Everyone has read Adrian Vermeule’s piece at The Atlantic advocating for a common-good conservatism. Basically, Vermeule argues, conservatives should abandon originalism in favor of a constitutional approach founded upon the common good, the natural law, and the law of nations. He argues that the powers of the government, while they could be founded upon specific constitutional provisions, need not be founded upon them. Instead, the general constitutional structure and the principles of the common good and just rule would provide the support for the government’s powers.
Vermeule’s piece has met with significant criticism from all quarters. The conservative legal establishment, even the Catholics among them, has too much invested in originalism to abandon it in favor of “progressive” approaches to the Constitution, even when those approaches would further conservative goals. Right- and left-liberals see in Vermeule’s argument incipient authoritarianism: state power untrammeled by the checks and balances of the federal constitution. Through all of this is the thread that, for whatever reason, the suggestion that the Constitution ought to be interpreted according to the natural law and moral principles is seen as dangerously reactionary. Worse still is the idea that the government has the obligation to promote the common good, which is an idea with definite content.
However, I think there are some points that ought to be brought out. First of all, the idea Vermeule advances is simply the doctrine of the Roman Church. In Gaudium et spes, the Second Vatican Council outlined an energetic civil authority with the obligation to promote the common good for the total well-being of its citizens. Second, there is a tradition going back to the founders of the Republic that (1) morality applies to republics as well as men and (2) that there is a law higher than the written constitution. These principles, in fact, may be readily found in the writings of Thomas Jefferson. Originalism must reckon with this reality, in addition to its regular citations of Noah Webster’s dictionary and The Federalist.
So-called “common good conservatism” is simply the doctrine of the Roman Church, even in the era following the Second Vatican Council. In Gaudium et spes, the Second Vatican Council proclaimed, “The political community exists, consequently, for the sake of the common good, in which it finds its full justification and significance, and the source of its inherent legitimacy” (74). Furthermore, “[i]f the political community is not to be torn apart while everyone follows his own opinion, there must be an authority to direct the energies of all citizens toward the common good” (ibid.). However, the authority must be exercised “not in a mechanical or despotic fashion, but by acting above all as a moral force which appeals to each one’s freedom and sense of responsibility” (ibid.). The Council went on to declare that, “[i]t follows also that political authority, both in the community as such and in the representative bodies of the state, must always be exercised within the limits of the moral order and directed toward the common good—with a dynamic concept of that good—according to the juridical order legitimately established or due to be established” (ibid.). When it is so exercised, it is binding in conscience and must be obeyed (ibid.).
The Council also articulates a robust vision of the scope of political authority as well, teaching that “[t]he complex circumstances of our day make it necessary for public authority to intervene more often in social, economic and cultural matters in order to bring about favorable conditions which will give more effective help to citizens and groups in their free pursuit of man’s total well-being” (75). This can extend so far as the temporary restriction of rights for the common good (ibid.). While the Council calls for written instruments of positive law setting forth rights of citizens, the Council also takes care to note that individual citizens have duties to the common good.
One finds in Gaudium et spes, therefore, a vision of the state ordered to and constrained by the common good and the moral law, but within those constraints with significant authority to act broadly and energetically in all spheres of common life to promote the total well-being of its citizens. With the Council’s language about obedience and the duties of citizens to the common good, one could read Gaudium et spes almost as an endorsement of a total state, directing, through intervention in all aspects of life, “the energies of all citizens toward the common good,” and their total well-being.
From the beginning of the integralism debate, Charles de Koninck’s The Primacy of the Common Good Against the Personalists has been a foundational text. Indeed, one might say that it is the foundational text of integralism in the 21st century. And De Koninck’s explanation of the Thomistic vision of the common good and political authority in service of the common good provides an important background for the Council’s teaching, especially in the context of the vision of the sweeping power of the state. De Koninck’s careful explanations exonerate the Gaudium et spes state from the charge of totalitarianism, though, like Gaudium et spes, De Koninck challenges us to reconsider liberal notions of the limits of the state.
However, I think Vermeule makes an error, at least by the terms of Gaudium et spes. He claims, “[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.” This is not quite right. In Gaudium et spes, the Council teaches, “[b]ut where citizens are oppressed by a public authority overstepping its competence, they should not protest against those things which are objectively required for the common good; but it is legitimate for them to defend their own rights and the rights of their fellow citizens against the abuse of this authority, while keeping within those limits drawn by the natural law and the Gospels.” The Council’s teaching is a fairly straightforward restatement of St. Paul’s teaching in the Letter to the Romans and Thomas Aquinas’s teaching in the De Regno and the Summa Theologiae. Legitimacy is not an on-off switch, and where a bad ruler makes ordinances that are still “objectively required for the common good,” the ordinances must still be obeyed.
