Notes on a New American Right

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How can we square the ‘highest good’ with the Constitution as currently interpreted?

Much like his recent essays and debates with National Review senior editor David French, Sohrab Ahmari’s new First Things essay “The New American Right” asks the right questions, but the constitutional direction of his answers cuts against the tide of how America has politically fractured over the past half century. He fails also to integrate into his analysis the classical arrangement of our constitutional order, which emphasizes that we are neither a consolidated modern republic nor a loosely collected set of political fragments. The problem with national conservatism, of which Ahmari is a leader, is that it actually builds on the political and constitutional pathologies of American progressivism, even while it points to socially conservative ends of restoring family, community, and what I would call relational personhood, as opposed to an autonomous individualism.

Ahmari, a Catholic convert from Marxism and the idol of progress, is all about the good and the true as the paramount political virtues. As he recently told us, we need a politics of “the common good and ultimately the Highest Good.” How, the constitutionalist wonders, do you plan to bring the thing about? Ahmari was, apparently, surprised that some likened his “Highest Good” formulation to “a call to establish an American Ba’ath Party.” Really. Ahmari now means to provide a more suitable understanding of his position. We need a “politics of limits” and “not of individual autonomy and deregulation,” he says.

Ahmari should consider what has directly produced the “fragmented, atomized, and morally disoriented” social order that he correctly identifies. A new American Right will need to think in a manner that accords with who we are now as a divided people: economically, socially, culturally, and politically. That constitutional answer doesn’t find its meaning in Washington exclusively, but must also incorporate state capitals and the crucial institutions of civil society into its platform. It doesn’t build a conservative nationalism on top of a rotting progressive constitution, one that the people have already lost faith in, having observed its failures for decades.

Consider that the biggest impediment President Obama faced wasn’t only the Republican party, but the disbelief in government itself by the American people. He couldn’t achieve New Deal 3.0 because the citizenry themselves already knew the basic incompetencies of American government. We can begin, then, with the political mistake of the 20th century: centralization and its many dysfunctions revealed in its attempts at social, economic, and family engineering. America has lived under an overbearing nationalism for quite some time. The results have been a fracturing of our country because of these false attempts to mold it into a determined, telocratic end. The humane conservative response pulls together the deeper meaning of our constitutional history for a more truthful ressourcement.

Conservatives must provide, Ahmari argues, “a substantive account of the true ends of man and of the political community.” We should speak more directly about who we are constitutionally, though. Our union is in the citizen in the states, and the states require the union to make their existence possible. That means significantly on commerce, defense, and fiscal policy we need a national conservatism to shape our politics and policy. This much is constitutional and proper. But we are a union of states also.

Much of what Ahmari rejects, even if he doesn’t directly name it, is the secularist and autonomizing Court decisions of the Supreme Court and the cultural and political conditions these decisions inaugurated. What should be of note here is that these decisions were not just wrongly decided cases as a matter of constitutional interpretation, but they nationalized a blanket secularizing and dislocated individualism. These Court opinions and the politics they underwrite have to be pared back, but not for Ahmari’s conservative nationalism. Rather, the focus should be to recreate the conditions for the self-governing powers of small-scale forms of community and association. That is, we need a subsidiarity ethos that makes constitutional sense of who we are in our local and personal existence, as citizens and creatures.

On secularism, recall that former Alabama Klansman Justice Hugo Black enlisted no less a personage than Thomas Jefferson in a comprehensive secularist ethos to remove prayers from the public schools in Engel v. Vitale (1962) and, ultimately, to remove religion from the public square. The Lemon test announced in Lemon v. Kurtzman (1968) aimed to effect a total separation between religion and state, a principle that ironically turns the First Amendment’s religion clauses into creedal articles of political atheism. Its three-part test inherently leads to a secularizing result: Does the law have a secular purpose? Does it advance religion? Does it excessively entangle government and religion? Whatever the current constitutional status of Lemon, the principle of maximum separation between religion and state that it helped establish remains the baseline in our discourse, the way we think and speak about religion’s influence.

A series of other decisions, most prominently in Roe v. Wade (1973), intoned that human sexuality was not rooted in family and the obligations it creates, but in an autonomistic individualism that, ultimately, separated sexuality and parenthood from a covenant rooted in marriage. In this light, Justice Kennedy’s Andy Kaufman–esque postmodern philosophizing in Planned Parenthood v. Casey (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”), or his opening statement in Obergefell v. Hodges (2015) (“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity”), merely fulfills the individualizing gleam that began in Justice Harry Blackmun’s eye in Roe. Certain hard facts flow from these developments.

