Vermeule’s Gleeful Illiberal Legalism

 

Few have been brave enough to flesh out what the Ahmarist, or “anti-Frenchist,” vision of the common good should be. Some have said articulating specifics is beside the point, that Ahmarists’ refreshing achievement is unapologetically asserting a common good exists, even if they decline to say what, exactly, it is. And then, there are guys like Adrian Vermeule, writing in The Atlantic, brave enough, at least, to flesh out a vision of sorts. Vermeule calls it “common-good constitutionalism”, which he describes as “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.” When Vermeule writes,

[U]nlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, [emphasis added] 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…

it’s hard not to think of abusive priests who talk their victims – and perhaps even themselves – into believing victims should thank their abusers for lessons in authentic desire.

We should suffer from a horror of political domination. A hierarchy that doesn’t is ripe for abuse. No mere mortals are cut out to be perfect parents, even to flesh of their flesh, much less to subjects mostly strangers to them.

***

Mothers aren’t supposed to mention this, and conservatives, who regularly defend the good of punishment, aren’t supposed to admit this, but not all our instincts to punish children are wholesome ones.

Ideally, punishment is for discipline, and only for discipline. Discipline does not regard the punished as objects, but uses punishment to goad immature subjects into habits of maturity. When we punch a hole in a wall, or snap a vacuum cleaner wand clean in half (and I’ve done both since becoming a mom), the objects we break learn nothing. They merely serve as outlets for our frustration. Our children are people, not outlets. And yet… I’ve lost count of the times my frustration, not my childrens’ need for discipline, has sparked my instinct for punishment. I strive to control this spark, of course – not to avoid disciplining my children, but to ensure I give them discipline and not abuse. Still, I never would have guessed, before becoming a parent, how hard controlling it would be.

An all-good, all-loving God may wield parental authority that’s wholly benign, but parental authority in the hands of fallible mortals is not. It has a dark side, a side not to be trusted around too much power.

***

Susannah Black at Mere Orthodoxy defends Vermeule by qualifying,

[O]f course a false “common good” may be used as a rhetorical tool to support the abuse of individuals, their coercion for the good of some other person or group. But the true common good simply never can.

To which we may as well add that no true Scotsman ever does whatever it is that no true Scotsmen do.

Black elaborates,

There is in reality no competition between individual good and the good of the community: we are members of each other in reality… seeking to care for each person while, and by, caring for the community… This cuts, entirely, both ways: it is not good for a community if any member of it should be abused, unjustly ruled, exploited.

I believe in the Christian apocalyptic vision. I await a time-out-of-time when Christ will rule, and, with all subject to Him, be All in All. Contrary to COVID-19 headlines, though, the apocalypse is not now. Now we see in a mirror dimly. We do not see face to face. We do not see the true common good – and it’s arrogance to think we can.

We’re not wholly blind to true common good, of course. Still, we lack enough vision to be entrusted with great power over our fellow mortals. In Christ, who personifies reality, we are all members of each other and there is no competition between individual and community good. In worship, we come together for a foretaste of this reconciliation, as members of each other, without conflict. But political power isn’t worship, regimes aren’t the Messiah, and it’s reasonable to fear rulers – or would-be kingmakers – who seem to presume otherwise.

***

Matt McManus divides libertarians into two types, egalitarian and hierarchical. That is, McManus observes some people are libertarian because they believe people aren’t morally unequal enough to justify one dominating another, while others are libertarian because they believe people are morally unequal, and freedom (particularly economic freedom) gives the superior liberty to dominate. The latter respect autonomy so that the autonomy of the strong may flourish, untrammeled. The former respect autonomy even – perhaps especially – in the weak. The latter needn’t have a horror of domination. The former absolutely must. I am among the former, what Black would apparently call a “right liberal”.

Black contends that liberals, on the right or left, have “give[n] up on any non-liberal vision of government, any good communitarianism.” In this formulation, Black equates communitarianism with illiberalism, which puzzles me, since Black herself asserts, “There is in reality no competition between individual good and the good of the community.” If there is, in reality, no competition, then why would it be necessary to embrace illiberalism to achieve communitarianism? Why should it be impossible to respect both others’ individual autonomy and the bonds they share with their community? (Is it even possible to respect another’s autonomy if you have no respect for the bonds he shares with his community? Those bonds, after all, are his. They are not yours to dominate.)

That said, no inherent competition between individual and community good is necessary for fallible humans to treat them as rival goods. It’s obviously quite tempting for “let’s not scandalize the community” to become the excuse we use to ignore wrongs done to individuals within it. These wrongs may ultimately hurt the community, too, but there is a great deal of ruin in a community. Communities can spend a long time rotting from the inside out as abuse goes ignored in order to keep up appearances.

For this reason, Vermeule’s insouciant assertions that “strong rule in the interest of attaining the common good is entirely legitimate” and a common-good constitutionalism should not

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

are horrifying, not because we must judge the goodness of government solely by whether it minimizes abuse of its powers, but because they give rhetorical cover to strongmen who have no qualms about abusing power for the sake of a so-called “common good”.

Black, who intends to defend Vermeule, at least partially, against his critics by pleading,

One can disagree with Vermeule on other bases [than his favoring strong government]. Feel free to do so: on the basis of the belief there should be no coercion in religion, for example, as a substantive principle.

only adds to the horror, since such a plea admits Vermeule is perfectly fine with coercion which successfully masquerades as the one true faith.

