Features January 2022
The fallacies of the common good
On changes in the American conservative movement.
Editors’ note: “Common-good conservatism: a debate” is a symposium organized by The New Criterion centered on this essay by Kim R. Holmes. The respondents are Ryan T. Anderson, Josh Hammer, Charles R. Kesler, Daniel J. Mahoney, James Piereson, Robert R. Reilly, and R. R. Reno, followed by concluding remarks from Mr. Holmes.
Anyone observing the evolution of conservative thought over the past few years could not have escaped a growing trend. Politicians, intellectuals, and think-tankers are questioning traditional American conservatism’s commitment to limited government, individual natural rights, and economic freedom. They are talking up the virtues of the common good in ways that call into question their commitments to liberty and freedom.
The philosophical questioning of the principles of the American founding is coming from two different factions within the Right. One involves the national conservatives. The other is from philosophers who wish to resurrect the moral organizing principles of natural law. Both reject the idea of “intrinsic” rights that is traditionally associated with the founding.
The fact that these critiques arise from the American Right is significant. American progressivism has long questioned the founding and tried to revise it to suit its purposes. Now it appears members of the Right are doing the same thing. Why? And what are the implications, not only for conservatism but for the American nation?
Of the two common-good schools of thought, the national conservatives are the more prominent. Intellectuals such as Yoram Hazony and Josh Hammer have developed a theory of American conservatism that is inspired by Edmund Burke. What is novel is not the reference to Burke per se—the conflict between Burke and John Locke has long been part of the debate on whether the founding was liberal or conservative. Rather, it is the linking of the Burkean argument to the tradition of nationalism that is new. Like Burke, the national conservatives believe a nation’s identity and government should be organized around its unique history, culture, and customs. Like modern nationalists, they believe national sovereignty is justified by the particular rights of peoples—all peoples in their unique ways—rather than by the universalist claims of legitimacy that often attend democratic institutions.
One of the most thorough expositions of the national-conservative viewpoint is found in an essay by Josh Hammer published in the Harvard Journal of Law and Public Policy. Hammer criticizes the doctrine of constitutional originalism and posits instead what he calls “common-good originalism.” His main conclusion is that the American founders were not really Lockean believers in intrinsic rights, but Burkeans who saw rights as instrumental or as means to an end. As he says:
It seems, rather, that the founders who drafted the Constitution viewed the protection of natural rights and the expansion of individual liberty less as intrinsic ends, and more as a means by which citizens could pursue a common good.
He operates under the assumption that
“conservatism,” as opposed to classical liberalism or libertarianism, is wary of “reason”-based claims of rationalist abstraction and is more empirically rooted in the historical customs, norms, and traditions of distinct communities, tribes, and nations.
For that reason, conservatism “rightly understood” is “more open to wielding state power” and, when need be, willing to “enforce our order” or even to “reward friends and punish enemies (within the confines of the rule of law).”
By choosing Burke as their inspiration, Hammer and Hazony apparently wish to avoid associating their philosophy with the identarian nationalism of the far Right.
Hammer is a fellow at The Edmund Burke Foundation, whose chairman is Hazony, one of the key founders of the national-conservative movement. By choosing Burke as their inspiration, Hammer and Hazony apparently wish to avoid associating their philosophy with the identarian nationalism of the far Right. Regardless of that intention, the national conservatives do share nationalism’s historical penchant for wanting to organize a strong state around a common organic culture, an idea developed into modern nationalism by the German philosophers Johann Gottlieb Fichte and Johann Gottfried Herder. By focusing on Burke, the national conservatives do avoid the extremes of blood-and-soil nationalism found in the identitarian movement, but by consciously choosing the term “nationalism,” they also invite scrutiny of their ideas based on that association.
The main problem with Hammer’s interpretation of the founding is that it is profoundly ahistorical. Put simply, the founders were not Burkeans. Yes, they welcomed Burke’s support for the American Revolution from his British Whig perspective, but it was John Locke who moved them philosophically more than Edmund Burke. Secondly, the founders shared Locke’s notion of natural rights being grounded in the universal claims of natural law. That is why Jefferson and the other founders believed rights were “unalienable.” That is why they were “equal.” Such rights were universal, and not particular to a certain people or custom—as they would have to be if they were Burkean or nationalistic. In fact, while Burke believed in the existence of natural rights, he did not particularly care for the abstract nature of, and the a priori reasoning behind, rights as envisioned by the American framers. In the end, he believed that both rights and state power should be limited to prevent tyranny, but he did not believe rights were intrinsic.
