A note to our readers: This edition of the French Press went to paying members on Thursday. It’s an important contribution to an ongoing conversation within the conservative movement about the role of government in our lives. We wanted you to have a chance to read it, too, so here it is. Thank you for reading.
Individual liberty is indispensable to the common good of a permanently pluralistic nation.
Welcome to a coronavirus-free newsletter. I’m going to take a break from grim news to focus on something else entirely, a defense of the “common good” of the American founding. The immediate cause for this defense is an extended essay in The Atlantic by Harvard Law professor Adrian Vermeule called “Beyond Originalism.” Vermeule argues that conservative judges should reject originalism in favor of Christian authoritarian jurisprudence. And if you think I’m exaggerating the authoritarianism he embraces, feast your eyes on passages like this:
This is not the occasion to offer a bill of particulars about how constitutional law might change under this approach, but a few broad strokes can be sketched. The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. ... So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.
If you didn’t follow 2019’s heated debate about the future of conservatism, Vermeule’s essay reads as if it came from the planet Mars. What is he talking about? Do “conservatives” actually embrace pure authoritarianism? Yes, in fact, some do. Not many. But some. And while Vermeule’s actual constituency can likely fit in a phone booth, he’s articulating an extreme view of an increasingly held position on the right that classical liberalism itself is failing American society.
According to this argument, by prioritizing individual liberty classical liberalism contributes to the atomization and excessive individualism of American society, stands as an obstacle to policies that advance the “common good,” and is at least in part responsible for a host of American cultural and political maladies. And what is the answer? Increased political power in the hands of a righteous state. After all, the “common good” must trump the individual interest. And that means, by necessity, originalism has to go. After all, originalism—by its very nature—takes the words of the Constitution, including its majestic statements in favor of individual rights and its profound limits on federal power, very seriously. Originalism (in Vermeule’s formulation) was useful only so long as it stopped progressive overreach. The instant it blocks right-wing Christian authoritarianism it should be discarded. Instead, the reactionary sovereign must rule.
The practical problems with this argument are blindingly obvious. (Why do its proponents believe they’ll gain and maintain power? What are the “common good” policies that will so obviously improve American culture? How will they make sure their authoritarian rule remains benevolent?), but there is also a problem with its fundamental conceptual framework. The fight isn’t between the “common good” on one hand and atomistic individualism on the other, but between competing visions of the common good. Only one of them is up to the task of governing America’s pluralistic democracy.
For example, the defense of individual rights—in particular fundamental freedoms such as free exercise of religion, free speech, due process, and freedoms from cruel and unusual punishment—is one of the most powerful instruments of communal or collective well-being ever designed by the mind of man. In the famous words of Frederick Douglass, the right of free speech is the “great moral renovator of society and government.”
Moreover, rather than reinforcing atomistic individualism, the defense of liberty has helped bind together one of the most religiously, ethnically, and ideologically diverse nations in the history of the world. Why? As I argued in Time recently, because our liberties are interlocking and interdependent:
I’m politically conservative, but I’m also a civil libertarian. In plain terms, that means I’ve dedicated a large segment of my career to defending the civil liberties of people who strongly disagree with my politics. And in that career—which has included defending people of different faiths, different cultures, different sexual orientations and different ethnicities—I’ve discovered that a shared defense of civil liberties ties us together in both fellowship and interdependence.
The fellowship can be easy to see. Defending the rights of others creates a tangible bond of friendship and understanding. Conversely, it is difficult for liberty to survive enmity. America’s darkest days have tied together dehumanization and oppression. It has denied liberty to those men and women it despised. But the defense of liberty itself creates a lasting communal bond.
Legally, the principle is simple—when I win, you win. A defense of Christian religious liberty is also a defense of Muslim freedom. A defense of due process for the most despised criminal defendant protects the innocent man next on the docket.
But to the new authoritarians, liberty is only useful when it yields outcomes they like. That’s the genesis of Sohrab Ahmari’s willingness to throw out decades worth of constitutional case law that protects the rights of millions people of faith to access public facilities on a viewpoint-neutral basis just so the state can prevent a tiny number of drag queens from accessing those same facilities and enjoying those same rights.