***

Vermeule’s framing of common-good constitutionalism is not repugnant because it touts, in Black’s words, “The good of energy in the executive, of a wise ruler, and of well-exercised authority,” but because it delights in dismissing concerns that abuse of power is a problem, when all of human experience, from the great arcs of history, the meta-narrative of Christian salvation, down to the pettiest instincts flaring in our own hearts, tells us that it is.

I admire and respect a great many souls who oppose libertarianism or “right liberalism” in various ways. Many of them are fellow Christians, whose opposition comes from their Christian convictions. Some fear the social-justice left most of all. Some fear that economic-liberty advocacy is deluded to believe it advocates any sort of liberty at all, rather than just the tyranny of Mammon. What all these souls have in common, though, is genuine horror at abuse of power. I may worry, for example, that a guy like Rod Dreher is too naive about authoritarian impulses on the illiberal right, but I have no doubt Dreher is a soul viscerally horrified by abuse of power – and that matters. Vermeule? Not so much. For all I know, Vermeule may not delight in abuses of power himself, but he won’t go out of his way to remind the powerful that they shouldn’t.

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  1. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    But then you proceeded to say:

    Larry3435 (View Comment):
    Personally, I prefer limited government. Where there is a compelling need for collective action for the common good – sure, government should act. So everyone can legitimately be required to drive on the right side of the road. Or not steal or murder or rape. Sure. But on most things, government should let people make their own choices. Government is not your parent. It is not your mommy or your daddy. And it is not government’s job to inculcate you with whatever thoughts government believes are “wise” for you to think, and whatever habits government thinks are “good” for you to have. I don’t want Obama to be my mommy and my daddy. I don’t even want Trump to be my mommy and my daddy. Nobody is wise enough for that job.

    I’m not sure if you mean this as a policy preference or a constitutional argument.  As a policy preference, it is fine, but it’s also fine for others to disagree with you.  As a constitutional argument, government does not require a “compelling need” to take action, except in the areas of “fundamental rights” which you previously referenced.  Justice Scalia used to joke that his job would be easier if he just had a stamp that he could use saying “stupid but constitutional.”

    I disagree with your “mommy or daddy” argument, in general.  It may be a good rhetorical argument on specific issues — like the stupid soda ban — but it doesn’t work as a generalization.  I think that it is perfectly legitimate for government to regulate morality, unless the regulation runs afoul of a specific constitutional protection.  Absent a constitutional problem, the propriety of a regulation is decided through the political process.

    • #31
  2. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    Dennis A. Garcia (formerly Gai… (View Comment):
    What article did you read? He advocated an unbound bureaucratic state under an all powerful president and extolled the both as symbols of the nation and as tools for national purification. The mere formality of an election every four years would not rescue such a system from fascism, especially without the expressive and associational freedoms to make those elections free and meaningful.

    I don’t think that he advocated this.  Vermeule didn’t say anything about an “all powerful president” (at least not that I could find, upon re-reading the article to respond to your question).  If you have a specific quote, please let me know.

    He did write that his approach “will favor a powerful presidency ruling over a powerful bureaucracy.”  The Founders favored a powerful Presidency, I think — which is why they rejected ideas like an executive council or a prime minister selected by (and therefore subservient to) the legislature.  Vermeule doesn’t say anything suggesting that such a powerful President would disregard the laws passed by Congress.  To the contrary, I think that he is advocating that the President have power to enforce such laws.

    He advocated Congressional power, I think, when he wrote:

    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.

    Moreover, I don’t think that Vermeule remotely suggested that he would jettison First Amendment rights like freedom of speech and association.  Perhaps he would, but he did not say so.

    I think that many people are reading things into Vermeule’s article that are not there, and making criticisms that are unfair.

    I want to emphasize that I think that his central proposal — to abandon originalism in favor of his proposed “common-good constitutionalism” — is a bad idea.  But his point that government is permitted to legislate morality is a good one, unless such legislation runs afoul of a “fundamental right.”

    And this is the point, which I think is best answered by originalism.  What is a “fundamental right”?  A 64-ounce soda?  (No.)  Freedom of speech?  (Yes — but it does not necessarily extend to obscenity.)

    Some of the rights are specifically enumerated, but there’s the 10th Amendment, too.  Originalism roots “fundamental rights” in history and tradition, which I think is the correct place.

     

    • #32
  3. Midget Faded Rattlesnake Member
    Midget Faded Rattlesnake
    @Midge

    Jerry Giordano (Arizona Patrio… (View Comment):

    Dennis A. Garcia (formerly Gai… (View Comment):

    I had a discussion recently with a friend about Vermeule’s article. We both agreed that the word fascist isn’t to be thrown around lightly but honestly struggled to discern any definition which wouldn’t fit Vermeule’s philosophy. Considering the question now, the best answer I can think of is that while Mussolini believed that the church (and every other aspect of society) should be incorporated into society because the state represents the right, Vermeule believes that they should be integrated because the church is right. In effect though, that is a distinction without a practical difference.

    What article did you read? Where did he advocate a dictatorship?

    I did not like his proposal about a method of constitutional interpretation. But the idea of enforcing community standards of decency and morality isn’t fascism. It is American traditionalism, prior to the radicalism of the Warren Court and the 1960s. I don’t see how it is remotely fascist — unless you think that everything but extreme libertarianism is fascist.

    As @skipsul pointed out, Ahmari and Vermeule don’t express much interest in the often-humiliating work of building community standards from the ground up. Instead, they ahistorically gravitate toward a pastiche of historic standards that are, for many Americans (including many red-tribe voters), no longer part of a living tradition. When Skip calls their approach to tradition a cargo-cult approach (I’ve also heard it called a “museum” approach, mimicking a museum display of artifacts out of their historic context), Skip makes a good point.

