About a month ago, the Atlantic dropped a bomb entitled Beyond Originalism, which somewhat briefly outlined an integralist approach to ensuring that the Constitution of the United States—the document—isn’t used to subvert the very things it was supposedly written to protect. The piece’s author was Harvard Constitutional Law professor Adrian Vermeule, no stranger to controversy, and I can only assume that the Atlantic decided to publish it in an attempt to make ‘conservatives’ look as authoritarian and as menacingly Catholic as possible. While it scared the liberally-minded conservative dilettantes into quite a barrage of counterpoints and rebuttals—most of which aren’t worth mentioning—the conservatives who actually take the definition at face-value sat back and said, “yeah, okay, that’s a start.”
Vermeule’s piece sparked responses not because it was particularly inflammatory, but because he strikes at the splinters of conscience that remain irritating all the uneasy conservative pundits who haven’t yet completely given up. The most noteworthy of these, in this complete amateur’s opinion, was one submitted to the American Conservative and penned by Thomas FitzGerald, which summarized an opposition to such constitutional interpretation without stumbling over the natural law in the process. We’ll be treating FitzGerald’s case in the third part of this post.
This isn’t going to be a particularly close analysis of constitutional interpretation, law, nor even the pieces in question. I’m not a lawyer, nor do I have any interest in being one. Rather, the divide across how to even approach running the country is what’s interesting here, as its a divide that is increasingly begging for practical solutions.
State of the Union
Before we get into either of these essays, let’s briefly put what they’re talking about into perspective. In order to understand the role the US Constitution and its various methods of interpretation play in the country’s governance today, we should have at least a general grasp over the constitution of the nation to begin with. By this we certainly mean its people, its culture, its general approach to solving social or political problems, its language, its moral values, etcetera—what constitutes the country. Its moral values should be reflected in its legal apparatus. No matter how much a liberal desires, there is no law that does not support one particular moral position at the expense of its alternatives.
So given that the legal system exists to enforce our constitution—both its unwritten one and, ostensibly, the one sealed away under bulletproof glass in Washington—what sort of condition is our country actually in after two hundred and fifty years of its founding?
Well, where to start?
In 1965, the highest court of the land read into the Constitution a right to privacy where matters of sexual morality were concerned. Griswold v Connecticut resulted in the nationwide legalization of contraception, a harbinger of the decades of sexual license that were to come just as much as it was an indicator of the country’s already deteriorating moral compass. Less than eight years later, the court decided, on very similar grounds, that the states had no business banning infanticide, so long as it was done under the guise of well-known medical procedure called ‘abortion’. It resulted in a nationwide demographic hole that’s nearly a sixth of our country’s entire population. This is a sterilized way of saying that there are approximately sixty million men and women who should be here, but who were instead killed due to a group of nine judges (seven in favor) agreeing that it was fine. Today, this is considered a political issue rather than the humanitarian crisis that it clearly is. Ask yourself why that might be the case.
Along the same lines, we have divorce rates which skyrocketed through the sixties before more or less evening out in the late 80s and 90s. Aside from running roughshod over social stability, the more dangerous part of this upheaval can be spotted in the trends in childcare over the same period. You don’t need statistics to recognize the number of broken homes that no-fault divorce policies have allowed to unfold in the last forty years. And this isn’t even touching on the epidemic of single parent households—many of which aren’t even a result of divorce so much as monstrously poor decision making by young people who are inundated by sexualized imagery of the culture around them.
It’s cliché to simply point out how divided the national consensus is, but it should be noted here because these divisions highlight the scope of the crisis that Americans are becoming more and more accustomed to dealing with. And there are plenty of other divisions unrelated (mostly) to the sexual revolution—divisions across ethnic lines that have been exacerbated by the waves of third-world immigration since 1965, for instance, divisions across racial lines that were inflamed by the Civil Rights Act and continue to be fanned, or divisions across the wealth gaps that include individuals whose staggeringly disproportionate net worths are larger than those of some countries. We’ll stick to the divisions rooted in sexual liberation, however, because this particular shibboleth is the best indicator of where someone’s beliefs fall with relation to the ongoing war for our country.
It’s important to note, also, that the passage of Roe, and Griswold, and Obergefell, et. al. were done under a system that was functioning exactly as it was supposed to. There weren’t, that we’re aware of, backroom deals between conspiring characters of questionable stereotype. The judicial process wasn’t hijacked. Instead, the Justices had certain sets of beliefs, maybe were swayed one way or the other, and the result, in Roe’s case, has seen the blood of sixty million children seeping into the gutter of the American dream.
