In America, officers pursue the common good by maintaining faith with the Constitution’s original meaning. No Dworkinian interpretivism necessary.
Much To Spew About Nothing
The 2016 populist uprising against establishment conservatism generated an important shift in scholarly discourse on the conservative movement—a shift from whether the movement is succeeding to why it has failed. As a result of this shift, a new scholarly industry has emerged around the following question: Why has the conservative movement—despite its institutional growth and the Republican Party’s electoral success—managed to conserve so little of the American way of life?
Two scholars in particular—Adrian Vermeule and Yoram Hazony—have made new careers out of this question. Before the 2016 shift, both men were accomplished thinkers in their respective fields, but neither played a significant role in conservative discourse: Vermeule (a Harvard Law School professor) focused on executive power and administrative law, and Hazony (president of the Herzl Institute) wrote principally on Israel and Zionism.
Over the last several years, however, Vermeule and Hazony have become significant—and arguably the most significant—public intellectuals in the so-called New Right, with Vermeule leading the conservative movement against originalism and Hazony heading the controversial National Conservatism conference. Their most recent books—Vermeule’s Common Good Constitutionalism and Hazony’s Conservatism: A Rediscovery, published within just a few months of each other—represent their most sustained search for a solution to the failures of American conservatism.
Both books have been reviewed in Law & Liberty symposia (one of which I participated in), so I will not be analyzing the books in depth here. Instead, I will be discussing how much these works have in common, both in terms of the problems they diagnose and the solutions they offer.
The National Common Good
On the surface, Vermeule and Hazony have almost nothing in common. Vermeule is a recent Catholic convert, rejects any affiliation with political conservatism, and specializes in legal theory and administrative law. Hazony is an Israeli Orthodox Jew, has been an active participant in conservative politics, and is a political philosopher by training.
Nevertheless, their recent books offer strikingly similar explanations of what is causing American political and social dysfunction. For both authors, the problem stems from our commitments to individual rights and disaggregated governance in that these commitments work together in preventing us from making national policy on the basis of the “common good.”
Vermeule focuses his narrative on legal theory and constitutional interpretation, arguing that originalism (generally favored by the legal right) and living constitutionalism (generally favored by the legal left) are actually complementary. According to Vermeule, these two modes of constitutional interpretation share an emancipationist agenda in that they both treat individual rights as beyond communal concerns. Judges and scholars employing these modes therefore view individual rights as liberating the person from the constraints of family, faith, and even his or her own body. By contrast, Vermeule’s preferred approach, what he calls “common good constitutionalism,” conceptualizes rights as arising from within and as part of the community itself.
Hazony tells a slightly different story, pointing the finger at Enlightenment political philosophy. According to Hazony, the Enlightenment—with its focus on individual liberty, autonomous rationality, and government by consent—is inconsistent with human nature and the purpose of the nation-state. The purpose of a nation, in Hazony’s view, is not the protection of individual rights, as expressed in the Declaration of Independence, but the advancement of honor, loyalty, and cohesion among the nation’s various families and tribes.
While Vermeule’s and Hazony’s disparate scholarly backgrounds and religious beliefs lead to different narratives, their solutions are ultimately the same: Conservatives must embrace a powerful nation-state and harness this power for the purpose of restoring the traditional family structure, promoting social cohesion through a common national identity, and enforcing a religiously infused moral order. For both Vermeule and Hazony, the Constitution’s Preamble, with its broad purposive pronouncements, provides the blueprint for this national “common good” conservatism.
Vermeule and Hazony get a lot right. They are particularly astute in observing how a political system driven by abstractions, such as “equality” and “liberty,” will be unable to conserve the particular ways of life necessary to sustain an order. Both men seek a conservatism that is more communally oriented, historically rooted, and empirically grounded. For steering us in this direction, both men should be applauded.
They both fail, however, in getting us to this destination. Below, I will summarize how they fail, paying particular attention to Hazony’s argument, as his book presents a more general and ambitious project—that of discovering (or rediscovering) conservatism.
The Classical Legal Tradition: Communal Rights Without Community
A tremendous amount of controversy has surrounded Vermeule’s Common Good Constitutionalism. The work has been accused of endorsing totalitarianism, theocratic authoritarianism, and even fascism. But in all this controversy, the critics have neglected how much Vermeule’s proposed framework resembles our current regime.
Consider how Vermeule looks to the “classical legal tradition,” traceable to Roman law, as the basis for rejecting the distinctly American notion of dual sovereignty. According to Vermeule, sovereignty in the United States “was not created by the written Constitution of 1789, but arose even before the enactment of the Constitution, through translatio imperii—by transfer of sovereignty from the British Crown according to pre-existing general principles of international law, the ius gentium.” Likewise, Vermeule reduces American federalism to the Catholic concept of subsidiarity, which, as Vermeule writes, grants the national government the power “to intervene when other competencies cannot carry out their function in an overall scheme oriented to the common good.” Vermeule’s invocation of subsidiarity thus makes all our political conflicts potential federal questions, depending on how capably or wisely a state regulates the matter.