On religion and sexuality, notions of the common good and Highest Good, as voiced by Ahmari, aren’t helpful, to put it mildly. But all is not lost. As a matter of constitutional law, secularist jurisprudence seems poised for retrenchment of some kind. And this could augur the return of religion as something that is an accepted part of our public life, rather than a potentially sinister force that must be kept under wraps by the federal judiciary and excluded from discourse by Rawls’s public reason.

We already have the fundamental sources of national renewal in our founding documents. There is no need to reinvent America under abstract rhetoric such as “highest good” that is easily mistaken as integralist posturing that is, ultimately, difficult to reconcile with American constitutionalism. Ahmari would do well to recover the meaning of the Christian contribution to our Declaration of Independence and Constitution. The equality of human persons can’t be understood on the terms announced in our Declaration apart from what Alexis de Tocqueville described as “the advent of Jesus Christ upon earth . . . to teach that all the members of the human race are by nature equal and alike.” Devotion to natural rights, ultimately, is founded on man’s God-breathed image. Crucially, though, no final Enlightenment philosophy, ideology, or religion is prescribed for American citizens in its Declaration or Constitution. This is another aspect of the Christian contribution; we resist any notion of a civil religion. Our souls have ends higher than the government’s reach. The Constitution’s religion clauses strictly limit the federal government regarding religion precisely because it is acknowledging the inestimable value of our souls and our need to know the truth about ourselves, something we do with others in religious congregations or bodies.

Against the strict-separation view that has held sway for too long in our jurisprudence is an alternative understanding of the religion clauses best described by John Courtney Murray as “articles of peace.” The goal was never the notion that religion must be purely private and that government must have no interaction with religion, but the prevention of one religion from enforcing its creedal commitments on the country through the federal government and, after incorporation of most of the Bill of Rights through the 14th Amendment, the state governments. Politics and religion are both rich sources of meaning, etched in human souls. Separating them cleanly, as the modern mind insists, is impossible. The wiser course is to consider how one might aid the other in the requirements of political and social order.

Could the answer come from a strange source? Peter Lawler and I argue in A Constitution in Full that Justice Kennedy’s concurring opinion in Burwell v. Hobby Lobby (2014) and his majority opinion in Obergefell v. Hodges (2015) point toward a religious freedom rooted in relational personhood, the dimensions of our human nature that flourish in family, religion, community, work, and politics. That is, Kennedy clearly outlined the case in his Hobby Lobby concurrence that religious belief led to practice and to the formation of personal identity: “In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.” Kennedy’s support for the majority opinion’s result owed to the validity of the person’s decision for religious belief and practice, which the state was greatly limited in circumscribing. He didn’t go nearly far enough, though.

Many would convincingly argue in opposition that religious freedom is now in doubt with Obergefell and with the onset in the decision’s aftermath of the transgender movement. There is the increasing likelihood that certain religious Americans and religious institutions with a dissenting understanding of sexuality will be made to conform to the demands of the LGBTQ movement. But Kennedy’s majority opinion in Obergefell argues that marriage is a relational institution that is crucial to human flourishing, same-sex or straight sex, and thus should not be prohibited by law to same-sex couples. Yet that should also mean that other relational institutions, such as religion — and what’s more relational than religious practice? — can’t be unduly burdened by legal discrimination. That means our relational nature as human persons should be free to find expression in religious institutions. Religious institutions should not be told how they can practice their dissenting understandings of human sexuality. If civil marriage can no longer be, in part, defined by traditional Jewish-Christian teaching, then religious understandings of marriage can’t be reshaped or regulated by the new civil understanding of marriage.

The common good, finally, of our constitutional order at its best recognizes that we long to know who we are and that we do this in loving relationships under obligations with others, most notably in religious communities. The new American Right will set itself the goal and calling to do its level best to protect this crucial understanding of the person and the free and dignified constitutionalism it supports.

Richard M. Reinsch II is the editor of the Law & Liberty website, the host of Liberty Law Talk, and the co-author, with Peter Augustine Lawler, of A Constitution in Full: Recovering the Unwritten Foundation of American Liberty (University Press of Kansas, 2019).

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