Writing a few days ago in The Atlantic, Harvard law professor Adrian Vermeule made an argument for what he calls common-good or “moral” constitutionalism, a new approach “not enslaved to the original meaning of the Constitution.”
“Originalism has done useful work, and can now give way to a new confidence in authoritative rule for the common good,” he wrote.
If this rings bizarre or fantastical to some ears, that’s because Vermeule’s proposition is the flip side of what the founders seem to have envisioned. John Adams wrote in 1798:
We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition, Revenge or Galantry would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.
“A moral and religious people”! What a refreshingly retro idea. In Adams’s formulation, the nation’s morals flowed from a religiously informed populace to a government that reflected their morals back. The government was to keep out of engineering morality –hence the First-Amendment prohibition against government interference with the church.
The notion of a ‘moral government’ that uses its power to legislate values for the populace probably would have provoked a dry laugh from Adams, experienced as he was in the failures of coercive governments.
A NATION OF MORAL IDIOTS
But that was then and this is now. One thing’s for sure: Americans are no longer a moral and religious people. Anyone who doubts this should glance at the news, turn on the TV, walk through a shopping mall, or sit in a university classroom.
Or take the Wuhan virus outbreak: that has certainly testified to Americans’ moral flaccidity. Would a ‘moral and religious people’ stand by while churches are forced to close, or a judge sends a hairdresser to jail for the ‘crime’ of opening her salon? Where were the crowds of morally outraged citizens surrounding that courthouse, signaling to the petty tyrant inside that he no longer held the moral authority to speak for the people–that he’d better slither off his disgraced bench and find a good place to hide?
Where was the massive civil disobedience, not just in Texas but across the country? What does it say when Americans march by the tens of thousands to howl their disgust with the president’s personality but hide in their houses when Democrat governors, mayors, and judges flagrantly abrogate the Constitution and let civil liberties go to seed?
The Wuhan outbreak seems to have exposed the inadequacy of the Constitution for present-day Americans. Or perhaps we should say: the outbreak has exposed the moral inadequacy of present-day Americans for their Constitution. Like monkeys handed a compass, Americans across the political spectrum seem to lack the moral intuition and confidence to find true north and and defend their civil liberties.
Adams would probably opine that America today is peopled by and large with moral idiots. Not bad people exactly; but sex- and death-obsessed, indebted, judgmental, cynical, insecure, willful, callous, narcissistic, gossiping, addicted, equivocating, greedy, casually honest, comfort-seeking, self-righteous moral ignorants.
THE SUPERMAN FANTASY
But this is not Americans’ self-image, rejecting as they do traditional evaluations of virtue. Most Americans–including many neo-conservatives–live in a progressive fantasy that celebrates moral idiocy as freedom. In this shared delusion, ‘progress’ has replaced the need for principles. The American fancies himself a Nietzschean superman who has transcended conventional morality.
And just like the comic-book heroes he watches in a parade of silly movies, the American draws on his own inner power and righteousness to fabricate rules and define for himself truth, justice, and the good. No need for time-tested religious principles or morals–those are for the little people of Gotham City, not Batman.
The American fancies himself a godlike creator of values; but in fact he has half-consciously absorbed attitudes from deconstructive educational theory, the legacy media, and entertainment. His worldview rests on a farrago of atheism and antitheism; moral and cultural relativism; materialism and scientific positivism; sexual anarchism; presentism; race- and sex-based analysis of grievance, victimhood, and entitlement; magical thinking about the individual’s ability and right to ‘self-create’; an unprovable assertion that the world is getting progressively better; and semi-conscious worship of technocratic expertise, credentials, and financial success. None of these ideas are new–many are very old, in fact–and none are created by him.
While it’s tempting to say that people of faith and conservatives have remained immune, that would be flattery. Millions of them have absorbed and made peace with the moral idiocy to one degree or another. They have fallen into a ‘double life’. Their beliefs have withered to signaling displays for church and family, while they go along with or even support progressive values in the rest of their lives. Conservatives have found themselves ‘de-moralized’ in every sense of the word. Forced by culture and the government to pay lip service to a progressive fantasy they find weird or downright insane, many have grown ‘discouraged’; and many more have found themselves ‘turned away from what’s true and morally right’, swearing public fealty to factitious pseudo-principles in order to go along and get along.