1992’s Planned Parenthood of Southeastern PA v Casey deserves special recognition here, given its somewhat famous assertion that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” (851). It goes on to state, two paragraphs later, that “reasonable people will have differences of opinion” over matters of contraception as well as abortion. Shelving the issue of contraception, it should be apparent now that reasonable people cannot disagree over whether or not children should be summarily euthanized before they have a chance to take their first gasp of air. It’s not reasonable to believe that. Advancements in technology in particular are making this fact abundantly clear.
Vermeule singles this case out toward the end of his article, mentioning that such an abhorrent assault on human life and dignity would be stamped out under the purview of a common good originalism. Commendable of course, but the statements he’s attacking deserve more attention for my purposes here.
These statements about the power of human beings to define their own meaning for “life”, and that the state has no business implementing its own definition, are indicative of the moral framework liberalism pretends to advocate. I say pretend, even though we’re talking about an ideology, because liberalism’s tenants are all dualistic: what the liberal will say he believes is very often the opposite of how he acts or what he implements in liberalism’s name, and usually without direct or obvious contradiction of what he believes. This has been clear from the beginnings of the American Revolution (and it’s more stereotypically continental, blood-soaked French remake) all the way through to today’s liberal pandering.
But the statements in Casey express something else, too. They’re the mask-off moment where the Supreme Court admits that it—at least under that bench—was morally bankrupt and in no position to be arbitrating law. If you can’t come to an agreement about who is or isn’t alive, how can you even have a coherent conversation about when it’s okay to murder children? But that didn’t matter. They arbitrated anyway, and the nation basically went along with it. It’s taken almost half a century and a mountain of dead, but the pro-life cause has inched its way back into a relevant position much more terrifying to its opposition than the boogeyman that anti-natalists believed it was in the 90s. Given the state of the current Supreme Court, it’s no longer outside the realm of comprehnsion to see Roe overturned.
And here’s the crux of the issue. This is the degree to which the divisions across cultural lines in America run. Morality ceases to bind people together when some of them have decided that innocent life deserves to be taken for the convenience of others. The whole moral framework collapses once you allow murder to be acceptable. And as we see in the remarks of Casey, the court even admitted that their moral backbone was completely relative, but it made no difference in their ability or desire to arbitrate.
So what is the constitution of these United States? It’s one that can’t even agree on what a person is. Not good!
Common Good Originalism
So let’s return to the meat of things. In his piece, Vermeule outlines his position:
“This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.”
Read in a certain light, this almost makes the case for the horseshoe theory of politics so blandly parroted by midwit centrists on Reddit. Solidarity of communities, authority, the legislation of morality, and a specific interest in unions and labor organization all point toward the practical implementation of what leftists try to get at when bumbling through a definition of socialism. But subsidiarity of general powers, solidarity of families, attention to hierarchy, and respect for rulers, specifically, delineate such aspirations as distinctly un-socialist, regardless of its exterior trappings.
Conservatives have for years tried to exist within a recognizably liberal environment. They insist on the necessity of subsidiarity while decrying the evils of a large, centralized state—something we’ll get to as we approach Fitzgerald’s rebuttal in a moment. And yet, regardless of who holds more of the power in Congress, who sits on the bench of the Supreme Court, or who’s able to stack the alphabet agencies during his tenure in the White House, the scope, size, and cost of the government only grows. The state apparatus is not something that is capable of shrinking in any significant fashion. Intuitively, we all know this. No one can imagine a world where the CIA was disbanded, or the standing army of the US were all given their last paychecks and told “good luck in the workforce,” or where one day, the welfare checks just stopped being mailed out. And there’s a fairly good reason why no one can imagine a world like that: the world of today is not the world of 1783, or 1865, or 1946, or even 1990.
Vermeule’s general appeals to integralism recognize that since the monster isn’t going to go away, and it’s not feasible to kill it, the best option left is an attempt at taming it. Efforts to delineate an originalism that anchors itself in the natural law is a means toward this end. And while it’s a good suggestion, I do have to wonder exactly how this is is to be done in practice. He mentions that “legal conservatism is no longer besieged,” and that, assuming all goes well in November, Trump’s presidency will more or less ensure that “some version of legal conservatism” will be normalized for “a generation or more.” He would know better than I on this subject.