    Matt McManus calls this “cargo cult”, “museum”, or pastiche approach to historic traditions “postmodern conservatism” – by which McManus means something quite different from what a guy, say, like Lawler meant by the term (something McManus himself acknowledges). Whether any of us believe postmodern theories (which are themselves often wrongly understood, though their wrong understanding is so politically powerful it can’t be dismissed simply for being technically incorrect), we all live in the postmodern condition – that is, we live post-modernism, with the knowledge that the grand narratives of modernism failed to succeed as promised (which is not an excuse to spurn, rather than cherish, their astonishing partial success, it’s just that their success was less than promised, and we all live with that broken promise).

    My own affection for the old things is more informed by aesthetic sensibilities than historic context. So it, too, is a pastiche. I believe aesthetic sense can point to underlying truth, and spur curiosity into a better understanding of historic context. So, I do not despise pastiche for itself. But even when pastiche prompts someone’s engagement with a living tradition (as I think it has in my own life – several traditions, I hope), it’s not the same as living tradition.

    When French points out that, whether the rest of us like it or not, some municipalities have developed local traditions so divergent from the rest of ours that they no longer consider drag-queen story hour obscene, French makes a good point: we cannot expect to successfully replace their local traditions with our own pastiche of a more “traditional morality” these locals evidently have no living connection to (else they themselves could have used their municipal power to keep drag-queen story hour out of their municipal buildings). Ahmari and Vermeule, by contrast, seem to think it’s possible – and desirable – to use state power to impose their own pastiche of traditional morality on the populace.

    Ahmari, to his credit, doesn’t take his logic much beyond an emotional appeal lamenting we’ve so lost touch with the greater arc of morality than even a pastiche – in some ways, a travesty – of this morality, perhaps forced on swathes of the populace with no living connection to it, is better than the living traditions many of us have left. I’m pessimistic enough that I, too, can imagine the hypothetical where what’s real has become so corrupt that replacing it – even against people’s will – with a travesty might be better. Vermeule, not to his credit, I’d maintain, goes beyond Ahmari’s lament, cheerfully endorsing the imposition of this historical travesty – that particular ahistorical pastiche of historic morals which is modern integralism – on everyone. Not, apparently, through “community standards of decency and morality”, either, which would be local custom. But through the massive apparatus of the state.

    Traditionalism turns out to be rather different from tradition. Obviously, that doesn’t, by itself, make traditionalism bad. But we shouldn’t mistake it for what it’s not.

    • #33
  4. Stina Inactive
    Stina
    @CM

    Midget Faded Rattlesnake (View Comment):
    Ahmari and Vermeule don’t express much interest in the often-humiliating work of building community standards from the ground up.

    Perhaps because our courts have made local community standards nearly impossible through their rulings.

    So the first step of even making it possible for local governments to reflect their constituents will is to curb the power of the courts, which absolutely does require large scale arguments.

    • #34
  5. Midget Faded Rattlesnake Member
    Midget Faded Rattlesnake
    @Midge

    Stina (View Comment):

    Midget Faded Rattlesnake (View Comment):
    Ahmari and Vermeule don’t express much interest in the often-humiliating work of building community standards from the ground up.

    Perhaps because our courts have made local community standards nearly impossible through their rulings.

    In my experience this is… less true… than many of us would like to suppose.

    For example, I admire Rod Dreher. Even when I furiously disagree with him. Among his many virtues, he is an honest man, and (for many understandable reasons) honestly finds it hard to believe that a local school system in a place like, say, Evanston, IL, isn’t simply foisting a PC sexual agenda on unwitting families.

    But if you knew Evanston, you’d also know that, while there must be some (perhaps even significant) appetite among local families to have less PC sex ed in the local schools, there’s also a lot of local support for having it. Indeed, Evanston being the kind of town that would support such a curriculum is a point of civic pride for many residents. The local support, even though it’s hardly total, is a big reason why Evanston’s curriculum, no matter what official law says, can get away with being so flagrant. So flagrant that it’s practically irresistible for traditionalists to point to as an example of “the courts” foisting something on “the locals”, even when that’s not the whole story on the ground.

    • #35
  6. Midget Faded Rattlesnake Member
    Midget Faded Rattlesnake
    @Midge

    Midget Faded Rattlesnake (View Comment):
    But if you knew Evanston, you’d also know that, while there must be some (perhaps even significant) appetite among local families to have less PC sex ed in the local schools, there’s also a lot of local support for having it.

    None of which is to say the local progressives supporting causes in their local community, even if they do exist in numbers to stand a fighting chance of winning fighting fair, will fight fair. Or that they won’t bring the big guns in on their side if they can. I know a little of how dirty suburban Chicagoland politics can get (one of my immediate family was threatened by one of Rahm Emmanuel’s family over a local dispute – the threat wasn’t just intimidating, but vicious and manipulative, really nasty stuff).

    But it’s also true that sex ed across the country is already a patchwork of state and local initiatives which can differ widely, and many parents, when push comes to shove, will end up in the mushy middle, awkwardly reconciling themselves to the sex-ed packages on offer in their region, since, when push comes to shove, they’ll put the safety of their own children over standing ideological ground.

