National Review began publishing in 1955 as an answer to what founder William F. Buckley saw as the creeping collectivism of the New Deal infecting American society and making alarming inroads into the Republican Party. This March, the magazine published an essay extolling the virtues of Confucian societies – Vietnam and China among them – and comparing their response to the COVID-19 pandemic favourably to that of the United States. It would be imprudent to conclude too much from the publication of one essay in one journal, but this is likely one of the first in a series of cracks in the dam of the liberal conservatism that has held sway in the parties of the Anglo-American right for the last half-century. When that dam gives way to the wave of social unrest that will be unleashed by the current economic crisis, and it will, for there are no libertarians in a pandemic, a new right will emerge. A recent contribution to the Atlantic magazine by a leading conservative legal scholar might give us some insight into what the lay of the land might then be.
In that formidable essay, Adrian Vermeule, the Tyler Professor of Constitutional Law at Harvard Law School, calls on conservatives to move away from what is called ‘originalism’. It has long been an article of faith on the American right that the Constitution must be interpreted as it was by its authors, the Founding Fathers of the American Republic. In practice, it has tended to constitutional libertarianism. Any form of interference with the individual’s absolute liberty whether from obscenity laws, trades unions, or what the National Rifle Association might call the ‘jackbooted thugs’ of the federal government coming to take his guns has been viewed as suspect. For Vermeule, this has been an essentially defensive play. Conservatives have accepted a number of substantive outcomes they might not like – the fracturing of the nuclear family, the decline of religion as a cohesive force, and the entrenchment of the sexual revolution in the mainstream – in exchange for rather more abstract political benefits, such as the affirmation of a nearly-absolute individual right to bear arms.
In other words, the right has spent so much time and energy insisting on the fairness of the umpire that they have let the other side run up the actual score.
“Constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds…….Thus the state will enjoy authority to curb the social and economic pretensions of the urban–gentry liberals who so often place their own satisfactions (financial and sexual) and the good of their class or social milieu above the common good.”
Adrian Vermeule, The Atlantic
“We the people”. National Archives
Vermeule argues for a more muscular conservative legal doctrine which he calls ‘common good constitutionalism’. This, he argues, would mean abandoning the pretence of judicial value-neutrality and articulating a basic minimum of substantive principles which all public institutions including the judiciary would uphold and advance. The taboo on ‘legislating morality’ would be done away with. The individual as a legal person would be situated in his social context rather than being viewed as a floating bundle of rights in a vacuum. To this end, greater legal importance would attach to many of the hierarchical institutions the right is fond of such as the family and the Church but also to some which have long been anathema to it, chiefly trades unions, but which are centres of stability and community for many. In such a scheme, it is conceivable that a ride-sharing company worth fifty billion dollars might not be treated as a private party perfectly symmetrical to one of its two million ‘partners’ in a law-suit regarding labour protections.
“Law in its ideal form might be described as a ‘once-and-for-all’ command that is directed to unknown people and that is abstracted from all particular circumstances of time and place and refers only to such conditions as may occur anywhere and at any time.”
Friedrich A. Hayek, The Constitution of Liberty
The law as a shield of the ‘private realm’ against the ‘public institution’ has been a tenet of what we might call the ‘long 1990s’, the age following Eric Hobsbawm’s long 19th and short 20th Centuries. This era, which began with the collapse of the Soviet Union and has been marked by market triumphalism and globalisation, has at every level added layers of legal protection between the individual or the corporation and the state. Internationally, this has come in the form of beefed-up Investor-State Dispute Settlement regimes; nationally it has manifested differently across jurisdictions. Constitutional libertarianism in the United States, the expansion in the writ of the Public Interest Litigation in India, and vigorous use of the Human Rights Act by judges in the United Kingdom are all examples of it. The record of this legal-intellectual current is debatable: some might borrow Tennyson’s words and say that ‘freedom [has] slowly broaden[ed] down, from precedent to precedent’ while others, like the former British Judge Lord Sumption, might view it as judicial encroachment on the democratic state.
There has been an increasing amount of judicial overreach on the democratic state in some countries.
What cannot be in significant debate during the current crisis, however, is that the long 90s are over. If they were bruised by the attacks of September 11 and bloodied by the Global Financial Crisis, they have been put out of their misery by the pandemic. Citizens are of necessity expecting more from the states that have shut down life as they have known it in the face of the coronavirus. Governments, whether of the right or left, of the East or the West, are being forced to unlearn the orthodoxies of that long decade.
Many who yearn for the revivification of that earlier hegemonic liberalism have reacted sharply to Vermeule’s contribution to the debate. They view it as the not-so-thin-end of the wedge of right-wing authoritarianism. They believe that unless the judiciary, to use an expression ubiquitous in legal scholarship, is a bright ‘red light’ against government interference in the private realm, the disillusioned children of 1989 – Viktor Orban and Steve Bannon among them – will run roughshod over any semblance of individual liberty.
Since coming into power, Viktor Orban has limited the power of Hungary’s Constitutional Court. Francois Lenoir/ Reuters
This view suffers from a surfeit of confidence in present institutions and a lack of ambition for the future. The paring back of the social safety net, labour market reforms aimed at ever-greater flexibility, and unrestricted trade and capital flows have resulted in the development of a permanent precariat in some of the world’s most prosperous societies. Citizens of such hollowed-out societies have, to an alarming extent, lost faith in present institutions. Those who disagree with Vermeule’s view of the law whether from the right or the left should, rather than defending a system simply because it presently exists, articulate their own positive view of what the ‘common good’ might look like. Rather than entrenching themselves in a rigid individualist legalism, they should take up this invitation to a grand public debate enthusiastically. Free trade, immigration, and the expansion in the reach of human-rights jurisprudence are legitimate fields open to democratic disagreement. If they are worth defending, their advocates should welcome the opportunity to prove their benefit to the people, rather than relying on the World Trade Organisation, the US Supreme Court, or the European Court of Human Rights as escape valves from democracy.
Jay Ojha is a contributing editor at Catharsis Magazine.