Opponents of integralism question whether it’s even a good idea to trust the state, as FitzGerald touches on, but I haven’t encountered many who question the feasibility of the project in the first place. As readers of the blog could probably predict, I’m completely sympathetic to attempts at normalizing, if not outright legislating aspects of Catholic social teaching. This is far more radical a position than merely grounding Constitutional interpretation in the natural law, so I’m no opponent, in principle, to what Vermeule suggests. I just don’t see how a march through the institutions—in this case, the judges—is possible in a country as distinctly anti-Catholic as the present one.
And for the record, that’s not to say that Catholics are out getting shot to death in the streets of Baltimore by marauding gangs of Reds. But any Catholic who tries to reasonably present just what the natural law has to say on the sexual revolution loses credibility among whole swaths of the American pseudo-elite. The reason that the Kavanaugh hearings were dragged out into the surreal, abhorrent spectacle that they were was out of fear that, one day, a case will come before a majority-conservative court that could threaten the tenuous grasp that Roe v Wade holds over the country. That charade was just a taster of the commotion you can bet will come should a case of that nature actually come before the Court.
Vermeule this week published an interview he gave for Le Grande Continent that did briefly touch on the practical future for common good originalism. It’s worth quoting here:
“I am cautiously optimistic about the possibilities for a genuinely Catholic-inspired, solidaristic economics in the United States today — not as a final end goal, but as an interim situation that is better than the status quo ante of relentless, bipartisan neoliberalism. The main institutional locale for this program will have to be the administrative state, if only faute de mieux. We tend to forget that the New Deal, during which much of the current U.S. administrative state was cemented into place, was partly inspired by the principles of Catholic social teaching; in an important campaign speech in 1932, Franklin Roosevelt quoted from Pius XI’s Quadregesimo Anno and called it “one of the most important documents of modern times … it is as radical as I am.” Recently, leaders such as Senator Marco Rubio have begun to articulate a humane economics, oriented towards the common good, explicitly drawing upon Catholic social teaching. It remains to be seen whether that development will continue in the right directions, but it is an encouraging start. This could very well commence under a series of conditions: (1) under a constitutional principle of solidarity; (2) subject to reasonable administrative discretion (the determinatio); (3) and the understanding that whether and to what extent the principle is judicially enforceable is a separate institutional question.”
He mentions also the Federalist Society, “who are deeply dissatisfied with originalism and are searching for alternatives,” which he believes “could easily be ‘integrated from within.’” Another good sign that again indicates the possibility for a movement for the natural law—which returns us to a genuine sense of justice—to march through the institutions. On the other side of things, Rubio’s recent endorsements for fiscal solutions that sound remarkably like the sodalism of the last century—or more popularly, the distributism that has been quietly butchering the thought of free-market Catholics for the last ten years—is also a very good sign. The only problem is that it’s coming from Rubio, whose background doesn’t instill the most confidence going forward. But hey, people change, and he professes the Faith, so who can say what that future holds?
The Subsidiarity Delusion
To recap: our country is so ideologically riven that we have no national consensus on what a human life is, and our ruling body has declined to weigh in on the matter, choosing to ostensibly legislate and arbitrate according to an unsustainable moral relativism. In order to combat this, as we know that a system running on moral relativism will inevitably collapse into absolute chaos, we have one suggestion regarding an approach to legal theory that practically returns us to the natural law.
It is no surprise that even many self-professed conservatives took issue with such a take, as ‘legislating morality’ is a common boogeyman from libertarians and libertarian-infected conservatives. I’ll refrain from presuming what particular vices they fear might be arbitrated out of existence should a legal system grounded in the natural law ever come about, but it’s not hard to guess.
On the other hand, more nuanced criticisms are coming from a fear of simply consolidating too much power into the hands of the administration necessary to make this change. It can’t be denied that our legal system, complex and cantankerous as it is, has the sort of relationship with the natural law presently as drunken husbands have with their battered wives. Looking to shift gears now sounds like trying to move a mountain.
“He that violently blowth his nose, bringeth out blood,” Thomas FitzGerald notes, quoting St. Thomas Aquinas on the subject of drastic or radical governance. FitzGerald is no libertarian nor member of the liberal-right; he confesses himself an integralist not that unlike Vermeule. For FitzGerald, originalism doesn’t need to be changed from what it already encapsulates. He expresses this here:
“Moreover, originalism already provides us integralists who want to see American law reoriented toward the natural law with solid arguments to establish protections for fetal personhood at the federal level, ban porn, ban gay marriage, and even restore the Early Republic’s establishments of religion in the states. Indeed, Vermeule notes in his Atlantic piece that “in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals.” If Founding Era jurisprudence allowed the states to criminalize blasphemy against Jesus Christ, then why does Vermeule’s integralist project need to abandon originalism?”