To conclude that the founders were not Lockean, as Hammer does, requires that we ignore the historical record. When the Declaration of Independence used Thomas Jefferson’s formulation of “unalienable” rights, which clearly implies that they are intrinsic as Locke understood them to be, he was not merely expressing his own opinion. He was advancing an idea that was approved unanimously (with only New York abstaining, largely for commercial reasons) by the Second Continental Congress. What is more, it was most likely John Adams, not Jefferson, who came up with the word “unalienable” instead of “inalienable.” Of all the founders, Adams was one of the most conservative, but even he embraced the notion of “unalienable” rights.
When James Madison said that conscience was “the most sacred of all property,” he was stating clearly that the civil government has a duty to protect the conscience of individuals.
It was not only Jefferson and Adams who thought this way. When James Madison said that conscience was “the most sacred of all property,” he was stating clearly that the civil government has a duty to protect the conscience of individuals. It was not up to the government to define what the limits of that conscience should be. As Adams reminds us, “A Constitution of Government once changed from Freedom, can never be restored. Liberty, once lost, is lost Forever.” He makes plain the fact that establishing liberty was a primary purpose of the new government. While it is true that Adams and Washington believed that America’s civil freedom could not flourish without religion, they saw those restraints operating largely in civil society, not from the fiats of government. They did not believe that religion should be established by the government.
The confusion that can be caused by ignoring this history may be seen in Hammer’s forced reinterpretation of the Preamble of the Constitution. Hammer concedes that the phrase “secure the Blessings of Liberty” in the Preamble comes close to the idea of intrinsic rights, but he asserts that “even here ‘Liberty’ is an instrumental means through which to attain the sole true substantive goal, the appurtenant ‘Blessings’ thereof. ”
This conclusion is illogical. If liberty is only “instrumental”—a mere means to an end—then why are the “Blessings thereof” understood as proceeding from liberty? Liberty clearly precedes the “blessings thereof.” That fact would appear to make liberty a great deal more “intrinsic” than its offshoots. Once you read in all the other evidence from the founders’ understanding of natural rights and liberty, the conclusion is inescapable. They believed that justice and the general welfare were not possible without liberty. It is the blessings that are contingent and dependent on liberty, and not the other way around.
The founders did have a strong notion of the common good, but they did not seek to reify it in government or to enforce it top-down on the social order. Indeed, the “more perfect Union” mentioned in the Preamble was a reference not to some idealized, powerfully unified state, but merely to a central government stronger than the almost fatally weak one established by the Articles of Confederation. It was a practical consideration, not a philosophical one: to revise Hammer’s formulation, an “instrumental” goal to ensure that the “Blessings of Liberty” would be more secure than they had been during the revolution. Whatever this union was, it certainly was not understood as a kind of Hegelian nation-state or the constitutional monarchy that Burke would ideally imagine.
Neither did the founders believe something they would have had to believe if they were truly nationalists, namely, that the ultimate legitimacy of the new constitutional government was determined solely in reference to its citizens. When Jefferson spoke of an “Empire of Liberty” being created in America, he understood that this new country would be an inspiration and example for others. The founders clearly believed they were striking a blow for liberty on behalf of everyone around the world, which is the opposite attitude from that of a nationalist.
It is true that America inherited many things from the British, especially customs and attitudes about the law. It is not true, however, that the founders were trying to replicate a British organic order that could have been imagined by Edmund Burke, who after all was a monarchist. Moreover, we should remember that the founders were living at a time that preceded the age of modern nationalism, which did not begin until the French Revolution. The modern versions of this creed, especially its blood-and-soil varieties, would have been foreign to them.
The other line of criticism of the intrinsic-rights philosophy of the founding comes from the opposite point of view, namely, from philosophers of natural law who, unlike nationalists, do believe in universalism. Contemporary thinkers such as Pierre Manent, Ryan T. Anderson, O. Carter Snead, Patrick J. Deneen, and Adrian Vermeule agree with the nationalists that the philosophy of intrinsic rights is wrongheaded, but they do so for entirely different reasons. They reject natural-rights philosophy because they believe it is at odds with the tenets, as they understand them, of natural law. They look for inspiration to Aristotle and Thomas Aquinas, not Edmund Burke. Following in the footsteps of the philosopher Alasdair MacIntyre, some of these philosophers reject not only the idea of American exceptionalism, but the whole notion of the nation-state as well, advocating instead for the establishment of a universal imperial polity existing in harmony with religion.
