...Alternatively, in a formulation I prefer, one can imagine an illiberal legalism that
is not “conservative” at all, insofar as standard conservatism is
content to play defensively within the procedural rules of the liberal
order.
This
approach should take as its starting point substantive moral principles
that conduce to the common good, principles that officials (including,
but by no means limited to, judges) should read into the majestic
generalities and ambiguities of the written Constitution. These
principles include 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.
Such principles promote the common good and make for a just and
well-ordered society.
To be sure, some have attempted to ground an idea of the common good on an originalist understanding,
taking advantage of the natural-rights orientation of the founding era.
Yet that approach leaves originalism in ultimate control, hoping that
the original understanding will happen to be morally appealing. I am
talking about a different, more ambitious project, one that abandons the defensive crouch of
originalism and that refuses any longer to play within the terms set by
legal liberalism. Ronald Dworkin, the legal scholar and philosopher,
used to urge “moral readings of the Constitution.”Common-good
constitutionalism is methodologically Dworkinian, but advocates a very
different set of substantive moral commitments and priorities from
Dworkin’s, which were of a conventionally left-liberal bent.
Common-good
constitutionalism is not legal positivism, meaning that it is not
tethered to particular written instruments of civil law or the will of
the legislators who created them. Instead it draws upon an immemorial
tradition that includes, in addition to positive law, sources such as
the ius gentium—the
law of nations or the “general law” common to all civilized legal
systems—and principles of objective natural morality, including legal
morality in the sense used by the American legal theorist Lon Fuller: the inner logic that the activity of law should follow in order to function well as law.
Common-good
constitutionalism is also not legal liberalism or libertarianism. Its
main aim is certainly not to maximize individual autonomy or to minimize
the abuse of power (an incoherent goal in
any event), but instead to ensure that the ruler has the power needed
to rule well. A corollary is that to act outside or against inherent
norms of good rule is to act tyrannically, forfeiting the right to rule,
but the central aim of the constitutional order is to promote good
rule, not to “protect liberty” as an end in itself. Constraints on power
are good only derivatively, insofar as they contribute to the common
good; the emphasis should not be on liberty as an abstract object of
quasi-religious devotion, but on particular human liberties whose
protection is a duty of justice or prudence on the part of the ruler.
Finally,
unlike legal liberalism, common-good constitutionalism does not suffer
from a horror of political domination and hierarchy, because it sees
that law is parental, a wise teacher and an inculcator of good habits.
Just authority in rulers can be exercised 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.
Common-good constitutionalism draws inspiration from the early modern theory of ragion di stato—“reason of state,”
which, despite the connotations that have become attached to its name,
is not at all a tradition of unscrupulous machination. (Indeed, it was
formulated precisely to combat amoral technocratic visions of rule as the maximization of princely power.) Instead the ragion di stato tradition
elaborates a set of principles for the just exercise of authority.
Promoting a substantive vision of the good is, always and everywhere,
the proper function of rulers. Every act of public-regarding government
has been founded on such a vision; any contrary view is an illusion.
Liberal and libertarian constitutional decisions that claim to rule out
“morality” as a ground for public action are incoherent, even
fraudulent, for they rest on merely a particular account of morality, an
implausible account.
Given
that it is legitimate for rulers to pursue the common good,
constitutional law should elaborate subsidiary principles that make such
rule efficacious. Constitutional law must afford broad scope for rulers
to promote—as the ragion di stato put it, in a famous trinity of principles—peace, justice, and abundance. Today, we may add health and safety to
that list, in very much the same spirit. In a globalized world that
relates to the natural and biological environment in a deeply disordered
way, a just state is a state that has ample authority to protect 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. Because the ragion di stato is not ashamed of strong rule, does not see it as presumptively suspect in the way liberalism does, a further corollary is that authority and hierarchy are also principles of constitutionalism. Finally, and perhaps most important, just rule emphasizes solidarity and subsidiarity. Authority
is held in trust for and exercised on behalf of the community and the
subsidiary groups that make up a community, not for the benefit of
individuals taken one by one.
How,
if at all, are these principles to be grounded in the constitutional
text and in conventional legal sources? The sweeping generalities and
famous ambiguities of our Constitution, an old and in places obscure
document, afford ample space for substantive moral readings that promote
peace, justice, abundance, health, and safety, by means of just
authority, hierarchy, solidarity, and subsidiarity. The general-welfare
clause, which gives Congress “power to … provide for the common Defence
and general Welfare of the United States,” is an obvious place to ground
principles of common-good constitutionalism (despite a liberal tradition of reading the clause in a cramped fashion),
as is the Constitution’s preamble, with its references to general
welfare and domestic tranquility, to the perfection of the union, and to
justice. Constitutional words such as freedom and liberty need not be given libertarian readings; instead they can be read in light of a better conception of liberty as the natural human capacity to act in accordance with reasoned morality.
...The
Court’s jurisprudence on free speech, abortion, sexual liberties, and
related matters will prove vulnerable under a regime of common-good
constitutionalism. The 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” should be
not only rejected but stamped as abominable, beyond the realm of the
acceptable forever after. 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...