Is America’s amoral predicament a sign that Vermeule is right? Must the state effectively become the church and dictate attitudes to an amoral populace?
POWER AND MORAL CONSENSUS
A citizen’s beliefs about truth, justice, and the good determine his opinion of life’s purpose; and his opinion of life’s purpose in turn influences every decision he makes. When a citizen possesses authentic morals, and those morals agree with many others, he shares a ‘moral consensus’ with them. If the moral consensus happens to be well founded, a populace can raise the quality of its life, negate even the cleverest tyrant, and achieve domestic peace and greatness.
But a moral consensus is precisely what Americans do not have today. The political right shares no moral consensus with the left; and the left enjoys no moral consensus with itself, since its hierarchy of latter-day values rearranges itself weekly.
Where does that leave us? As comic books correctly dramatize, superheroes who live by personal rules and values struggle to work together as a team and often wind up in a power struggle. For the ordinary American wrapped in a fantasy of superherodom and value dictation, the effects are diffuse and minimal: she abuses others on Twitter and ruins Thanksgiving dinners with her ‘Woke Wonder Woman’ act.
But these same attitudes are dangerous in the elite class of Americans who DO wield substantial power. The power class of America are throwing buses and buildings at one another, inflicting their will as widely as possible by any means necessary. The carnage visited on the population is of no concern to them. Superheroes don’t worry about broken storefronts and maimed bystanders when the fate of the universe is at stake! Without moral consensus in the populace to function as a counterweight, individual power rages unchecked.
Michael Flynn stands as a recent case study. James Comey, John Brennan, Andrew McCabe, et al., spray-painted an “S” on their chests and unleashed their law-enforcement powers to destroy Flynn, in violation of countless ‘mere mortal’ laws, procedures, and safeguards. The more evidence emerges, the more it seems that Flynn’s destruction had little to do with any legal or moral transgression and everything to do with neutering his power in the new administration. Flynn was aligned with evil, and his obliteration HAD to be right, the details be damned.
The Flynn affair stands as just one of a hundred ‘Battle of the Titans’ raging among the powerful; and these battles have resulted in a catastrophic loss of trust in federal law enforcement, impartial justice, and the American system of government entire. In the eyes of millions, the law’s moral authority lies in ruins.
In spite of Flynn’s exoneration, Comey and The Avengers seem unlikely to ever admit wrongdoing. They continue to insist they were RIGHT–not in the sense of ‘standing on correct principles’ but rather ’embodying virtue and purity’. It’s an inversion: ‘Good’ is a person or set of persons now, not a transcendent idea. And a ‘good person’ is defined not by his principled actions but only by his opposition to Orange Lex Luthor (By the way: ‘Lex’ is Latin for ‘law/principle’).
All this amounts to black-and-white thinking at its finest, a reemergence of American puritanism. There are good people and bad people; and you can tell the good people by whether or not they see the witches you do and want to hang them.
Whether he apprehends it or not, Vermeule of Harvard sides with the superheroes. His moral constitutionalism will grant a minority technocratic elite the mandate to set America’s values, guided only by their vague sense of the “common good” as it is agreed among themselves.
But agreement upon an arbitrary set of values is not ‘moral.’ If that were true, a drug cartel–with their values of revenge, greed, cruelty, and nihilism–would be as ‘moral’ as Habitat for Humanity. Moreover, minority-decreed values have always and everywhere resulted in oppression. Such a construct doesn’t even work in fantasy: Batman may have beat up some baddies, but he never succeeded in turning Gotham into a wholesome city filled with happy, law-abiding, virtuous citizens. Even a comic-book reader knows that doesn’t happen.
A stable moral consensus must spring from ordinary people. It cannot be engineered by superiors into the little people. It was true when Adams said it, and it’s still true today. Whether or not Americans can find their moral center again and forge a moral consensus is unknown. But What we do know is that rule by superheroes with ‘a higher loyalty’ doesn’t work. We’ve already tried that. It ends up in power struggles and a divided nation.