The founders very much believed in natural law. But theirs was a particular interpretation born in the Anglo-Scottish Enlightenment. It was influenced by the Protestant tradition of individual conscience, which was understood as an intrinsic right; it was not driven by the interpretations of natural law associated with Catholic social doctrines. Rather, it was the view of natural law and natural rights developed mainly by John Locke but also by other thinkers such as Montesquieu and, yes, even Thomas Hobbes. For Locke in particular, man possessed natural rights in the pre-state of nature, and civil government was formed to protect them.
For Locke in particular, man possessed natural rights in the pre-state of nature, and civil government was formed to protect them.
While the founders were aware of and even admired Aristotle, there is no evidence that they consciously modeled the American Constitution on any of his ideas or premises. They certainly did not use Aquinas as a model. The reasons for this are not hard to fathom. Aristotle did not believe that all people possessed the same natural rights for all times. Rather, believing that natural rights arose from the notion of justice, he posited that the polis must be structured in a way that prefers the rights of certain people over others. Aristotle in fact believed in a natural aristocracy that had the right to “rule” over others. Nothing could be more different from the proposition that “all men are created equal.”
As for Aquinas, most of the founders believed in divine law, as he did, which in some cases they equated with natural law, and they surely were sympathetic to Aquinas’s general notion that the master principle of natural law should be to do good and avoid evil. But they would have had little use for some of his other ideas, which would have seemed to them outdated and even tyrannical. His belief in the death penalty for “impenitent” heretics, for example, would have offended their belief in religious liberty. And while both Aristotle and Aquinas’s qualified support for slavery could have been used to endorse the American institution of slavery, there is no evidence that it was. In fact, Madison and others, slaveholders themselves, embarrassingly tried to keep philosophical claims about slavery out of the constitutional debate.
A shared theme among most of the new natural-law advocates of the common good is that John Locke is a serious problem. In their zeal to knock Locke off his pedestal as an intellectual father of the American Revolution, some of them go to great lengths to make him something he isn’t. To their minds, Locke was Hobbesian. He was an atheist, a “hedonist.” He is portrayed as a proto-libertarian who believes in the tyranny of the “atomistic” individual imposing his personal desires and wants on the rest of the people.
Such interpretations of Locke have been repeatedly debunked by scholars, and yet they are again today front and center in certain circles of conservatism. They are historically incorrect and in some cases are a willful distortion of his thought. Far from being Hobbesian, Locke posited his philosophy of natural rights as counter to Hobbes’s dystopian view. Locke’s philosophy of tolerance was based on a fear of Hobbes’s philosophy of religious absolutism. Moreover, as Joseph Loconte made amply clear in these pages (“The appropriation of Locke,” October 2021), Locke was a devout Christian who very much believed in divine law and, hence, in the natural law that was derived from it. Trying to read the ideas of John Rawls or Ronald Dworkin, two key neoliberal philosophers, back into Locke’s seventeenth-century concerns about religion and philosophy is ahistorical; it is the common error of “presentism” made by philosophers who bypass the historical record with their own preferred ideas.
Which brings me back to the founding. The founders very much had a notion of the common good, but it was not the one of Aristotle or Aquinas. Taking Locke’s view, Jefferson for example described the justice of natural rights in this way: “rightful liberty is unobstructed action according to our will within limits drawn around by the equal rights of others.” In so doing, Jefferson was echoing one of the most widely accepted offshoots of natural law—namely, the Golden Rule, which says to treat others as you would like others to treat you. The principle embraces the implicit equality not only of individuals but also of justice in the sense that all people should be treated equally before the law. Individual rights were indeed limited, but not by a means test of whether they served a predetermined common good or religious doctrine as decided by the aristocracy of the polis. Rather, rights were limited by whether they violated the rights of others, which the founders assumed would be a sufficient limit on liberties to guarantee the common good. It is true that in Jefferson’s hands such ideas are interpreted in Enlightenment terms, but this does not mean that he was a “hedonist” with no conception of the common good at all.
Put simply, according to the founders, you cannot have real justice without liberty. If you force people to believe what their conscience, religious or otherwise, impels them not to believe, you are not only exercising a tyranny over them, but you are also weakening the moral legitimacy of the actions they are forced to make. Embodied in each individual choice is the moral content of freedom, which Jefferson and the founders understood perfectly.
It should be clear by now that the questioning of the traditional view of the founding has a larger purpose. It is to undermine and ultimately overturn traditional American conservatism. Specifically in the crosshairs are the ideas of individual rights, civil liberties, limited government, constitutional originalism, judicial restraint, and economic freedom. These are the ideas that have defined American conservatism since the time of William F. Buckley Jr. and Ronald Reagan.
