Finding the Constitution’s Common Good – Heritage.org

finding-the-constitution’s-common-good-–-heritage.org

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Conservatives of all stripes, including the increasingly large number of former liberals who have been mugged by educational intolerance, critical race theory, and transgender ideology, should welcome a public conversation that is rooted in a politics and constitutionalism of the common good.

However much we may disagree about the content of the common good, any sane articulation of it will necessarily repudiate despotism. Bertrand de Jouvenel is strikingly clear in his observation that “radical individualism and despotism both share the same perverse premise: There can be no good held in common by human beings.”

And what is left of politics if we accept this “perverse premise”? Certainly not constitutionalism. Rather, we have the politics of will and force in the place of persuasion, consolidation in the place of dispersion of power, and retribution in the place of accountability.

The common good must contain the recognition that a political community preserves something that transcends individual self-assertion. We must be able to put words and deeds in common, to make them public, and to do so in a way that provides reasons for our countrymen to hang together, to give to the public order and to receive from it.

Of course, much of contemporary political theory dismisses or glides over this constitutional discourse, rooting sovereignty in an administrative class that doles out rights, equalities, and various autonomies centered on what this class values. In this, they fulfill a pathological liberalism that reduces political order to two densities: man and the state. In numerous sections of Democracy in America, Tocqueville stresses that this combination of autonomism and collectivism reduces liberty to an afterthought while making the soft despotism of an egalitarian state the norm to which we must conform.

A Malleable “Common Good”

Leading today’s renewed interest in the common good is what can only be described as an anti-constitutional discourse coming from the Left. The manifest illiberalisms of race, gender, zero-carbon environmentalism, and anti-growth economics have revealed that many American intellectuals, educators, corporations, and politicians have been captured by or are willing to parrot Marxist ideological forms. America in its major institutions is no longer immune from the worst tendencies of the Socialist Left. Diversity, equity, and inclusion programs permeate much of our government, corporate, and education bureaucracy, with objectives impossible to construct apart from Marxist identity groupthink. Indeed, DEI ideology is proclaimed loudly and dares anyone to say otherwise. To these ideological proclivities, this cohort joins the power of an administrative state that also operates extra-constitutionally, binding our actions outside of fundamental norms of separation of powers, even due process.

 Can We Overcome Progressive Left’s Constitution?

Soft despotism now includes more than federal bureaucrats armed with vaguely worded statutes to which they add their enforcement measures in manners both official and unofficial. The private sector, including “Big Tech,” increasingly attempts to polarize and isolate many conservatives who express un-Woke thoughts or contest the received wisdom about the plasticity of gender, among other potential offenses. Their quest for a common good is rooted in the notion of perpetual victimhood which can be alleviated, we are told, only by the universal repudiation of the heterosexual white male, his capitalism, his constitutional law, and overall society of ordered liberty that his version of American history established. As Ibram X. Kendi asserted, you’re either racist or an antiracist; you’re either with Kendi’s project to transform America into a racial socialist polity courtesy of a Federal Department of Antiracism or you’re with the racists.

Highlighting this despotic project can only take conservatives so far in defeating it. We must articulate what the American constitutional tradition serves. The common good of our constitutional order must be the animating principle of American conservatism, one that receives its better ordering through the actual purposes and structure of the Constitution. This is why many conservatives have expressed consternation about what has been termed “common good conservatism”: the principle, as it is often articulated, is as malleable as that of social justice and can be put to just as pernicious a use.

To take one example, Patrick Deneen penned a recent essay that helped us understand that the common good isn’t exactly nebulous or hard to define: it’s the goods that are most common to human persons residing within a political order. But then he argues that prayer is one of those goods, and that our American regime is at odds with this common good, thwarting—with its political, economic, and social life—the practice of prayer.

Deneen gives little detail about how it should be restored. If it’s a part of the political common good, then presumably state power is called for in its rehabilitation. Perhaps a reversal of the separationist Court decisions that sought to exclude prayer and religious symbols from public life would be a crucial step in making religion a full-fledged aspect of American life, no longer relegated to the privacy of a broom closet. Yet, I suspect Deneen wants more. To put it bluntly, prayer is simply not one of those things entrusted to the constitutional common good by the founding fathers, and it is not how we are constituted as one people. This does not take away the vital role of families and religious institutions to inculcate love of God and of the human soul under God, but this formative task was never something committed by We, the people to the federal government. However, that same federal government provides tremendous space for institutional religions to teach, preach, and form their members. They have all the vital freedom needed to live their religious lives and proclaim the goodness of prayer. The federal government poses no impediments in this regard.

