Call to abandon the professed, principled commitment to originalism in order to promote authority, hierarchy, conformity, and (whose?) morality.
To what extent is Veremule ready to discard elected government?
Per Vermeule the following must be repudiated:
Perhaps the essence of Protestantism is the publication of national languages Bibles and the assertation that each person is to read the text for themselves.
- that one has a right to define one’s own concept of existence
- that government is forbidden to judge the quality and moral worth of public speech
- that one has property rights and economic rights that restrict the state in the use and distribution of resources
Vermeule asserts the Counter-Reformation.
Note: quotations rearranged to collect together similiar or identical statements.
2023-10-02: Vermeule Beyond Originalism (PDF) 2020
Table of Contents
- In recent years, allegiance to the constitutional theory known as originalism has become all but mandatory for American legal conservatives.
- It enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts, appealing over the heads of the justices to the putative true meaning of the Constitution itself.
- But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.
- It is now possible to imagine a substantive moral constitutionalism that, although not enslaved to the original meaning of the Constitution, is also liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy.
- Such an approach--one might call it “common-good constitutionalism”--should be based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.
- These principles include
- respect for the authority of rule and of rulers; [authority]
- respect for the hierarchies needed for society to function; [hierarchy]
- solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; [conformity]
- appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and [localism? need a better term]
- a candid willingness to “legislate morality”--indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that [whose? morality]
- the promotion of morality is a core and legitimate function of authority.
- Common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.
- Common-good constitutionalism is not legal positivism ....
- Common-good constitutionalism is also not legal liberalism or libertarianism.
- Its main aim is ... to ensure that the ruler has the power needed to rule well.
- ... 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. [example "human liberties" are? Are "human liberties" conceptions of the concept of liberty?]
- Finally, unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. [claimed purpose of both National Socialism and Communism]
- 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 reforms them.
- Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.
- Constitutional law must afford broad scope for rulers to promote ... peace, justice, and abundance. Today, we may add health and safety to that list .... ... a further corollary is that authority and hierarchy are also principles of constitutionalism. Finally, and perhaps most important, just rule emphasizes solidarity and subsidiarity. Authority is held in trust for and exercised on behalf of the community and the subsidiary groups that make up a community, not for the benefit of individuals taken one by one.
- Constitutional words such as freedom and liberty need not be given libertarian readings; instead they can be read in light of a better conception of liberty as the natural human capacity to act in accordance with reasoned morality.
- [the better conception of liberty according to the linked text appears to be "From what has been said it follows that it is quite unlawful to demand, to defend, or to grant unconditional freedom of thought, of speech, or writing, or of worship, as if these were so many rights given by nature to man. For, if nature had really granted them, it would be lawful to refuse obedience to God, and there would be no restraint on human liberty."]
- ... a few broad strokes can be sketched.
- The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after.
- the libertarian assumptions central to free-speech law and free-speech ideology--that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on--fall under the ax.
- Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
- Originalism has done useful work, and can now give way to a new confidence in authoritative rule for the common good.