The challengers of traditional American conservatism pursue common intellectual projects despite their different philosophical roots. One is to define the traditional conservatism of limited government and liberty as a species of libertarianism. The second is to treat American progressivism as a kind of radical libertarianism.
It is simply incorrect that traditional conservatives are libertarians.
It is simply incorrect that traditional conservatives are libertarians. Conservatives of the mold cast by William F. Buckley Jr. and Ronald Reagan are social conservatives who also believe in the liberty of individual rights. Like the founders, they look to the social cohesiveness and discipline provided by religion and morality in civil society to restrain the potential extremes of political liberty that are always a risk in a free society. It is certainly true that today the balance between liberty and order has broken down in America. But the answer advanced by traditional conservatives is not to throttle freedom or individual rights by government, but to rebuild the broken structures and institutions of civil society and religion that once limited the extremes of liberalism, but which today are in some cases their primary enablers.
Nor is it true that postmodern progressivism is a species of libertarianism. Radical libertarians and progressives agree on the lgbtq movement and other social issues, but this is an alliance of convenience, not of conviction based on a shared philosophy of government. Do common-good conservatives really think radical libertarians, some of whom think that even national parks should be privatized, want to see the same all-powerful collectivist state imagined by Alexandria Ocasio-Cortez and Bernie Sanders? Put simply, progressives are collectivists while libertarians are individualists.
The philosophical mistake here is concluding that modern progressivism is really all about preserving absolute rights. It is not. The only rights progressives believe in are the ones they make up to suit their agenda of social justice. All other rights, especially natural ones, are to be trampled into the dust. Human beings are not all “atoms” or individuals with equally intrinsic rights, but unequal cogs in a hierarchy of social-justice groupings, to be managed by the state. Rights may be expressed individually, but they are enforced as a matter of group justice. Rights are not equal at all but reserved for special groups based on race, gender, and sexual preference. If you speak out against one of these preferred rights groups, you lose your rights to speak. Nothing could be further from the truth than to claim that progressives believe in everyone’s equal right to speak, believe, or simply be anything they want.
How did this malformed viewpoint come about? It is largely the result of a philosophical war conservatives have been waging for decades with John Rawls, Ronald Dworkin, and other neoliberal philosophers. But here is the problem: Rawls and Dworkin failed. The liberalism we have today is not the neo-liberalism they had in mind. Yes, their ideas about secular relativism prevail, but their brand of neo-liberalism has been overtaken by events and absorbed into a new collectivist ideology of identity politics.
As I argued in my book The Closing of the Liberal Mind (2016), the postmodern progressivism of today owes its ideology not to the neoliberalism of Rawls, but to cultural Marxism, radical Freudianism, existentialism, deconstructionism, and critical legal and race theories. These are all intellectual projects of the neo-Marxist Left, not the Lockean Right. In other words, the intellectual forefathers of radical identity politics and critical theories are not John Rawls or Ronald Dworkin, but Friedrich Nietzsche, Martin Heidegger, Antonio Gramsci, Herbert Marcuse, Max Horkheimer, Theodor Adorno, Jacques Derrida, Jean-François Lyotard, Derek Bell, Richard Delgado, Duncan Kennedy, and Catherine MacKinnon, among others.
Why the tendency among common-good thinkers to overlook this intellectual history? Because it suits their philosophical and political projects. Doing so implicates traditional conservatives as sellouts. At the same time, it preserves the big-state solution required by their conception of the common good. Beating up on neo-Marxist collectivists would necessarily raise the specter of state tyranny, and this is something they apparently do not want to talk about. This attitude explains why some of the common-good ideologists are so vitriolic in their denunciations of other conservatives. The traditionalist’s stand against collectivism and statism are as much an ideological threat to their project as the radical expressiveness of the far Left is.
Which brings me to the Catholic integralists, the most militant of the new natural-law advocates. Believing that “rendering [to] God true worship is essential to [the] common good” and that “political authority therefore has the duty of recognizing and promoting true religion,” the integralists include the Cistercian Edmund Waldstein (quoted here), Patrick J. Deneen (Notre Dame), Gladden Pappin (University of Dallas), and Adrian Vermeule (Harvard). The movement enjoys the support of the editors of the magazine First Things, and, while most common-good ideologists don’t go as far as they do with their arguments, the integralists are given rather wide berth in the movement.
Two of the most active members of the movement are Deneen and Vermeule. Both are critical of the founding’s “liberalism,” but it is Deneen who has written the most on the founding itself. Deneen makes no attempt to pretend that the founders have been misunderstood. Rather, he simply argues—correctly—that they did view natural rights as intrinsic. But for him that is precisely the problem. According to Deneen, the fatal flaw of America is that liberalism was baked into its constitutional order, and because of that, it must now be overturned to institute a better order after the common good.
