Common Factionalism

The political rhetoric of the common good is poorly disguised factionalism, which the thinkers in whose name it is being advanced would have abhorred

The idea that law and politics should be organized around the principle of the “common good” is in the air on the political right. The left, of course, has had its versions of it for a long time. Both co-blogger Mark Mancini and I have written about “common good” arguments about legal issues, specifically the administrative state (Mark), constitutional law (me), and the Charter’s “notwithstanding clause” (also me), and found them severely wanting. A couple of recent newspaper articles give us an idea of what the “common good” philosophy looks like in practical politics.

On the northern side of the world’s longest closed border, Ginny Roth, writing in the National Post, identifies the Conservative platform in the late and lamented election with “a rich tradition of common-good conservatism that looks more like Edmund Burke than John Locke”. The master idea of this “new conservatism” (wait, is it new or richly traditional? never mind) is that “Conservatives must be positioned to build on the coalition of voters that will support it in this election by correctly identifying what appealed to them about the leader, the party and the platform”. Less blandly, “the left must not have a monopoly on populist politics”. The right should imitate the left, and in doing so advance the policies favoured, or assumed to be favoured, by “coalitions of voters who think the opposite of what the cocktail party goers do”. 

The same ideas, if that’s what they are, are to be found south of the aforementioned border in Josh Hammer’s column in Newsweek. (Mr. Hammer, it is worth noting, is one of if not the closest thing the “common good” movement has to a leader. He is also, apparently, a research fellow with an outfit called the Edmund Burke Foundation.) Mr. Hammer defends bans on private businesses requiring their employees or customers to be vaccinated against the present plague. In doing so, he claims to take the side of “common-good-inspired figures” against “the more adamantly classical liberal, libertarian-inspired pundits and politicians who believe the quintessence of sound governance is simply permitting individuals and private entities to do what they wish”. Mr. Hammer “explains” that “[v]accine mandates will be a convenient fig leaf for a ruling class already gung-ho at the possibility of precluding conservatives from the full panoply of in-person public life”. (Why is that the defenders of tradition so often struggle with their native tongue?) This “wokeist ruling class” must be stopped by a “prudential use of state power to secure the deplorables’ basic way of life”.


With apologies to H.L. Mencken, “the theory that the common people know what they want, and deserve to get it good and hard” seems to be an excellent description of common good conservatism, as propounded by Ms. Roth and Mr. Hammer. The common people are entitled to get their way, and to have the state’s coercive force used to ensure that they get their way. And no need to ask whether their preferences are consonant with some objective standards of morality, or the teachings of experts ― be it in economics, in epidemiology, or what have you. The beliefs of the common people are entitled to prevail because they are their beliefs, not because they are right.

Of course, it’s only the common people, that is, the right kind of people, that are entitled to have their way. The woke cocktail-swilling pundits and politicians are not. Even entrepreneurs, whom the conservatives of yesteryear lionized, must take their orders from those who do drink cocktails. In other words, what Ms. Roth and Mr. Hammer are promoting under the name of the common good is the view that the aim of politics is to give effect to the wishes of

a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

This is James Madison’s famous definition of faction, in Federalist No. 10. Ms. Roth might not have, but Mr. Hammer, who affects to be a constitutional sage as well as a political visionary, presumably has read the Federalist Papers. He’s read them, and has evidently concluded that he is cleverer than Madison, who feared faction as the seed of tyranny, civil strife, and destruction, and looked for ways to limit its ill-effects.

Madinson saw the remedy in “[a] republic, … a government in which the scheme of representation takes place”. A “republic”, so understood, would

refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Not so for Ms. Roth and Mr. Hammer. Not for them the refining and enlargement of public views by representatives. (It’s the cocktails, don’t you know?) The people themselves, and more precisely the “deplorables”, the ones whose views are the opposite of refined and enlarged, who must govern, and officials are to take their marching orders from them.

Poor Edmund Burke is spinning in his grave. His single most famous idea is doubtless the argument he advanced in his “Speech to the Electors of Bristol”, which deserves to be quoted at length here:

Certainly … it ought to be the happiness and glory of a Representative, to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and, above all, ever, and in all cases, to prefer their interest to his own. But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any sett of men living. These he does not derive from your pleasure; no, nor from the Law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your Representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy Colleague says, his Will ought to be subservient to yours. If that be all, the thing is innocent. If Government were a matter of Will upon any side, yours, without question, ought to be superior. But Government and Legislation are matters of reason and judgement, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one sett of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

The populism masquerading as “common good” conservatism being peddled by Ms. Roth and Mr. Hammer is the opposite not only of John Locke’s ideas and James Madison’s, but also of the deeply held views of the great man they dishonour by pretending to admire him.


I should note that there a more purely intellectual and, not coincidentally, intellectually respectable version of the “common good” thought. For the reasons some of which I set out more fully in my earlier posts, I don’t find it compelling. But, at its best, it does involve an honest reflection on the good of the community rather than window-dressing for factionalism. Michael Foran speaks from this perspective when he tweets that “[t]he Common Good shouldn’t be used as the new phrase for whatever political position one happens to already hold. A claim that X is in the common good needs to explain how X is both genuinely good and genuinely common in its goodness.”

As it happens, Adrian Vermeule (among others) has recently shared his thoughts on vaccine mandates with Bari Weiss, and they are not at all in line with Mr. Hammer’s. Along with much sniping at libertarians (does he think Mr. Hammer is one?), he argues that “the vaccine mandate is analogous in principle to … crisis measures” such as wartime conscription or the destruction of property to stop a fire: “[o]ur health, our lives and our prosperity, are intertwined in ways that make it entirely legitimate to enforce precautions against lethal disease — even upon objectors”.

The point is not really that Professor Vermeule is right (which I’m inclined to think he is, albeit not quite for the reasons he advances), and Mr. Hammer is wrong. It’s not even that their disagreement exposes the vacuity of the common good as a standard against which to measure policy (though it at least points in that direction). For my present purposes, it’s that the partisan version of the “common good” ideology, which Mr. Hammer and Ms. Roth represent, has next to nothing to do with its more cerebral namesake exemplified by Professor Vermeule’s comments to Ms Weiss. In its partisan incarnation, common good talk is nothing more than a fig-leaf meant to hide ― none too well, mind you ― the narcissism and cultural resentment that its promoters impute to a part of the electorate.

Author: Leonid Sirota

Law nerd. I teach public law and legal philosophy 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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