    Left-leaning sources continually have the vapors over how much sex-ed in the US still is, for example, abstinence only, or “no promo homo”, because of state law, funding, or local custom, and how little is, as they say, “comprehensive”. Parents who do participate in choosing the sex-ed curriculum at a local level may be offered a choice between a few package deals, so that a program that offers something they really want (like “refusal training” – that is, teaching specific strategies for saying no to sexual advances – a useful skill, and one unfortunately not inborn in every confused young thing who intends to stay virtuous) comes with stuff they don’t want (like a choose-your-own-gender adventure) but which honestly seems less relevant to the average kid they probably have. There’s a lot of nobody getting exactly what they want involved, and of course it’s always tempting to think your side would have gotten what it wanted if only the fight was a fair one.

    • #36
  7. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    Midge, good comment #33.  I don’t entirely agree, however.

    I think that French is wrong about drag-queen story hour.  The main story was out of Houston, I think.  The State of Texas could control this by law, if there is a consensus against it in the state, as I suspect that there is.

    The more troubling point is the response by so many conservatives to any proposal to legislate traditional morality in some way, even when the details are not specified.  You called it “illiberal” and “authoritarian,” and other comments called if “fascist” and likened it to Stalinism or the Spanish Inquisition.

    I notice that the other side has no problem with legislating their morality despite local opposition, or even opposition at the state or federal level.  We’ve seen this on issues like same-sex marriage and the weird trans phenomenon.  Radical social positions are openly promoted by government at many levels.  I don’t see any reason that we can’t do the same, and provided that such policies are adopted through the channels of representative government and do not violate specific Constitutional limitations, I do not think that they are fascist or authoritarian or otherwise illiberal.

    Though I don’t like the term “illiberal” either, because it is quite vague.  Liberty is an important value, but I don’t think that it’s the only important value.  Like many other terms, I worry that the use of “illiberal” as an epithet tends to stifle reasonable consideration of the positive and negative consequences of a specific policy.

    I think that Ahmari’s key point is how strange it is to find people who call themselves conservatives — who even claim to be strong social conservatives, like French — yielding ground on these issues.  If liberty is always a trump card, then the result must be anarchy, I think.

    • #37
  8. Jerry Giordano (Arizona Patrio… Member
    Jerry Giordano (Arizona Patrio…
    @ArizonaPatriot

    Midge, as a follow-up, I have a specific example in the Romer v. Evans case (1996).  This was one of the major SCOTUS cases on the homosexuality issue.

    Some local governments in Colorado (Denver, Boulder, and Aspen) enacted anti-discrimination ordinances protecting homosexuals and bisexuals.  State voters amended the state constitution to prohibit the state or any political subdivision from granting protected status on the basis of sexual orientation.  This seems perfectly reasonable to me.  As one later commentator pointed out, the cities could presumably repeal their local ordinances, and all that happened here was that the voters statewide effectively repealed these ordinances.

    But a 6-3 SCOTUS majority held that the Colorado amendment was unconstitutional.  The opinion, in my view, was quite irrational.  It was the first pro-homosexuality decision from SCOTUS.

    Romer was later a major precedent cited for the invalidation of laws against homosexual sodomy in Lawrence v. Texas (2003), reversing the contrary decision in Bowers v. Hardwick just 17 years before (1986).

    Romer and Lawrence were 6-3 decisions, with Kennedy and O’Connor joining the Left-leaning Justices.

    I think that these decisions were a significant factor in swinging public opinion in favor of homosexuality.  This has been a very strange development, in my estimation.

    In 1998, Congress sought to impose a federalism limitation on the issue with the Defense of Marriage Act, which essentially allowed each state to adopt SSM if it wished, but provided that other states and the federal government need not recognize such unions.  This was invalidated in US v. Windsor (2013), also on quite dubious grounds by a 5-4 majority (Alito having replaced O’Connor).  This then led to Obergefell (2015), by the same 5-4 majority, imposing SSM nationwide.

    If you recall, the immediate aftermath of Obergefell was not an end to the strife, but an immediate campaign to require the adoption of anti-discrimination laws nationwide — even without a religious exception.  And then there is the whole weird trans thing.

    So I find the situation much more complex.  I think that it is perfectly legitimate for a larger political entity to impose state-wide or even nationwide rules.  There does seem to be a danger of permissive localities being the proverbial camel’s-nose-under-the-tent in such areas.

    I’ll probably tick off some of my friends here by raising the homosexuality issue again.  From having done so before, I know that many consider the “debate” to have been settled, which is also a weird opinion for a conservative to espouse, suggesting that policy is always a one-way ratchet.  Also, of course, there wasn’t really much of a “debate,” except in Anthony Kennedy’s head.

     

    • #38
  9. Larry3435 Inactive
    Larry3435
    @Larry3435

    Jerry Giordano (Arizona Patrio… (View Comment):
    I think that your arguments in comment #27 are inconsistent.

    Jerry, I am saying a couple of different things here, but I do not think they are inconsistent.  Let me break it down a bit.

    First, I do favor limited government.  It is my experience, and my reading of history, that most of what government tries to do results in more harm than good.  I see government as a necessary evil.  Therefore, in my world view, government ought to act only if there is a compelling case that the greater good is served by replacing individual liberty with collective action.  I understand that this is not how our Constitution has been interpreted, but it is the type of government I favor.  And in my defense, the Founders seem to have agreed with me.  Jefferson wrote that governments are formed to secure the liberties (or inalienable rights) of individual citizens – not to displace those rights with collective obligations.  On this point, it seems that you and I will have to agree to disagree.