Deneen at least has the virtue of consistency. Unlike critics who pretend that traditional American conservatives have misunderstood the framers of the Constitution, Deneen freely admits the founders were Lockean. He disapproves of Locke as much as the nationalists do, but he and the others don’t care to save the founders from this charge by pretending they are something they are not.
Deneen’s challenge to the founding must be understood against a historical backdrop. He is directly challenging the consensus among Catholics that they should make their peace with the American established order. Largely as a result of the work of the Jesuit theologian John Courtney Murray, most American Catholics had put aside their qualms about the separation of church and state and made their peace with America’s founding. Murray insisted that Catholics could embrace religious freedom as practiced in the United States without forfeiting the Catholic Church’s claim to be the one true church.
Deneen and other objectors to the founding are challenging the Murray consensus. Michael Baxter, for example, a DePaul University professor writing in America: The Jesuit Review in 2013, argued that Murray’s “Catholic version of American exceptionalism blinded him to the danger of Catholics being absorbed into U.S. political culture.” As a result, “Murray got the story of American Catholics wrong. The United States is not unique among modern states.” The implication is the American order is fundamentally flawed. Baxter even goes so far as to hope that “providence will bless us with a revolution” to change this order.
It is unusual for an American who claims to be a conservative to challenge the founding, to be sure. But it is not unusual at all for a progressive to do it. Surely the motives and philosophies of Catholics and progressives are different, but it must be noted that the integralists are plowing ground already well tilled by American progressives. For example, in Nature’s God: The Heretical Origins of the American Republic (2014), the philosopher Matthew Stewart argued that the founders were indeed the radicals Deneen imagines them to be. They were atheistic deists who channeled the more radical elements of the Enlightenment into the American Constitution.
The question arises: why are the integralists so eager to agree with a progressive interpretation of the founding?
Because it serves the larger purpose of establishing the statist ideology required, in their views, by a common-good philosophy. It is no accident that Adrian Vermeule co-wrote a book, Law and Leviathan: Redeeming the Administrative State (2020), with the progressive Cass Sunstein. Even though they share different political philosophies, both Vermeule and Sunstein want to see the administrative state “redeemed” by an emphasis on the “morality” of administrative law. They may disagree on specific social doctrines, but they appear to agree that individual rights should not stand in the way of the state administering a public “morality” as they see it.
What could go wrong? A political order that treats public morality as an administrative matter is fraught with dangers. Such a system will practically guarantee that government bureaucrats and judges become powers unto themselves in deciding matters of rights and morality. It would only enhance the insularity of federal bureaucracies and courts that already routinely ignore the law and the will of elected officials. Pushed to extremes, it would create a “Leviathan” state that tramples on people’s natural rights. Once you give up on inalienable rights and turn morality into an administrative legal matter interpreted by elites, you have left democracy and an independent civil society behind.
Once you give up on inalienable rights and turn morality into an administrative legal matter interpreted by elites, you have left democracy and an independent civil society behind.
I don’t believe that most of the advocates of the common good today are ready for such extremism. The authoritarianism may be logically implicit in some of their ideas, but it is not inevitable. Most believers in the common-good ideology are merely looking for a muscular response to the successes of progressivism. This is understandable. But their mistake is resurrecting, creating, and tolerating illiberal views that will backfire on conservatives. These views will not only embolden an already powerful central government to intrude on their rights, but also aid and abet the war on traditional American culture waged now for decades by progressive elites.
Put simply, the more successful the current common-good movement is, the more it will erode one of the key pillars of American conservative thought: the idea of liberty. The biggest danger is not that America will evolve into national or imperial socialism, but that statist arguments from conservatives will end up reinforcing similar arguments made by progressives. Politics would devolve into a bidding war on which side, the Right or the Left, can buy the most votes with government handouts, win the most battles in the courts over defending “their” version of free speech, control the courts and administrative elites, or get to define what industrial and administrative policies mean. In that battle, I would put my money on the political masters of collectivism, the progressives, because that is their raison d’être.
Because of which, therefore, I pose this question to conservatives: if traditional conservatism dies, who will stand up to the extreme Left who will surely use state power to come for your rights and liberties? You may not be able to count on the common-good ideologists, because many of them are as skeptical of freedom and rights as the progressives are. Moreover, the common-good movement appears to bear no particular philosophical grudge against the idea of collectivism per se. Quo vadis then, conservatives?
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This article originally appeared in The New Criterion, Volume 40 Number 5, on page 13
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