He sort of answers himself, although unintentionally, a few paragraphs later, when he insists:
“Progressive Americans will not accept a conservative settlement of moral questions imposed by Court and bureaucracy upon the blue states any more than conservatives have accepted Roe and Obergefell.”
What I mean is that conservatives did accept Roe and Obergefell. It could very well be argued that we didn’t have a choice to say “no!”, as indeed, that’s why the courts exist in the first place. But it could also be argued that conservatives, particularly in the case of Obergefell, heard the court’s ruling and said, “yep, well, that’s that.” There has been no resistance whatsoever on the Obergefell front in the five years since its ruling from any major conservative figure. The closest thing to a victory we’ve seen was the vindication of that Washington baker who refused to bake a cake. It wasn’t a stand against same-sex marriage, it was a defensive maneuver couched in religious liberty. That isn’t the same as a strategy grounded in the natural law.
We all know what would happen to a political or media figure if he came out with a definitive statement against same-sex marriage. It’d be political suicide. He may gain support of those faithful in the country who remain committed to the proper definition of family, but he wouldn’t get a seat in the Senate, or that Fox News show, or whatever he was gunning for. He’d be relegated to the livestreams and podcasts of the internet, a fate which we all know means he’d be facing imminent and arbitrary deplatforming every time he went live.
And this isn’t even getting to the absurdity we see today, where homosexuals and drag queens force their way into right wing cadres on the basis of easily-sold libertarian talking points and gusto. Ben Shapiro, who is unfortunately a leading conservative pundit based on the numbers, wouldn’t even defend a coherent definition of marriage at the time of Obergefell’s ruling, opting instead to meaninglessly declare that the government should be “completely out of the business of marriage.”
So conservatism is a complete mess. FitzGerald argues not simply for an American conservatism in which subsidiarity is alive and well, but from the position that it still is. We can admit that at the time of Orestes Brownson, it was. Despite the centralizing reforms enacted by Lincoln in order to combat the complete disintegration of the Union, the county and state —and more importantly, the home parish, regardless of particular denomination—remained the foundation of the American polity. We didn’t have massive government overreach in the forms of federal agencies, nor did we have federal highway funds being used as leverage to force federal programs on unwilling localities. To give you an idea of the extent of government after the Civil War, we can remember that most counties in the country didn’t even have an organized police department.
Needless to say, things are different now. The federal government is utterly unrecognizable today compared to what it was just fifty years ago, much less a hundred and fifty. States, while still wielding a fair amount of power, have time and again been brought to heel when there is sufficient motivation in DC to do so. And DC doesn’t require a militant force to do so anymore; it has federal highway funds for that.
But this isn’t really about government overreach, is it? Brownson’s beliefs in Catholic republicanism were admirable, and perhaps even feasible—were this country’s constitution (lowercase “c”) not what it is. At the time Brownson was living, so little was legislated into the books that the social pressure of strong communities had to fulfill a role of moral arbitration that we now just rely on cops for. Imperfect and imprecise as it was, frontiersman justice, or even that of the small town, required a sense of community that today is hard to come by. Tocqueville even noted this in Democracy in America.
All of this indicates a social order utterly alien to our own, where too many of us live isolated, humanist, anti-social lives divorced from any particular neighborly cohesion. The internet has played a big part in the breakdown, of course, but it’d be a mistake to call it the prime suspect in this decline. We can look for that to the secularizing forces of public school, the sexual revolution, and, loathe as I am to sound like a rebellious teenager, the consumerist tendencies of late-stage capitalism. Thirty years ago, Americans populated malls instead of churches. Now we can’t even be bothered to do that.
I’m generalizing, of course, since America still has, among Western nations, a remarkably high rate of church attendance, despite the figure being in decline. But the Americans who are attending church every Sunday, who lament the fact that Waffle House has replaced the old diner on the corner, and who use their free time helping their neighbor replace the transmission in their twenty-year-old Chevrolet aren’t exactly the same Americans who are running the country. Aside from the ones who post Q-anon memes on Facebook, they’re not even included in the national discourse. And not just that, their entire way of life is steadily being phased out; the younger generations that may want to pick up their rustic lifestyle are either trapped in cities or suburbs and have none of the practical skills necessary to live in rural America. The country has been hollowed out, and for those of you following the demographic and birthrate decline, much of it has simply been replaced.