    Second, on the Constitutional level, I am saying that the main function of a Constitution is to limit the reach of government and protect the rights of minorities from the tyranny of the majority.  At least as to the enumerated rights in the Bill of Rights, although I would have much preferred it if the Courts had taken the Ninth Amendment seriously, rather than mostly ignoring it.  (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”)  I think that’s what the Founders intended, but the Courts haven’t seen it my way.  So it is what it is.  In any event, as I read this Vermeule fellow’s notion of “common-good constitutionalism,” it doesn’t limit government in any material fashion, and thus it is not “constitutionalism” at all.

    Third, beyond my belief that most (not all) government action is at best ineffective, and at worst very harmful, there is one category of government action that I find especially despicable.  That is when the government uses it’s power to compel everyone to think the same way, believe the same things, and to “re-educate” citizens against their will.  When government sets out to do that, is when I start tossing around names like Stalin and Torquemada.  That is Big Brother stuff.  And, as I read him, that is exactly what Vermeule is supporting.  So yes, I do think he is a fascist – or at least supports fascist policies.  By the way, that is exactly what I find so hateful about the current American left.  That they want to re-educate the rest of us, against our will, and make us into their own idea of “right-thinking people.”  (When that fails, the next step is usually to kill all the wrong-thinking people.  So history teaches.)

     

    • #39
  10. Larry3435 Inactive
    Larry3435
    @Larry3435

    By the way, Jerry, let me mention that I do sort of agree with you about Romer.  As an example of legal reasoning, that case was pure idiocy.  Obviously, every state law limits the ability of political subdivisions to enact contradictory laws, just as every federal law limits the ability of states to enact contradictory laws.  The Court did something idiotic to reach the result it wanted, and I think they knew they were being idiotic.

    But here’s the rub.  The correct way to reach that conclusion would have been to designate homosexuals as a “suspect class.”*  Same thing with the SSM rulings.  And, frankly, there is no doubt in my mind that such a ruling would have been eminently defensible.  Homosexuals clearly do meet the criteria for a suspect class.  But I think the Court didn’t want to go that far.  That would have opened a whole can of worms.  A whole crate of worms, in fact.  Special rights for gays.  Invalidating laws that had a disparate impact on gays.  Stuff that you, I think, would have found really, really objectionable.  So, just as it did in Bush v. Gore, the Court issued an opinion with a wink and a nod, and figuratively dropped a footnote saying “Let’s not take this decision all that seriously, okay?”

    * “Suspect class” means a group that is a “discrete and insular minority,” based on an inherent trait that is highly visible, where the class has been disadvantaged historically, and has historically lacked effective representation in the political process.  You might disagree with the “inherent” part, but gays certainly meet the other criteria.

    • #40
  11. The Reticulator Member
    The Reticulator
    @TheReticulator

    Larry3435 (View Comment):
    * “Suspect class” means a group that is a “discrete and insular minority,” based on an inherent trait that is highly visible, where the class has been disadvantaged historically, and has historically lacked effective representation in the political process. You might disagree with the “inherent” part, but gays certainly meet the other criteria.

    I hadn’t known about that term. Not that you or anyone else needs to get into it in this thread, but I’m wondering why that term was picked to refer to the concept. 

    • #41
  12. Larry3435 Inactive
    Larry3435
    @Larry3435

    The Reticulator (View Comment):

    Larry3435 (View Comment):
    * “Suspect class” means a group that is a “discrete and insular minority,” based on an inherent trait that is highly visible, where the class has been disadvantaged historically, and has historically lacked effective representation in the political process. You might disagree with the “inherent” part, but gays certainly meet the other criteria.

    I hadn’t known about that term. Not that you or anyone else needs to get into it in this thread, but I’m wondering why that term was picked to refer to the concept.

    I don’t really know for sure, but I’ll tell you my assumption.  For most laws, the courts apply a “rational basis” test.  That just means that there is some Constitutionally permissible reason why the legislature might have adopted that law.  The courts won’t examine the actual motives of the legislature.  During the era of Jim Crow, though, the courts declared race (essentially black folks) to be a suspect class, which meant that the courts would not assume good faith on the part of the legislature.  If a law was passed that had the effect of disadvantaging black people, the courts would be suspicious that the legislature’s real motive was to harm those black people.  They would look on the legislature’s motives with suspicion, and required the legislature to identify a “compelling state interest” to justify that law.  Suspicion; thus, suspect class.

    • #42
  13. Larry3435 Inactive
    Larry3435
    @Larry3435

    Jerry, I should add a fourth point to my comments in #39.  

    Jerry Giordano (Arizona Patrio… (View Comment):

    The more troubling point is the response by so many conservatives to any proposal to legislate traditional morality in some way, even when the details are not specified. You called it “illiberal” and “authoritarian,” and other comments called if “fascist” and likened it to Stalinism or the Spanish Inquisition.

    You seem to believe that if government legislates morality, your morality will win out.  That is very unlikely, in my opinion.  Public opinion (or, if you wish, we can call it the will of the majority) is either against you or is moving against you.  Even on an issue like SSM, public opinion was rapidly moving toward support for it and it would have been widely adopted through the democratic process if the Supreme Court had not short circuited the process.  And even if your morality is shared by a majority of the population, the other side is far more motivated and politically active.  They could easily win out, even where they hold a minority opinion.

    I notice that the other side has no problem with legislating their morality despite local opposition, or even opposition at the state or federal level.