The upshot of Vermeule’s “common good constitutionalism” is that the states become mere municipalities, the federal government becomes part and parcel of a larger system of international law, and individual rights become confined by the interests expressed by this global “community.” This is, coincidentally, very much like the system we currently have. Indeed, the Supreme Court has functionally dismantled state sovereignty by inventing “obstacle preemption” out of the Supremacy Clause, the “Dormant Commerce Clause” out of Article I, and the “incorporation doctrine” out of the Fourteenth Amendment. The Court has likewise expanded some individual rights according to evolving international norms and at the same time confined other individual rights to standards of review in which imaginary collective interests like “diversity” control the inquiry.
For a constitutional theory that is treated as dangerously reactionary, common good constitutionalism is strikingly submissive to the status quo, ultimately justifying, albeit with Latin terms and Medieval references, what we have today—government by federal bureaucrats who are more attentive to global standards than to American traditions.
National Conservatism: Distorting the Founding
Hazony’s notion of community is slightly more modest than Vermeule’s, in that the relevant community for Hazony is not a global order but the nation-state. This, however, is not a serious constraint when the relevant nation-state is the United States—which, with its 330 million people of diverse religions and ancestries, does not resemble a community in any meaningful sense. As a result, Hazony’s nationalism ends up resembling Vermeule’s “common good constitutionalism” in justifying our current order.
Hazony’s depiction of the Founding—as a battle between the Federalists (whom he takes to be the progenitors of American conservatism) and the Anti-Federalists/Jeffersonian Republicans (whom he takes to be the progenitors of American progressivism)—plays a critical role in his argument for national conservatism. Hazony uses this scheme to explain the contemporary failures of American conservatism. According to Hazony, modern-day conservatives are essentially liberals because they are the heirs of Thomas Jefferson and the universalism he endorsed in the second sentence of the Declaration of Independence.
Hazony is not a constitutional theorist or historian, so perhaps he can be excused for simplistically treating the Declaration of Independence as a mere statement on universal reason and equality, while ignoring the Declaration’s bill of particulars and Jefferson’s reliance on the particular rights of the British Americans under English common law. What cannot be excused, however, is Hazony’s cheap and often times dishonest method of contrasting the Federalists and Anti-Federalists for the obvious purpose of appealing to modern-day prejudices so as to advance Hazony’s “national conservatism” political agenda.
For example, Hazony repeatedly reminds the reader that many of the Anti-Federalists and Jeffersonians were Southerners, and that many of the Federalists were Northerners, as though this geographic information is sufficient to tell us which side of the debate we should be on now. In the same vein, Hazony writes that the Federalists envisioned “America as an industrial and commercial republic” and therefore “looked forward to the decline of slavery and its eventual abolition.” Hazony contrasts these “good” Federalists with the “bad” Jeffersonian Republicans, who envisioned “agrarianism as opposed to an urban and commercial future” and therefore held that “the ideal citizen” was “the independent farmer” who “own[ed] slaves to work his fields.” What this entire discussion amounts to is a shallow “Democrats are the real racists” account of the Founding.
Hazony does not stop at race relations; he goes on to blame the Jeffersonians for just about every significant political and social problem in modern-day America. For example, he uses the Adams-Jefferson conflict over the Alien and Sedition Acts to accuse the Jeffersonians of supporting “a policy of open borders.” Hazony likewise attributes our declining religiosity in the 21st century to the “confederalist vision,” on the ground that confederalism’s “greatest spokesmen were Thomas Jefferson and Tom Paine,” two men who “regarded the American Revolution as having been fought not only against British monarchy and aristocracy, but more generally against Britain’s … established religion.”
But Thomas Paine, of course, was not a spokesperson for “confederalism,” and was not among the Anti-Federalists or the Jeffersonian Republicans. Nor were the Anti-Federalists opposed to religion, as illustrated poignantly in Patrick Henry’s effort to restore a religious establishment in Virginia. In fact, one of the primary Anti-Federalist objections to the 1787 Constitution was that it “was particularly dangerous to and tilted against religion” because it did not protect the various state establishments from federal incursion.
While Hazony generously and gratuitously imputes pernicious motivations to the Jeffersonians, he conversely excises such details in protecting the Federalists from such associations. For example, Hazony claims that the Federalists sought “to cultivate a tolerant Protestant nationalism,” noting in particular how “John Jay repeatedly defended his and America’s religious beliefs.” But Hazony does not disclose their religious intolerance—as when, in debating the 1777 New York State Constitution, Jay proposed a provision prohibiting Catholics from voting and owning property and proclaimed that “[w]e must erect a wall of brass around the country for the exclusion of Catholics.”