The open-ended nature of Deneen’s claim illustrates precisely what is wrong with this conception of the common good: how it seems to collapse the distinction between state and civil society in pursuit of man as homo orans. Any discussion about the common good that fails to work it through the structure of the Constitution must be rejected. This is not rank positivism, but the recognition that freedom and virtue emerge through limitations on government power. This includes the freedom of religion that stands on its own without government persecution or favor.

A Constitutional Common Good

We need a prudent attempt to recover the better ordering of our constitutionalism and thus its common good through and with the symbols, purposes, and principles that we have agreed to as American citizens under this Constitution. Certain pieces of underbrush need to be cleared away first. Many conservatives affirm that the complete story of American constitutionalism is individual rights, liberties, and protection from state power. But an exclusive focus on equally protected individual rights tends to move our focus towards equality and autonomy as the ultimate goals of the American Republic. This is precisely the kind of liberalism that makes it impossible for us to think of ourselves as citizens, neighbors, parents, and members of religious communions, who have deeply relational dimensions in our human nature. And if equality is our pinnacle value, then why should we not be ruled by the Court or the administrative state? What real need is there for politics with its sharply competing notions about justice, right, welfare, etc.? The answers to all the big questions are already known and just need to be declared; dissenters can be increasingly marginalized.

Relatedly, many conservatives glide into the position that government, as such, is evil. They perceive “the state” as an independent phenomenon always aiming to do us in. Reasoning from this position ignores that power, as such, is not evil; when bound by a constitutional promise, it can be an instrument to effectuate the common good of human flourishing. We must sharpen our critique of the administrative state’s power and the use of judicial review to forge new “fundamental rights” precisely because these actions do depart from the constitutional promise that bounds the use of federal power.

But if every human association, including political association, has a common good, how is our republic’s common good effectuated? We need to remember who we are supposed to be as a constitutional people. We should return to the process that debated and approved the terms of the American Constitution in the Philadelphia Convention of 1787, a process upheld in the subsequent states’ ratification conventions. There, we read arguments about specific problems, powers, needs, and liberties, and those arguments moved from one place to another, driven by delegates who don’t necessarily try to dominate or cajole others into their camp, but who give reasons that might unite disparate actors from small states versus big states, for one example among others. The means then of voicing, articulating, and approximating our common good is, as Willmoore Kendall argued in his essay “How to Read Richard Weaver, Philosopher of ‘We the (Virtuous) People,’” to “share with the Founders of the American Republic the belief that the Republic’s destiny will in fact be decided by the discussion-process.”

We should, therefore, regard the Preamble’s fivefold ends of politics as where our federal government should aim within the limitations and divisions of its power. That Preamble is not limited or even defined by “equality” and “rights.” Our most basic theory is that “We the people” are the ones who “ordain and establish” this Constitution for the following objectives: to establish justice, to promote the general welfare, to secure the blessings of liberty for ourselves and our posterity. Kendall notes that the Preamble is where the Framers indicated what type of people we are and must remain for the life of the Republic:

…by speaking of “our” posterity [we] declare our intention to remain a “people,” with such and such “machinery” of government, to which “we” assign certain coercive functions, the necessity of whose performance “we” assert by assigning them to the government, to which, however, we do not assign certain other functions, not necessarily less necessary in our minds, and not necessarily less coercive, which “we” tacitly declare “our” intention to perform “ourselves,” i.e., in “our” capacity as a “people” (e.g., providing for the education of the young, building and supporting churches, growing “our” food, making arrangements for “our” transportation—all of which, and many others, we might have assigned to “our” government but did not).

Kendall reflects further that, apart from defense and civil peace—indispensable needs for any political order—the Preamble’s purposes establish the type of people we are, a people dedicated to “justice,” the “general welfare”, and “liberty.” Our dedication in the Preamble is really to both the powers delegated to government and to those withheld by the people for their development in civil society. But there is a missing premise here, Kendall observes. How are we to remain a constitutional people devoted to justice, the common good, and liberty? To achieve these ends will require a virtuous people, Kendall rightfully observes, but we are certainly not told how we do this.