Whether or not Vermeule’s mistake has significant consequences for his argument is not immediately clear. One could follow Alasdair MacIntyre and claim that the universal accessibility of the natural law is a significant argument against centralization, especially the sort of centralization Vermeule argues for, which is ultimately patterned on the governments of Louis IX and Frederick II. There are problems with MacIntyre’s argument, including—I think—a misreading of some of Frederick’s Sicilian legislation (especially as it relates to his imperial legislation). However, treating legitimacy as an on-off switch makes it harder to rebut MacIntyre’s argument against centralization. Indeed, centralization of a leader supported by a strong bureaucracy presents significant risks if one tyrannical act delegitimizes the entire regime. The problem is much less significant if the act is taken on its own terms without implicating the right to rule.
Prescinding from technical questions such as the nature of legitimacy in the context of tyranny, for Catholics (and others) who have followed the integralism debate over the past few years, the teaching of Gaudium et spes is hardly groundbreaking stuff. Indeed, it is a pretty conventional summary of Aristotle and Thomas Aquinas. The political community is ordered to the common good, there must be an authority to direct the citizens toward the common good, and the acts of that authority are binding in conscience if they are “exercised within the limits of the moral order and directed toward the common good.” What is interesting is the debate, even among integralists, about Dignitatis humanae and its supposed liberalism hardly takes notice of these statements in Gaudium et spes.
All of this is to say that, for Catholics, even Catholics suspicious of reliance on Pius IX and Leo XIII, there is very little controversial in Vermeule’s common-good conservatism. Indeed, given that the teaching in Gaudium et spes is explicitly founded in some significant part upon natural law, there is very little controversial in Vermeule’s argument for anyone. Of course, this is not quite the case: Vermeule’s piece has become hugely controversial, even among Catholics. Non-Catholic conservatives prefer to emphasize the constitution’s text, rejecting the claim there is a higher law or that morality forms a part of the law.
Vermeule’s Catholic critics must reckon with Gaudium et spes. To assert that there is no room for the common good, for the moral order, in government is to contradict the Second Vatican Council. Indeed, to affect horror at the concept of public authority exercising its power in social, economic, and cultural matters to order the state to the common good and establish conditions propitious for the total well-being of all citizens is to deny outright the teaching that the political authority must be obeyed when it acts in such a manner. So far from casting off the authoritarian teachings of Pius IX and Leo XIII in favor of the fresh air of the Council, Vermeule’s Catholic critics are casting off the Council’s teaching.
Even if they are not casting off the Council’s teaching, they are presenting a vision of the Council that emphasizes the aspects superficially compatible with liberalism in the 20th century. To focus on a few paragraphs in Dignitatis humanae without giving equivalent attention to the teaching in Gaudium et spes is to present a false picture of the Council and its vision for modern society. To challenge this false picture, one need not go so far as to demonstrate the consistency of the Council with the teachings of Pius IX and Leo XIII—to say nothing of Boniface VIII—one need only insist upon the presentation of the Council’s integral teaching, without omissions or distortions. It becomes clear that the Council becomes little more than a pretext, quickly discarded, for adopting liberalism in its entirety.
All of Vermeule’s critics must reckon with the fact that the conception of the common good and the moral order as a framework for government is not altogether alien in the American tradition. Certainly, one can cite Abraham Lincoln at great length, both in his debates with Stephen Douglas, and in his actions during the rebellion, in support of that principle. However, one can find support going back to the every beginning of the Republic. Thomas Jefferson, in his April 28, 1793 “Opinion on the French Treaties,” observed that the “Moral law of our nature” constitutes an important part of the law of nations, and that the “Moral duties which exist between individual and individual in the state of nature, accompany them into a state of society & and the aggregate of the duties of all the individuals composing the society constitutes the duties of that society towards any other . . . .” Indeed, Jefferson went on to observe that God did not release men from their moral duties when they entered into society.
Furthermore, nearly twenty years later, Jefferson, in a September 20, 1810 letter to John B. Colvin, admitted the existence of a law higher than the Constitution. He wrote, “[a] strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation” (emphasis in original). Indeed, Jefferson argued, “[t]o lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”
The hermeneutic of originalism has to reckon with statements like this. The opinions of the drafter of the Declaration of Independence, the third President of the United States, the second Vice President, the first Secretary of State, and member of Congress cannot be held for naught simply because they are not James Madison’s opinions (or Alexander Hamilton’s or any other framer you’d like). If originalism is a coherent interpretative tool and not merely a fig leaf for this or that libertarian policy preference, then Jefferson’s views matter. Indeed, they probably matter more than Noah Webster’s dictionary or floor speeches in Congress by less influential persons.
Of course, one may adduce in opposition to these selections the extract from Jefferson’s commonplace book in which he argues—against the opinions of many learned judges and lawyers—that Christianity was never part of the common law. And even if one does not go that far, one hardly needs lessons in morality from one such as Thomas Jefferson, whose behavior in certain respects has become infamous in recent decades. Yet this does not change the fact that Jefferson’s views constitute part of the civil tradition of the United States.