    Yeah.  Because the other side is a bunch of fascists.  You argue that we should meet their fascism with our own fascism.  I don’t think that’s a winning strategy.  I think we should oppose all fascism.  It seems to me that it would be a lot easier to build a public consensus on a platform of anti-fascism than it would on a platform of anti-SSM, or anti-obscenity, or (God help us) pro-Blue Laws.

    If you concede that it is “altogether fitting and proper” (to coin a phrase) for the government to legislate morality, it is very likely going to adopt a morality that you hate, and shove it down your throat.  The other side is trying to do that, and if you cede the moral high ground by admitting that it is legitimate for them to do it (so long as they follow a democratic process), you won’t have much of a leg to stand on when you want to object to the results.

    • #43
  14. Stina Inactive
    Stina
    @CM

    Larry3435 (View Comment):
    If you concede that it is “altogether fitting and proper” (to coin a phrase) for the government to legislate morality, it is very likely going to adopt a morality that you hate, and shove it down your throat. The other side is trying to do that, and if you cede the moral high ground by admitting that it is legitimate for them to do it (so long as they follow a democratic process), you won’t have much of a leg to stand on when you want to object to the results.

    Issue being that while we are having morality laws shoved down our throats, we are being dumped on by the Frenchists that we have no recourse.

    And it was anti-sodomy laws, not anti-gay laws. Sodomy exists in hetero relationships, too.

    • #44
  15. Larry3435 Inactive
    Larry3435
    @Larry3435

    Stina (View Comment):

    Issue being that while we are having morality laws shoved down our throats, we are being dumped on by the Frenchists that we have no recourse.

    I don’t know what a Frenchist is, but I say we do have recourse.  The recourse is to oppose morality laws.  All morality laws.  But if you think morality laws are fine and dandy, then you are going to get them, and I suppose you deserve what you get.  I’m guessing you’re not going to like it.

    And it was anti-sodomy laws, not anti-gay laws. Sodomy exists in hetero relationships, too.

    @thereticulator, this is a perfect example of why the courts have recognized the idea of a suspect class.  No one actually believes that anti-sodomy laws were enacted for any reason except to punish gays.  And they were never enforced, except against gays.  But the legislature will hide behind arguments like Stina’s argument here and say, “Who, us?  Oh, no.  We would never single out a group of Americans (such as gay people) to attack.”

    • #45
  16. The Reticulator Member
    The Reticulator
    @TheReticulator

    Larry3435 (View Comment):
    I don’t know what a Frenchist is, but I say we do have recourse. The recourse is to oppose morality laws. All morality laws. But if you think morality laws are fine and dandy, then you are going to get them, and I suppose you deserve what you get. I’m guessing you’re not going to like it.

    All laws are morality laws.  So I don’t think we can oppose them all.  But we’d probably agree a lot on which laws to oppose.  

    • #46
  17. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake: Few have been brave enough to flesh out what the Ahmarist, or “anti-Frenchist,” vision of the common good should be. Some have said articulating specifics is beside the point, that Ahmarists’ refreshing achievement is unapologetically asserting a common good exists

    Perhaps it’s not a question of bravery. Perhaps it’s because there isn’t a vision of what the common good should be even among people who would consider themselves close allies. Indeed, even arguing that such a thing exists is an achievement. In practice, common good is subjective. The Ahmari-French divide, if it really is that, seems to be primarily about when and how those differences should be subject to the political process. 

    • #47
  18. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake:

    [U]nlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, [emphasis added] 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…

    it’s hard not to think of abusive priests who talk their victims – and perhaps even themselves – into believing victims should thank their abusers for lessons in authentic desire.

    I read the whole Vermeule essay before reading the rest of the post. I found it easy not to think of abusive priests manipulating their victims, primarily because that isn’t what Verrmeule is saying or advocating either in this quoted paragraph or the rest of the essay. 

    We’ve discussed the proposition on ricochet before: is law downstream of culture? Upstream? Or does it go both ways? Around these parts, no one takes the “upstream” position, but there are adherents to both the “downstream” and “both ways” positions. I do think it’s two way travel; the details matter, though, and can only be worked out through the political process (including the decision to keep it out of the formal political process).

    I find much wrong with the Vermeule essay and ideas, but manipulative pedophile is hardly an apt metaphor. 

    • #48
  19. Stina Inactive
    Stina
    @CM

    Larry3435 (View Comment):
    this is a perfect example of why the courts have recognized the idea of a suspect class. No one actually believes that anti-sodomy laws were enacted for any reason except to punish gays. And they were never enforced, except against gays. But the legislature will hide behind arguments like Stina’s argument here and say, “Who, us? Oh, no. We would never single out a group of Americans (such as gay people) to attack.”

    And in spite of the pro-gay propaganda that has been prevalent in sex education since the 90s (including Cosmo and other pro-sex liberalism publications), sodomy is damaging.

    So we stopped enforcing anti-sodomy laws quite a while back, but the repeal of them completely may have opened us up to talking glowingly about sodomy being a totes good way to avoid pregnancy or to keep up a sex life during menstruation. And as we got more comfortable with the idea of sodomy being a healthy way to think about hetero sex, we then became more accepting of gay relationships.

    In a nut shell, in order to “massage” the culture into being more accepting of gay relationships, the culture shapers pushed an idea that is actually harmful to hetero relationships, especially women.

    I’m with Ed on the two-way street.

    • #49
  20. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake: We should suffer from a horror of political domination. A hierarchy that doesn’t is ripe for abuse. No mere mortals are cut out to be perfect parents, even to flesh of their flesh, much less to subjects mostly strangers to them.

