The Constitution And The Common Good

In a recent interview with National Review’s Dan McLaughlin, Supreme Court Justice Amy Coney Barrett brought up growing support on the Right for “common good Constitutionalism.”

Having never heard that phrase, I took a quick dive.

The first giveaway that I wouldn’t like it (well, after the sinister feel of the name itself) was its origin: Harvard. And, sure enough, I don’t.

Common good Constitutionalism posits that individual rights should be subordinate to, you guessed it, the “common good,” i.e. the collective or the community. That the path to this is via strong and active government, including the legislating of morality (ding ding ding! Social conservatives rejoice!), and that judges are supposed to go beyond interpreting what the Legislature wrote in favor of applying their own wisdom.

As its godfather, Harvard Law professor Adrian Vermeule, explains:

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.

Spoken like a true “for your own good” tyrant. And a delusional one at that. It relies on the wisdom of the ruling class, wisdom that since time immemorial has been the rare exception rather than the norm.

This appears to be a repackaging of “living Constitution” progressivism for the family values crowd, and the fact that it has gained enough traction for a Justice to mention it speaks poorly for the conservative movement in America. Which we knew already, based on the mere lip service paid to runaway spending and the ascendance of nativist populism (aka “MAGA”) in the GOP.

When the Constitution, which is all about protecting the rights of the individual against the tyranny of the majority, is supplanted by a “smart people deciding right and wrong,” the fundamental premise of limited government goes out the window.

When the Constitution’s guardrails, fences, and walls are torn down, then anything goes.

These and more are the arguments in favor of originalism/textualism over the Left’s desire to treat the Constitution as a soft guideline that evolves (without actual alteration) with the moods of the judiciary.

When the Right joins the Left in abandoning the primacy of the individual in America, a descent into the “soft tyranny” Europeans live under is not far behind.

Time to again trot out C.S. Lewis’s warning:

Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.

The embrace of “common good Conservatism” by some conservatives, on top of all Trump’s overreaches, is another reason I scoff at those who think that libertarians are just a subset of the Right that want to live libertine lifestyles. The divide between today’s Right and the classical liberal principles at the heart of the Constitution and the foundation of libertarianism is getting bigger every day.

Unfortunately, I fully expect that the “do-gooders” and utilitarians on the Right will not take my words as warning, but rather as affirmation that they hold moral ascendance over those of us who insist on principled limits on what politicians and judges can do.