And what preserves Christian access when liberty is tossed aside? Raw political power. And how is that power attained and maintained indefinitely so that Christians don’t face a wave of retaliation at the hands of the state? The right-wing authoritarians cannot say.
In reality, the period when the United States most abandoned the common good were the days before we extended the blessings of liberty to all our nation’s people. Where was the true common good before our long-delayed “new birth of freedom”? Rather, we systematically and comprehensively denied the “privileges or immunities” of American citizenship to America’s most marginalized communities. And how did we do it? Through the strong hand of state power.
Originalism frustrates the authoritarian because it preserves the essential structure of the American founding. The Founders wrote a constitution that was designed to promote (in part) the “general welfare” and then laid out in the words that followed the means, mechanisms, and limits of federal authority to act to pursue that welfare. Those limits are different for states and localities, but they recognize something that is critical to understanding the “common good” in the United States—our permanent pluralism. We will never be of one mind.
I can’t remember where I saw this on Twitter, but I’m grateful for a tweet that pointed me to the paragraph below about classical liberalism and its indispensable role in a pluralistic society. Here’s psychiatrist Scott Alexander, writing at Slate Star Codex:
People talk about “liberalism” as if it’s just another word for capitalism, or libertarianism, or vague center-left-Democratic Clintonism. Liberalism is none of these things. Liberalism is a technology for preventing civil war. It was forged in the fires of Hell—the horrors of the endless seventeenth century religious wars. For a hundred years, Europe tore itself apart in some of the most brutal ways imaginable—until finally, from the burning wreckage, we drew forth this amazing piece of alien machinery. A machine that, when tuned just right, lets people live together peacefully without doing the “kill people for being Protestant” thing. Popular historical strategies for dealing with differences have included: brutally enforced conformity, brutally efficient genocide, and making sure to keep the alien machine tuned really really carefully.
Alexander’s warning is made all the more poignant by the cold reality of American right-wing authoritarianism. As I noted before, the constituency for Vermeule’s Christian authoritarianism can fit in a phone booth. It’s the Trump supporters who fill stadiums. It’s the populists at CPAC who fill convention centers. Vermeule and his allies may long for Constantine. They’ll get Donald Trump Jr.
The ability to live together peacefully, the goal that George Washington articulated almost 50 times in letters and other writings through the prophet Micah’s poignant words—“Everyone will sit under their own vine and under their own fig tree, and no one will make them afraid”—is one of the most potent expressions of the common good in human history. We disrupt it at our extreme peril.
One last thing ...
I continue to be shocked at the Michael Jordan boosterism of my esteemed readers. One is forced to conclude that all too many of them turned off the NBA when Jordan famously pushed off Byron Russell to bury the series-winning jumper in the 1998 NBA Finals. They’ve missed more than a decade of unmatched greatness. So I’m re-upping my 2018 piece that made the definitive argument that LeBron James is the GOAT. It’s packed with data, including this forgotten gem featuring the legendary “Skeeter Hawk”:
LeBron is so famous for dragging journeymen teammates to the finals that The Ringer ran a delightful piece earlier today ranking “every teammate LeBron James has ever carried to the NBA Finals.” It’s a glorious list. I see you, Cedi Osman and Ante Zizic.
Jordan, by contrast, had underrated supporting casts his entire career. Consider the controlled experiment of the first season after his first retirement. His 1993 title team won 57 games and beat the Phoenix Suns in six games in the Finals. He retired to play baseball, and Phil Jackson ran out four of the five starters, replacing Jordan with .. drum roll please . . . Pete Meyers, he of the 4.8 points per game career scoring average. (Perhaps you remember him by his legendary nickname, “Skeeter Hawk.”) The Bulls won 55 games anyway, and lost a hard-fought, seven-game Eastern Conference semifinals series to the Knicks.
Now, I ask you, if you replace LeBron James with the modern equivalent of Skeeter Hawk, does his current Cavs team even make the playoffs?
Oh, and then there’s this:
Ladies and gentlemen of the jury, the prosecution rests.
Photo illustration by Joe Sohm/Visions of America/Universal Images Group/Getty Images.