    The quote above – “common-good constitutionalism does not suffer from a horror of political domination and hierarchy” – notwithstanding, Vermeule goes on to define just rule including the principles of hierarchy and subsidiarity. So he’s not arguing against hierarchy or subsidiarity but for them. How does that square with the quote about not suffering from the horror of political domination and hierarchy? I think it squares quite easily by understanding that Vermeule is criticizing one practical instantiation of politics and hierarchy. 

    • #50
  21. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake: Mothers aren’t supposed to mention this, and conservatives, who regularly defend the good of punishment, aren’t supposed to admit this, but not all our instincts to punish children are wholesome ones.

    Ain’t that the truth! When Jordan Peterson was using that in his talks I had to pause it and bring my wife in to listen – while we both chuckled and nodded at the recognition in our own interactions with our own kids. 

    • #51
  22. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake: An all-good, all-loving God may wield parental authority that’s wholly benign, but parental authority in the hands of fallible mortals is not. It has a dark side, a side not to be trusted around too much power.

    Agreed. I don’t think Vermeule is suggesting the former in his essay. 

    • #52
  23. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake:

    Susannah Black at Mere Orthodoxy defends Vermeule by qualifying,

    [O]f course a false “common good” may be used as a rhetorical tool to support the abuse of individuals, their coercion for the good of some other person or group. But the true common good simply never can.

    To which we may as well add that no true Scotsman ever does whatever it is that no true Scotsmen do.

    Black’s argument may still be faulty but I don’t think that’s what she is saying. A pedophile teacher might manipulate her victim using “for your own good” rhetoric, but the rhetoric doesn’t make it true. Conversely, no matter how many times progressives and anarchists call border control “abusive” (I’ll use that as shorthand for the parade of bad words and -isms they might apply in reality) that rhetoric doesn’t actually make border control abusive in reality. Whether it is a common good is a slightly different question from whether it’s abusive.

    Not to get too far down a rabbit hole in addressing Black’s argument, but the fault in her argument (I haven’t actually read that article yet) is that the term “abuse” is also subjective in practice.

    • #53
  24. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake: I believe in the Christian apocalyptic vision. I await a time-out-of-time when Christ will rule, and, with all subject to Him, be All in All. Contrary to COVID-19 headlines, though, the apocalypse is not now. Now we see in a mirror dimly. We do not see face to face. We do not see the true common good – and it’s arrogance to think we can.

    I agree, except that on the opposite side of the arrogance of thinking we know the one true common good is the nihilism? of not working toward any notion of common good – which I believe to be essential to any well functioning community. So banning drag queen story hour might not be able to lay claim to being the one true common good, but the people of a community also have a right to order their communities as they see fit and just. I think Vermeule gets it right in saying that current constitutionalism works against this kind of decision-making within communities by imposing an individual-centric conception from above. 

    • #54
  25. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake: We’re not wholly blind to true common good, of course. Still, we lack enough vision to be entrusted with great power over our fellow mortals.

    I think this is part of the radical change that Vermeule is talking about. I don’t think the founders would have agreed with this statement. I think they all thought that state and local governments did rightly have great power over our fellow mortals. The big difference is that the founders weren’t entrusting this great power to unaccountable tyrants, monarchs, nobles, or aristocracy. They were entrusting this power to the people themselves by means of a participatory and well balanced/checked government authority part of whose scope was indeed the common good.

    • #55
  26. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake:

    For this reason, Vermeule’s insouciant assertions that “strong rule in the interest of attaining the common good is entirely legitimate” and a common-good constitutionalism should not

    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

    are horrifying, not because we must judge the goodness of government solely by whether it minimizes abuse of its powers, but because they give rhetorical cover to strongmen who have no qualms about abusing power for the sake of a so-called “common good”.

    I don’t think Vermeule was insouciant at all, and I oppose your fomulation too. What is your formulation? in abstract terms: we shouldn’t do x, with benefit y, because party z could use to abuse everyone else. That’s the anti second amendment argument. That’s the anti-capitalist argument. That’s the anti-AI argument (although I think the benefit part of the equation is more controversial on this one).  

    People disagree about the common good and some people will lie about common good to advance their own interests, therefore common good is an illegitimate basis for exercising political will. I disagree with that, and that doesn’t mean I therefore support a strongman authoritarian. 

    • #56
  27. Ed G. Member
    Ed G.
    @EdG

    Midget Faded Rattlesnake: Vermeule’s framing of common-good constitutionalism is not repugnant because it touts, in Black’s words, “The good of energy in the executive, of a wise ruler, and of well-exercised authority,” but because it delights in dismissing concerns that abuse of power is a problem, when all of human experience, from the great arcs of history, the meta-narrative of Christian salvation, down to the pettiest instincts flaring in our own hearts, tells us that it is.

    Does it delight in dismissing concerns about abuse of power? That’s a strange way to put it based on the articles you linked here. I see no delighting, let alone delighting in dismissing concerns. Does Vermeule dismiss abuse of power as a concern? I don’t think he does. In fact he links to a book presumably covering that issue where he presumably considers that in some detail. Without having read that book (and having no desire to read it) I assume his formulation in this essay at hand comes down to some sort of teleological (or tautological) syllogism. His main point seems to be that limiting abuse of power should not be the primary concern, but that just and full use of legitimate power should be the aim of a constitutional system.

    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.

