousin.

But the other apparent explanation is that ― once again similarly to left-wing collectivists, at least those of the Leninist persuasion ― right-wing collectivists have come to believe that “who, whom?” is the central question of politics. That is to say, they believe that politics is a race to seize power and use it to silence or eliminate opponents. If you don’t do it, then someone else will do it to you. (This strikes me, if I may say so despite not being Christian, as a rather odd view for people who supposedly believe in turning the other cheek to embrace, but what do I know?) Hence their insistence that limiting power is an absurd or pernicious idea, an insistence whose vehemence reminds me Bulgakov’s Pilate, hysterically yelling, in response to Yeshua’s statement that all power is violence and will one day vanish, that “[t]here never has been, is not, and never will be any power in this world greater or better for people than the power of the emperor Tiberius!” Hence also their rejection of or at least desire to severely curtail constitutional rights; hence their attacks even on civility in argument.

To my mind, this is a wrong and pernicious ― indeed, as Mr. Goldberg suggested, a borderline evil ― way of looking at politics. This is partly because no one is entitled to be the “who” in Lenin’s question, and partly on the prudential grounds summarized by Professor Barnett. But this is also because, as longtime readers will recall me insisting in a series of posts, power corrupts. Power is addictive, and character can only slow down, but not prevent the poisoning of a person’s heart by its exercise; power breeds fear and, as Yeshua said, violence; it also begets lies; it encourages people to cut moral corners, not asking themselves difficult questions; and it apparently damages the very brains of those unfortunate enough to exercise it. It may be that Yeshua was wrong and Pilate right, and that “the kingdom of truth and justice” where power is not needed “will never come”. But that should not stop us from acknowledging that power is an evil, if perhaps an unavoidable and even necessary one, and from recognizing that power is to be distrusted, not celebrated.

From this recognition there should proceed, as I repeatedly insisted in my posts on the corrupting effects of power, a further acknowledgement of the importance not just of moral but also of institutional and legal constraints on power. We must continue to work on what Jeremy Waldron describes as “Enlightenment constitutionalism” ― the project of structuring government so as to separate out and limit the power of those whom Professor Vermeule calls “the rulers” and empower citizens. This project recognizes the need for power but also its temptations and evils, and the fallibility of human beings in the face of these temptations and evils. As James Madison, in particular, reminds us, we should strive to so design our institutions as to make these human weaknesses work for us ― but we can only do so if we are acutely aware of them.

This project of Enlightenment constiutionalism includes, as I have argued in my comment on Professor Waldron’s article, entrenched and judicially enforceable constitutions, with their rules on federal division of powers and on individual rights. More specifically, I would argue that it must include originalism, because originalism gives such constitutions real bite ― it creates at least the possibility, although not the certainty, that they will be enforced consistently, rather than according to the subjective and mutable views of the judges who happen to be entrusted with enforcement from time to time. The alternative, “living constitutionalist” approach, which authorizes judges to re-write the constitution does not so much limit power as transfer it to the judiciary. While this may produce results that align with a liberal theory of good outcomes, this is a failure of the power-limiting Enlightenment constitutionalism project. Thus, contrary to Professor Vermeule’s claim, originalism isn’t just a rhetorical device or a rallying banner for legal conservatives, but a legal technique which, as part of the broader toolkit of the Rule of Law, all those who rightly want power to be constrained, be they conservatives, liberals, or social-democrats, should embrace.

Right-wing collectivism ― even when it tries to make itself palatable by adopting the rhetoric of the “common good” ― is an ideology of almost unfathomable hubris. Its proponents imagine themselves to be possessed of great truths and entitled to impose these truths, at gunpoint, on those who do not agree with them. They imagine that the lessons of history ― about the bitter strife that any such attempts engender, about the misery that their quasi-socialist policies always produce ― are not applicable to them. They imagine, above all, that they are immune to the corrupting effects of power. They wrong, indeed delusional. In its embrace of unfettered power, above all, their view of the common good is a recipe for untold evil.

None of that tells us much about how we, individually and within our families and freely chosen associations and networks, should live our lives. To repeat, libertarianism or liberalism are political philosophies, not personal ethics. In a very real sense, political philosophy is of secondary importance; getting it right can do no more than leave us free to get on with the stuff that really matters. But, as Mr. Goldberg argues, it is very important not to confuse these two realms. The government cannot love us (unless, of course, it is the government of Oceania). It cannot provide us with Dworkinian “concern and respect”. Right-wing collectivists are dangerously wrong to pretend otherwise.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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