Hazony again excises important information when extolling the Federalists’ “nationalist immigration policy.” Hazony contends that, in response to the “policy of open borders” endorsed by the Jeffersonians, the Federalists favored restrictive “immigration policies and a long process of naturalization.” Hazony praises the Founding Era naturalization laws as reflecting the Federalists’ immigration policy, but he treats these naturalization laws as providing only durational requirements, conveniently omitting that they were also racial restrictions, extending only to “free white persons.”
Hazony is similarly deceptive in his treatment of John Jay’s Federalist 2, which, Hazony tells us, “rejects the concept of a ‘creedal nation’ bound by nothing other than reason and consent, of which Jefferson and Paine were the precursors.” Here, Hazony anachronistically blames Jefferson and Paine for our modern-day “universal nation” concept, which would rise to prominence nearly 200 years later with the neoconservative movement and its notion of American exceptionalism.
But Jay’s Federalist 2 had nothing to do with our modern-day concept of America being a creedal or proposition nation—which was an alien concept in the Founding Era. The essay was, instead, a response to the Anti-Federalists’ concern that the states were too different from one another to form a unified republican government. In response to this concern, Jay contended that the states already constituted a union because they formed “one united people,” in that Americans, regardless of state of origin, had five important things in common: they were “a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, [and] very similar in their manners and customs.”
Hazony not only pretends that Jay was rejecting the Jeffersonian view of a proposition nation, but Hazony then goes on to mispresent Jay’s account of nationhood. In Hazony’s account, “Jay describes a thick matrix of inherited language, values, and history, which those of foreign descent … could nevertheless choose to adopt.” Hazony conveniently omits the three stickiest features of Jay’s notion of national identity—ancestry, religion, and culture—features that those of foreign descent could not necessarily choose to adopt.
Hazony ends up implicitly adopting what he explicitly rejects. Hazony scoffs at the neoconservatives for believing that a nation could come down to a magical set of ideas, as though anyone who learns about the Declaration of Independence and George Washington is, presto, an American. No, becoming an American is much more complicated for Hazony. You also have to be one of the roughly 2 billion people in the world who watch Hollywood movies and speak English, too.
Neglecting the Prerequisites for Common Good Governance
Vermeule’s and Hazony’s distortion of the American tradition is not merely a question of academic intrigue. By distorting our past, they also avoid the hard work of wrestling with what would be necessary to restore the American constitutional order. Their prescriptions therefore come off as Astro-turfed, abstracted from the actual conditions of contemporary American life.
For example, Vermeule does not touch serious legal matters like “incorporation” under the Fourteenth Amendment (which essentially swallowed the 1787 Constitution) or the Civil Rights Revolution (which essentially swallowed the Fourteenth Amendment), but he is eager to discuss antiquated matters like the constitutional status of blasphemy laws.
Hazony expresses the same attraction for irrelevant ideas, such as how there should be a national policy supporting government-led prayer in public schools, a topic he returns to throughout his book (and even identifies as one of his top ten policy programs in his recent Statement of Principles). Hazony likewise lambastes the Supreme Court’s school prayer decisions, as though they were the direct outgrowths of Enlightenment abstractions, “modeled on the social-contract theories of Enlightenment rationalist philosophers.”
This obscures why school prayer remained pervasive throughout the United States for nearly 200 years and was repudiated only in post-war America. As documented in Bruce Dierenfield’s The Battle Over School Prayer, the Supreme Court’s school prayer decisions had little to do with the Enlightenment, Thomas Jefferson, or the Declaration of Independence. The decisions, instead, arose from actual human conflict—more particularly, the perceived need for the national government to manage the increasing diversity of America, resulting from the 20th-century waves of Catholic and Jewish immigrants. There could be no school prayer once there was no longer a Protestant America. And there will be no restoration of school prayer in this new America. Hazony’s solution, then, amounts to wishing we had another America.
Therein lies the rub: Vermeule and Hazony accept and often celebrate the changes that have made this new America—immigration, civil rights, centralization, urbanization, juridicization, etc.—but they propose solutions that could work only in the old America. And while Vermeule and Hazony ostentatiously shout out ideas with little to no currency in the real world—Down with originalism! Regulate blasphemy! Reinstate school prayer! Ban pornography!—they discreetly offer a regime that is almost identical in operation to what we have today.
In this sense, their arguments are perfectly tailored to this America—a culture in which shock value and mean tweets govern public discourse. And their provocation of the American Left, while submitting to its regime, makes them ideal public intellectuals for the incendiary but feckless 2016 populist uprising that propelled them to public prominence.