Some Notes of Caution about Reviving Blue Laws

P ost-liberals, led by law professor Adrian Vermeule and writer Sohrab Ahmari, have begun to offer concrete policy proposals that would instantiate their agenda for the common good as they see it. Vermeule, in a tweet, and Ahmari, in the American Conservative, advocate a return to “blue laws,” which mandate that businesses close on Sundays in honor of the Christian Sabbath. The exact contours of these laws are underdeveloped — federal, state, or local? which businesses? — but will surely come into greater focus as post-liberal thinkers cultivate this seed into a fully flowered policy item. But for now, the Sabbatarian salvo provides a good opportunity to examine what a truly conservative orientation to public policy looks like, and where post-liberals go off track.

To think about advancing an agenda that achieves the highest conservative aspirations for the state — order, prosperity, human flourishing, even public virtue — we must ask an antecedent question: Why do we conserve? Why should we insist on a connection between our traditions and our normative aims?

There is something intuitively appealing about venerating the past because it is imagined to be superior to the present. In the mid-20th century, we did not suffer from today’s afflictions of anomie, of broad alienation and demoralization. We had laws geared toward fostering social goods known to prevent what plagues us today. Blue laws, for instance, nudged people toward Sabbath observance and therefore rest, family time, church worship — all of which fight the social pathologies that have metastasized since we abandoned our traditional rules.

So the argument goes. Whether it is based on an accurate portrayal of the past and on a reliable diagnosis of our present condition is debatable. (In the Saturday Sabbath-observing circles of Orthodox Judaism most familiar to me, the past’s superiority to the present is an article of faith. Y’ridat ha-dorot, the successive decline of each generation since the revelation at Sinai, suggests that even if we did not diagnose any new problems or traditional correctives, taking on long-abandoned rituals would remain justified.)

But even if we assume that its factual basis is sound, this argument misunderstands what it means to conserve tradition, and why it ought to be appealing. Indeed, reaching into the past to find potentially re-moralizing policy ideas does not conserve so much as it restores — and that distinction matters.

Our traditions ought to inform our method of pursuing the state’s ends, because a people who live within their traditions are most likely to flourish. In the basic prescriptivist theory of conservatism, “habit and custom may be the wisdom of unlettered men, but they come from the sound old heart of humanity,” as Russell Kirk wrote in 1953, in an exposition of Edmund Burke. Borrowing from Burke’s discussion of prescriptivist principle balanced with prudence, Kirk concluded that “when society needs to act, it should resort to an expedience which is founded upon these traditions and habits of thought.” When desperate times demand “expedient” actions to correct our course — to cure our demoralization — those actions, which will impose new obligations on a population, must accord with popular habits.

Discordant obligations, which impose, from the top, rules on a population that neither wants them nor is prepared to alter their habits to abide by them are at worst tyrannical. At best, they are recipes for disaster. If conservatism’s highest aims for the state are order, virtue, and shared prosperity, those constitutive elements of the common good, one can hardly imagine a surer way to undermine that project. Minoritarian impositions, justified explicitly on the grounds of cultivating public virtue, are more likely to induce disorder, with great masses of citizens protesting that their will is not represented by whoever has introduced these seemingly foreign rules. Before policy can make men moral, or engage in “soulcraft,” the culture must be receptive to its authority. Without the sense that a policy that is instituted (or reinstituted) is concordant with the habits of the people and institutions who will need to follow it, the very theory that conceives of the past as the proper source of wisdom begins to fail — or, worse, backfire.

To restore is, emphatically, not to conserve, because restoring a tradition to a citizenry not accustomed to it loses the essential operative element of prescriptivism. That is, if the idea behind conservatism is to foster social goods by tailoring a policy’s demands on the citizen to his habits, that policy must be tailored to habits that still persist. Importing policy ideas from a past that bears little cultural connection to the present is no better than borrowing policy ideas from a foreign country with its unique norms, traditions, and customs. (Indeed, many post-liberals advocate that too.) Culture may sometimes be downstream of politics, as many on the right argue it is. But where politics is so disconnected from the regnant culture, what happens downstream is not a healthy culture but one in which rules are flouted and selectively applied. The citizens on whom political rules have been foisted become distrustful and disorderly.

The post-liberal project to restore bygone traditions resembles the progressive project to perfect society through the use of pure reason. Both rely on the imposition of rules to coerce a desired ethic, thinking that if we simply plug in ideas that seem to redound to the public benefit the public will respond favorably, as if governed by a mathematical equation. But people are not so easily tinkered with. Unintended consequences arise, as individuals respond to new stimuli in unforeseen ways. The new idea may not strike the public ear as planners thought it would. History is littered with examples. To borrow rules from a culturally distant era and drop them willy-nilly on a hostile culture is to ask for more backlash than post-liberals bargain for.

What I’ve put forth here assumes that blue laws are simply a bad fit for our national culture, an assumption that may be undercut in two ways. The first would be to argue that our national culture would be receptive to mandatory Sabbath observance. That strikes me as implausible but not impossible. In that case, let us merely caution our post-liberal friends that motivated reasoning is a powerful force. They should consider the evidence regarding this country’s remarkable cultural diversity.

The second way to undercut my assumption would be to argue that national culture is irrelevant because blue laws would be instituted at the state level. Leaving aside that state-based arguments seem out of place in a post-liberal movement predicated partly on criticisms of local practices, we can concede that if indeed there is a state whose culture really is receptive to reinstituting Sabbatarian laws, it will make a fine experiment in reviving morals legislation after decades of retreat.

This essay is not meant to pick on blue laws in particular, though. What I have posited is not about any specific policy measure. It is meant to offer an elaboration on conservative hesitation to embrace a post-liberal — frankly, reactionary — project of restoration. The prescriptivist response to post-liberal idealism should be to make sure the cultural tides are in your favor before taking the dramatic step of encoding norms into law.

Doing so often feels like a lost cause, which is why conservatives so often hear from critics on the right, “What has conservatism conserved?” But turning the cultural tide is not beyond our reach. Our culture is not irredeemable; certainly not our local cultures, on which we may have the greatest influence.

Religious Americans who want to re-moralize society can begin by persuading their neighbors of the value of a religious ethic. Christians are called to evangelize; they should do so proudly yet amiably. For my own Jewish community, I may report that we do not proselytize. Nonetheless, we can speak proudly of our observance and of how it has enriched our lives. And we can all demonstrate the value of Sabbath observance, of church attendance, of living lives that, in the aggregate, would make our society much healthier. We do so by engaging with the culture even when it is hostile, showing that adherents to a traditional moral code are unlikely to suffer those modern plagues of alienation and aimlessness. Once we have primed the culture, then we can think about using the levers of the state.