    • #57
  28. The Reticulator Member
    The Reticulator
    @TheReticulator

    Ed G. (View Comment):
    His main point seems to be that limiting abuse of power should not be the primary concern, but that just and full use of legitimate power should be the aim of a constitutional system.

    When I was in elementary school I got the idea that limiting abuse of power was the most important thing about our system of government. I didn’t learn much about it in my classes, but figured that when I got to high school I’d learn more about it.

    But I didn’t learn about it in high school. I had good history and government teachers, but none of them talked about the abuse of power and how we’ve learned to limit it. Oh, well, I figured, I’d learn about it in college.

    Guess what. I went to a conservative Lutheran college where I also had good teachers. And my American government class was taught by a guy who later was appointed to some commission by President Reagan, so not a leftist. But his class was based on the history decisions of the Supreme Court, and if anything, exulted in the expansion of government power.

    So I’ve had to learn about limiting the abuse of power on my own.

    I have also been around internet libertarians, so have learned that I’m not a libertarian and that there is more to good government than limiting the potential for abuse of government power.

    But to say the primary concern of government should be the “just and full use of legitimate power”? Yikes. Maybe it’s time to buy some guns and stock up on ammo and food.  

    • #58
  29. Midget Faded Rattlesnake Member
    Midget Faded Rattlesnake
    @Midge

    Jerry Giordano (Arizona Patrio… (View Comment):

    The more troubling point is the response by so many conservatives to any proposal to legislate traditional morality in some way, even when the details are not specified. You called it “illiberal” and “authoritarian,” and other comments called if “fascist” and likened it to Stalinism or the Spanish Inquisition.

    I notice that the other side has no problem with legislating their morality despite local opposition, or even opposition at the state or federal level. We’ve seen this on issues like same-sex marriage and the weird trans phenomenon. Radical social positions are openly promoted by government at many levels. I don’t see any reason that we can’t do the same, and provided that such policies are adopted through the channels of representative government and do not violate specific Constitutional limitations, I do not think that they are fascist or authoritarian or otherwise illiberal.

    Though I don’t like the term “illiberal” either, because it is quite vague. Liberty is an important value, but I don’t think that it’s the only important value. Like many other terms, I worry that the use of “illiberal” as an epithet tends to stifle reasonable consideration of the positive and negative consequences of a specific policy…

    I’d like to address the specific point of who was calling what “illiberal”. I labeled Vermeule’s proposal illiberal because Vermeule himself did. Again, it’s possible he chose to label his own proposal “illiberal legalism” as a stylistic maneuver to garner more attention for his essay. Nonetheless, he put the description on the page himself.

    He also trashed “originalism”, despite there being various strains of originalist, or originalist-adjacent, legal theory, including strains which you yourself have pointed out do allow for more, rather than less, public-morals regulation. The logical inference to draw from this is that Vermeule is asserting that even the moral regulation the Founders accepted simply as part of daily life doesn’t go far enough: the state needs even more power than that to enforce morality – else, he could advocate for more public-morality legislation, as you do, within a broadly originalist framework, rather than denouncing originalism as the millstone around our legal necks.

    Our Constitution is set up so that each state, not the federal government itself, inherits its police and parliamentary powers from Mother England. As everyone gets to find out during an epidemic, states’ police powers are broader than many might suppose, including some power to protect the public’s health not just physically, but morally – see what I said earlier about the patchwork of state and local laws pertaining to sex ed. Now, the living tradition of Constitutional jurisprudence in this country has evolved over time to grant individuals more federal protection against the several states’ powers. Given the problems we had with slavery and Jim Crow, this evolution is understandable, even if it came with side-effects which could be reformed – in particular, could be reformed even, or especially, under an originalist interpretation.

    Vermeule himself chose to label himself as illiberal, as well as to argue, apparently, that originalism cannot go far enough. In doing so, he casts not just liberalism, but also the kind of public order Americans enjoyed circa our Founding, as not good enough for him. Not powerful enough for him. He himself asserts that only an “illiberal” order is powerful enough.

    • #59
  30. Ed G. Member
    Ed G.
    @EdG

    The Reticulator (View Comment):

    Ed G. (View Comment):
    His main point seems to be that limiting abuse of power should not be the primary concern, but that just and full use of legitimate power should be the aim of a constitutional system.

    When I was in elementary school I got the idea that limiting abuse of power was the most important thing about our system of government. I didn’t learn much about it in my classes, but figured that when I got to high school I’d learn more about it.

    But I didn’t learn about it in high school. I had good history and government teachers, but none of them talked about the abuse of power and how we’ve learned to limit it. Oh, well, I figured, I’d learn about it in college.

    Guess what. I went to a conservative Lutheran college where I also had good teachers. And my American government class was taught by a guy who later was appointed to some commission by President Reagan, so not a leftist. But his class was based on the history decisions of the Supreme Court, and if anything, exulted in the expansion of government power.

    So I’ve had to learn about limiting the abuse of power on my own.

    I have also been around internet libertarians, so have learned that I’m not a libertarian and that there is more to good government than limiting the potential for abuse of government power.

    But to say the primary concern of government should be the “just and full use of legitimate power”? Yikes. Maybe it’s time to buy some guns and stock up on ammo and food.

    Guns and ammo are always a good idea. It’s the ultimate check on government. 

    However, I don’t understand the “yikes” in reaction to “just and full use of legitimate power”. Those words “just” and “legitimate” are quite important. Tyranny or authoritarianism don’t qualify. If it’s both legitimate and just for a government like ours to have a power, then why wouldn’t we want our government to exercise that power fully? 

    • #60
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