Last week, I discussed two articles criticizing the national conservative movement (if it’s fair to call it that) and “common good originalism.” The two articles appear in the current issue of The New Criterion, which is devoted in large part to a debate on the subject.
In this post, I want to present two articles from the other side of the debate. They respond to the lead piece, by Kim Holmes, attacking common good originalism/conservatism.
One of the responses is by Josh Hammer. It’s called “Yesterday’s man, yesterday’s conservatism.” It begins, unpromisingly, with name calling:
Holmes is yesterday’s man, dutifully reciting yesterday’s talking points, in defense of yesterday’s conservatism.
Hammer’s article quickly gets better. He finds support for common good originalism in certain writings of certain key founders and in some passages of the Constitution. In my view, however, the rights set forth in the First Amendment militate against Hammer’s rejection of a “values-neutral” public square.
In the end, though, what Hammer calls for by way of constitutional interpretation seems fairly modest and, from my point of view, less controversial. He writes:
Common-good originalism posits that when there is a reasonably close interpretive question, the interpretation substantively consistent with the constitutional order’s overarching telos must prevail.
In the case of lower court judges, he says:
[T]he most that common-good originalism could plausibly suggest outside of constitutional cases of first impression would be counseling against the dubious extension of Supreme Court precedent in ways redounding against the common good, and in favor of extending Supreme Court precedent in ways redounding to the common good.
In light of what many lower court judges are doing in the name of such an analysis, I would prefer that they leave the common good out of it.
The second article is by Daniel Mahoney. His critique of Holmes is less harsh than Hammer’s. The core of it is contained in these passages:
Where Holmes goes wrong, and significantly so, is in his failure to confront what Pierre Manent and Roger Scruton both call “the ideology of human rights.” A free society depends upon authoritative institutions whose raison d’être cannot be defined by the maximization of rights claims or the invention of ever new and often spurious rights. As Pierre Manent writes in Natural Law and Human Rights: Toward a Recovery of Practical Reason (2020), law can become a “slave to rights” when ill-considered rights claims undermine the defining and animating purposes of truly authoritative institutions.
Thus an institution such as the Catholic Church must ordain women as priests, religious and secular progressives insist, and reject its age-old understanding of sexual morality to accommodate the rights of those who in no way share its self-understanding. Likewise, universities must restrict the search for truth to accommodate the therapeutic demands of those insisting on “safe spaces” or ideologues committed to the extirpation of our civilizational inheritance. And the armed forces must accommodate the felt needs of those suffering gender dysphoria, regardless of its effects on the cohesion of those troops as an integral fighting force.
Over time, the ideology of human rights overturns the rules at the heart of all authoritative institutions. Social engineering becomes the order of the day. Moral antinomianism trumps the autonomy of civil society in the name of the autonomous individual unbeholden to the common good. In this new dispensation, authority is everywhere confused with authoritarianism. At the same time, as the indiscriminate rights claims of the least thoughtful and moderate supersede all other intellectual, political, and moral considerations, ideological abstractions prevent political and moral deliberation from playing an active and salutary role in civil society.
Unfortunately, Holmes is silent about this entire dynamic in which rights, divorced from a larger moral and civic context, disrupt the contents of life that true conservatism is obliged to protect. Invoking the intellectual authority of Locke and intrinsic rights does nothing to clarify the matter. . . .
In my view, the “traditional conservatism” that Kim R. Holmes defends needs to be rethought in light of pressing challenges and the need to make explicit all the tension-ridden goods at the heart of a free society still open to the tried-and-true verities of old. That demanding and delicate task is still ahead of us.
I think there is merit in this criticism.
The New Criterion contains two other contributions to the debate. I’ll probably write a post about them, but will call your attention to them now, in case I don’t get around to it. One is “Common-sense conservatism” by Robert Reilly. The other is “The promise & peril of the political common good” by Ryan Anderson.