Cultivating A Constitutional People

Can Publius help us? In certain limited respects, yes, Kendall notes. One crucial thing that must be achieved is the prevention of tyranny, “by which Publius means the use of government, by a majority of ‘we, the people,’ for effectuating measures ‘adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.’” Publius offers certain ways to guard against tyranny, but none is absolute: In Federalist 10, Publius instructs that we must be spread out, be diverse in our interests, and separate the machinery of government, but this still cannot prevent tyranny entirely. The only sure protection is for “we, the people” to be virtuous, devoted to justice, to the common good, to liberty, and to stopping tyranny. Kendall believes that Publius knows this, but is not forthcoming.

Kendall argues that a constitutional people like the Americans will only remain virtuous enough to maintain itself under a culture articulated and upheld by the institutions of civil society—through a “self-chosen,” “select minority.” The phrase is Ortega y Gasset’s, and it means those who assume responsibility for culture. Kendall cites Richard Weaver’s Visions of Order as a decisive contribution to what the American culture must uphold to remain a constitutional people. This cultural elite must teach the aims Publius sets forward of the constitutional morality that enables the government to work for the common good. They are educating citizens who are also more than citizens, men and women whose identity and ideology do not come from government.

This select minority does not educate for egalitarianism, but necessarily shows that a free and good society involves inevitable distinctions of rank and order according to the diversity of the faculties each person possesses. Moreover, Kendall notes that Weaver doesn’t think wealth or money should be the primary marker of this distinction. Americans must also value an education and a culture that upholds man as a being fitted to know the truth about himself. Man is not an animal that can be studied and predicted according to natural science. We are exceptions, beings of love and inquiry within an otherwise naturally ordered universe.

 What Would Happen if America Didn’t have a Constitution?

The cultural guardians must also foster a love for persuasion and public debate, lest we become the prey of charlatans because we will believe in any cynical ploy. Language, reason, and truth matter, so we build our youth with classical education, religious education, and education not reducible to progressive demands for ideology. There is also the cultivation of “historical memory” so that we know who we are, so that we do not become “madmen” staggering about with our wealth and power whilst traveling the road to ruin. Here, then, is the outline of a select minority and those it teaches operating within a constitutional order that is capable of debating, agreeing, and upholding a common good, along with justice and liberty, because it first knows what it’s about and believes in its purposes.

Our challenge is that we have let many things slide into misuse and misappropriation, creating a memory vacuum that the progressive clerisy is trying to fill with its vision of the common good. It will fail because it is built on an anticulture of grievance and ideological narrowness equating to ignorance. But there is little comfort in that knowledge.

If Kendall is right about a discussion-based Constitution, upheld by a culture that teaches us how to flourish in a life lived in freedom and for virtuous ends, then many things have to change. We begin to see why local communities matter and cannot be divested of their decision-making authority in education and politics. Here is where people shape their future together and hold one another accountable. One result of such a culture is that it enables us to forge a common good through elected representatives who are continuously in conversation with one another and with their represented communities. Many common good conservative types stress that this process has failed and a superior state power must perform this role. But they would only be inviting progressives to perform ideological indoctrination on an even greater scale.

Currently, however, we are on the opposite path, one that bears poisoned fruit daily. This path breeds a politics of deep resentment. And the evidence is that ideas and arguments never get from one place to another place, with settlements and compromises that endure. Our politics of ideological parties, ideological elections, overactive Presidents, and a federal judiciary that at times rules in unbounded fashion, leads to perpetual discord, to a politics of perpetual reactions.

The inclusion of “general welfare” in the Preamble surely means that the common good of the constituted people is one aim of the federal government. But this common good does not imply a Platonic good that is brought into the city by those who claim a monopoly on human flourishing. Rather, we have the opportunity through a limited government, one separated vertically and horizontally, to forge an unfolding and evolving standard through discussion and compromise of what Americans require of their government. The powers that have been assigned to government for that end are significant, but just as significant are the powers that we retain and have not committed to government. And it is here that we find the means by which we remain a virtuous people who can be self-governing. This comprehensive common good is the missing premise of our tradition and one we are always called to develop. 

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