Posts tagged: originalism

Assess Common Good Constitutionalism With One Question: What Happens to Dissenters?

One of the remarkable things about Adrian Vermeule is that when he speaks, people listen. They even when, perhaps especially when, he shocks the moral conscience of his reader by rejecting traditional liberal pieties about the purpose of government. I endorse most of those liberal pieties, but liberals cannot approach those who dissent with mockery and scorn, which I’m seeing all over Twitter. So here I’d like to try to provide a sober assessment of Vermeule’s alternative to conservative originalism, common good constitutionalism (CGC). [I’ve assessed integralism here and here and here and here and here and here.]

1. What is Common Good Constitutionalism? What Makes It Unique?

Common good constitutionalism holds, roughly, that the constitution of the United States should be read such that it permits and even requires the state to promote the values emphasized by Catholic social thought, though in the article Vermuele does not put it this way. CGC is a kind of supra-Catholic integralism [where integralism can be understood as the view that the state is to promote the common good as understood by the Catholic Church and in tandem with the Catholic Church]. CGC leaves the content of the common good a bit more open than integralism does, but CGC is clearly meant to pave the way for integralism.

CGC is simple. It combines a substantive Catholic conception of the common good, a political perfectionist principle that society should be organized so as to promote the common good, and a principle of constitutional interpretation. The interpretive principle is that the constitution should be reinterpreted so as to gradually conform the state to promote the common good, that is, to become a kind of perfectionist state.

Many on the left adopt a left-wing version of CGC, where the common good is given by, say, the moral system advanced by John Stuart Mill, which prizes autonomy and collective flourishing. There are plenty of left-wing CG constitutionalists; they just don’t think of themselves in this way. Where Vermeule is unique is in boldly claiming that Catholicism provides the best account of the common good.

2. What Happens to Dissenters Under Common Good Constitutionalism?

To assess CGC, we must first ask what happens to people who reasonably disagree with the account of the common good that Vermeule endorses. It is unclear how dissenters will be prevented from disrupting the common good constitution, though Vermeule does endorse some pretty dramatic means of establishing Catholic integralism. And you can see similar ideas in the piece. Vermeule wants to co-opt the power of the administrative state to serve the common good rather than limiting that power. So he is prepared to use rather heavy-handed means to establish the common good, which presumably required the suppression of dissenting voices where necessary to ensure that the state can successfully promote the common good. This includes, I think, considerable restrictions on freedom of speech, freedom of the press, and most importantly on freedom of religion. Any religious or secular organization that has an opposing view of the common good, and is a genuine threat to state power must be monitored and controlled before it can metastasize.

Vermeule does not address the treatment of dissenters in the piece. But once we ask the question, we can challenge CGC with what I shall call the dissenter trilemma. 

3. The Dissenter Trilemma

Catholic integralist states were prepared to use severe legal means to preserve the common good, from fines and imprisonment, to execution, and even burning heretics alive. In a way, this is all rather cooly rational. The human good is on the line, perhaps even the eternal good, and so threats to the good must be contained however possible. To be fair to Vermeule, however, he would surely use the minimum amount of harm necessary to protect the common good, and he obviously thinks that there are some ways of protecting the common good that are intrinsically evil.

For this reason, I will assume that Vermeule adopts a limiting principle that forbids certain methods of securing the common good even if those methods were known to succeed. Vermeule will not permit the killing of the innocent to realize the common good, or any means that requires people to sin.

The dissenter trilemma arises when we ask what the limiting principle is. The first question is this: is the limiting principle is adequately just? That is, does the principle forbid means of realizing the common good that the vast majority of reflective persons agree are unjust? For instance, does the limiting principle permit burning heretics alive? It is our settled considered judgment that no one should be burned alive for any reason. Similarly, I think nearly everyone, including theologically orthodox Catholic intellectuals, will think that executing people for heresy is unjust.

The second question follows from the first: assuming the limiting principle is adequately just, what relationship does it bear to the common good? In particular, is the limiting principle an external constraint on the common good or a proper part of it?

This leaves us with three options.

A. The limiting principle is inadequately just.

B. The (adequately just) limiting principle is external to the common good – an independent moral principle that limits how the common good may be pursued.

C. The (adequately just) limiting principle is internal to the common good – the common good fails to be the common good when the principle is violated.

Here are the problems with each horn of the trilemma.

On (A). If the limiting principle permits extreme acts of violence like burning heretics alive, then CGC will violate very deep considered judgments about justice. It seems unjust to imprison or execute people who dissent from the common good, even if the dissenters may lead others into deep moral confusion. This is a severe demerit for CGC, and is probably sufficient reason all by itself to reject CGC. Perhaps a few integralists are willing to take extreme measures, but the vast majority of people who might adopt CGC will be unsympathetic, to put it mildly.

On (B). If the limiting principle is adequately just, but operates as a constraint on the common good, as a principle of respect for rights might, then we don’t really have CGC. We have a common good + rights constitutionalism. But the whole point of CGC is that the common good is the master normative concept for how the constitution should be interpreted and applied. If we include an additional principle, we’ve violated the spirit of CGC.

On (C). If the limiting principle is adequately just and does not constrain the common good, then it must be internal to the common good, specifically by helping to determine what counts as the common good. If that is correct, we don’t know what CGC comes to because the proper understanding of the common good involves an appeal to a deeper principle. My hunch is that the limiting principle must appeal to the dignity of the human person. For instance, a society does not realize the common good if it sacrifices the one for the many because the individual has God-given dignity. And indeed, I think this is how modern Catholic theologians often think about how the dignity of the person and the common good are related: respect for the dignity of the person is a proper part of the common good.

But now one wants to know whether the dignity of the person grounds other rights. Contra Vermeule, most Catholic theologians think the common good requires respect for a robust right of religious freedom, including for baptized persons. In that case, reading the constitution so as to allow for violations of religious freedom would mean that the constitution can no longer be understood as advancing the common good, because respecting the right of religious freedom is part of the common good.

And unhappily for Vermeule, we’re now engaged in a thoroughly modern rights discourse that he wants to supplant.

4. Resisting the Dissenter Trilemma and the Originalist’s Reply

The best way out of the dissenter trilemma, in my view, is to adopts a theory of rights that includes a right to, say, nutrition and basic healthcare, but not a right to choose one’s own religion or to be free from state interference if one fails to contribute to the common good in other respects. This will involve an appeal to a theory of personal virtue, but in Catholic social thought, you can’t formulate a complete theory of virtue for the individual without attending to the person’s social context and the good of the community as a whole. Unfortunately, that means the best way out of the dissenter trilemma is to formulate a theory of rights by appealing to … the common good.

But now we have a difficult circularity to resolve, and I don’t know how Vermeule can resolve it. That’s not to say there’s no resolution; I’m sure Catholic theologians have tons of stuff on how the common good and rights are compatible and flesh out each others’ ambiguities. But I don’t know the tradition well enough to guess where Vermeule would fall. But I suspect this will be tricky business for him because most Catholics who theorize on the matter think the dignity of the person entails rights that Vermeule rejects.

In light of all this, here’s how originalists should respond to Vermeule. Yes, the common good is important, but the dignity of the person is a proper part of the common good, and the dignity of the person grounds extensive rights against state interference. The goal of originalism is to read the constitution in such a way as to limit government to protect those extensive basic rights. In this way originalism is a kind of common good constitutionalism because it protects proper parts of the common good: basic natural rights.