Adrian Vermeule, Harvard's explosively provocative, controversial conservative, advocates as an integralist for a Catholic state, for an expansive federal executive, for the return of the New Deal, and worst of all, for movement beyond originalism into common good constitutionalism.
This last especially is a conservative's nightmare: for the last 50 years our nemesis has been a Supreme, Activist Judiciary that single handedly instituted the abortionist state. Our creed has been originalism, the restriction of the judiciary to the task of testing every law and regulation against the original intent of the Constitution. The crucial idea: it is the role of the elected legislature, not an absolutist President or Supreme Court to initiate new practices. The Court is merely an umpire, calling balls an strikes.
For legal practice I will stay with originalism. But philosophically I agree that the Constitution itself, read literally, is not an adequate guide for a state. It is a brilliantly practical document: division of powers, federalism, rule of law, all our rights, etc. But it is limited and flawed. It is the product of hundreds of years of Christendom but written by Enlightenment, deist, Calvinist, masonic, slave-holding, papist-hating elites. Especially as a Catholic, I cannot genuflect before the document like they do at Liberty University or Hillsdale College.
Substantially I agree with Vermeule. His is a "Catholic" sensibility that this document (like the Bible and any classic piece of literature) is not to be read narrowly, fundamentalistically in isolation from history, tradition and context. Rather, it makes sense only within a broader tradition and a universe of meanings that are not explicit in the wording.
What we need is a common good constitution rooted in natural law, the moral structure of the real.
Every social order is grounded in a philosophy and a religion, even if it is not explicit. Every one, however unconsciously, is an integralist. Everyone supports an order that favors specific values, that institutes a logical structure of meaning, that coerces and punishes violations. The alleged separation of Church and state and the neutrality of a secular order is a deceit. Consider our "liberal" order that requires the Little Sisters of the Poor to provide contraception, the evangelical baker to support and celebrate "gay marriage," the Catholic agency to place orphaned girls with sexually active homosexual men.
Our current crisis is far broader and deeper than the flaws of this document, it is the demise of the broader Protestant culture in which it breathed. In the 1960s, our elites and their institutions catastrophically renounced the legacy of Christendom that gave us what is best in the Constitution. They brought to a climax the interior toxicities of Enlightenment liberalism as individualism, isolation, knowledge as technocratic control, and freedom as detachment from tradition, family, religion and the True and the Good. Ours is not a constitutional so much as a cultural crisis: we have two societies that despise each others values. There is no common ground. It is now Cultural War...everywhere and all the time\
Nevertheless we always need a goal, a purpose which directs our politics. So I am proposing key elements of a better Constitution, rooted in natural law and tradition. Realistically this vision is fanatically resisted by the entire apparatus of modernity as secular, sterile, mega-technological, and individualistic. The assumption is that it cannot be imposed by a tyrannical Executive or Judiciary. Rather, the loveliness and charm of this politics, when lived at every level from the bottom up, radiate an irresistible, efficacious and fruitful influence.
About a dozen years ago David L. Schindler spoke in NYC about the three values that Pope Benedict identified as crucial to a good social order: the inviolate dignity of every human person; the sanctity of sexuality, marriage and the family; and the primacy of the transcendent and religious freedom. Here we have no narrow Roman Catholic confessionalism, but witness to the Real as true, good and beautiful.
Such a "politics of the Real" is practicable by all of us, wherever we are. It does not depend upon a party, an ideology and an administration. All three elements are contrary to the entire edifice of Modernity as individualism and mega-technology as control. This is not advocacy for a systematic ideology, but rather for humble practice of the small as beautiful.
In that line a forth value can be added to the first three: primacy of subsidiarity and the small. A wholesome Constitution will be anti-monopoly and anti-monotony and supportive of the small, the local, the personal and concrete. It is inconceivable that we would deconstruct huge institutions like airlines, national defense or stock markets. But it is only humane to restore what is human in scale.
A fifth commitment would be to the poor, the suffering, the disadvantaged. This would NOT be a revival of racial animosities. It would be colorblind. Realistically, every society has a class structure, with some toward the top and others toward the bottom. Ours is largely a meritocracy in which the more competent rise to the top. But the more advantaged clearly stay at the top, whether due to the competency they achieve or inherited privilege. It is utopian to aim to abolish the class structure in the way of Mao's Cultural Revolution. But a just society will be systematically and vigorously seeking to mitigate the inevitable underlying injustices that endure.
A sixth priority, in a globalized world and from a Catholic (universal) perspective, is collaboration towards a broader, international order of peace, liberty and prosperity. This is NOT "make America great again." This is a strong preference for internationalism and a firm renunciation of isolationism. It springs from two sources: the deeper, purer being the Catholic faith and its urgency to be shared; second, an appreciation for the post-war Pax Americana which, however flawed, is vastly superior to its dystopian alternatives (Communism, national fascism, Sharia law.)
To conclude, six elements towards a natural law, common good constitutionalism:
1. Respect for every human life.
2. Sanctity of sex, marriage, family.
3. Reverence for the transcendent and religious freedom.
4. Subsidiarity and protection of the small, the local, the concrete against gigantism.
5. Solidarity with the disadvantaged and suffering.
6. Internationalism as defense of the classic, Christian, free world order against tyranny.
These six precious, luminous realities are not something we impose upon the society, or the world, or upon anyone. Rather, they are realities that we freely live, preferably in quiet, humility, and peace. And of their interior, invincible dynamism, they transform the world, efficaciously and infallibly.
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