To be fair to FitzGerald, he honestly believes in an American population that strongly believes in the relevancy and importance of the Constitution:
“…experience has proven that America’s providential unwritten constitution includes a strong felt opposition to being governed by any “living” constitution, be it secularist or integralist. Originalism is the instinctive interpretive theory most Americans bring to public debates about our Constitution—not merely something Robert Bork cooked up in a “defensive crouch” in response to the excesses of the Warren Court, but the authentic American tradition of constitutionalism, with deep, ancient roots in the English common law’s canons of statutory construction.”
This population of people, experience has proven, are the same people lampooned by every major media outlet except (and periodically, even including) Fox News. He is right that some Americans will never accept a parlance removed from stringent originalism talk. That’s definitely true. And to be perfectly honest, there is something about the image of hot-blooded Americanism that such originalism fits right into. But I question how many of these Americans still exist or are going to exist in the next ten or twenty years. The country has already changed so drastically in the last twenty that fears of its complete abrogation, if not disintegration, are becoming increasingly sound.
Conclusions: Benedict’s Option or Pelayo’s?
FitzGerald nears the end of his piece by invoking his own version of the Benedict Option:
“[Originalism] allows us to create thick moral communities that treat statecraft as soulcraft at the state level. Unlike an agrarian commune or an urban parish, the red states, allied with originalist judges and a substantial bloc of culturally conservative legislators in Congress, would be sufficient to protect their own statewide Benedict Options writ large, their own revived blue laws and perhaps even ecumenically Christian (or Judeo-Christian) establishments of religion. And doing determinatio of the natural law into positive legislation at the state level accords with our providential constitution of territorial democracy.”
The Benedict Option, like integralism (in a much broader sense) are reactions to what attentive conservatives have been aware of for decades: that America is split across irreconcilable moral differences, and compromise is not an option. You can’t meet in the middle and agree to disagree over what defines human life, and whether innocents should be killed. That sort of belief should have no place in civilized society. The left believes the opposite just as strongly.
What FitzGerald here seems to be suggesting, however, is to retreat to the red states, where in many cases they’re merely less-liberal rather than more-conservative, and wait. Prepare. Defend the castle. But leave the blue states to their ghettos and abortion clinics. But we know that’s impossible. Texas already has to deal with Californians coming to places like Houston and wrecking their social order. New Hampshire deals with Bostonians moving in and demanding curbside trash collection. Joe Rogan apparently wants to move to Idaho.
Since the election of 2016, and even prior to that, conservatives should have realized by now that those who attack our way of life and our beliefs are not simply going to leave us alone. A regroup may be in order, as the integralists are doing presently with the volumes of material coming out in recent years defending it as a viable alternative. But a retreat on the scale of what Dreher and here FitzGerald suggest is a premature surrender. You won’t be left alone. The federal government under Obama pushed common core on every state unwilling to implement it by using federal highway funds as leverage. Trump has used similar tactics regarding immigration enforcement. Every president does. In this regard, every strata of government must be considered an option for “integration from within”.
As a final note, if we’re going to be using high-minded historical terms to describe speculative strategies going forward, then I suggest we dispense with the Benedict Option. I mean no disrespect to the Benedictines nor their venerable founder. But where someone like FitzGerald, channeling Dreher, may suggest a retreat from the culture behind the walls of a figurative monastery, I can only respond that there is no such thing as a figurative monastery. There are places where you can speak out loud reasonable opinions, like “I don’t think men are actually women,” and not get fired, and then there’s everywhere else. These aren’t monasteries in the culture war; they’re turning into figurative fortresses. And if the culture that the left has cultivated keeps up its assault, its lawsuits, its intimidation and thuggery, then there won’t be many of them left.
The current crisis of the culture isn’t some dark age where something once-great simply collapsed. It’s the result of an ideological invasion and should be treated as such. The culture should be reconquered, not abandoned to the hellish liberal modernity that rots so many souls. Thanks Dreher, but I’ll take the Pelayo Option, who, once routed by the Umayyads to the remote mountains of Picos de Europa, started the long, grueling, seven hundred year long Reconquista. That means taking back the institutions that hate normalcy and regular old-fashioned Americanism, and especially those that are decidedly anti-Catholic (like Hollywood). It means taking back the government, before the government decides to take you.