How the Constitution Advances the Common Good

M odern conservatism has defined itself, in large part, by fidelity to the United States Constitution. We seek to understand and sustain our nation’s governing document against any forces that would undermine it. The best-known term for this project has been “originalism,” a word and underlying idea that came to dominate in right-leaning legal and constitutional thought. Some on the right, however, argue we must question this project, thereby questioning our self-understanding itself.

This group is broadly known as post-liberals. They think our commitment to originalism has served us ill. Patrick Deneen, for example, says originalism is “toothless” at best and “consistently drifts leftward” at its worst. Integralists blame originalism for the perceived lost ground in law and society over the past 40 years. In so arguing, they assign a core inadequacy to the Constitution. By their lights, the Constitution — at best — can only preserve, not pursue. And even that power seems feeble, given the Left’s social and economic victories. Ignoring or underselling ground gained by conservatives on those fronts (consider this term of the Supreme Court), post-liberals lament conservatism’s inability to achieve moral goals, to pursue a “common good.” First and foremost, they see this need as a counter to the ongoing march of the Sexual Revolution. Their critique paints originalism as morally agnostic at best or, at worst, trending toward ethical libertinism. Originalism thus paves the way for unfettered pornography and various confusions regarding sexual identity, to name only a few societal ills thereby laid at originalism’s feet. Integralist Adrian Vermuele gives the particular instance of Neil Gorsuch’s opinion in Bostock v. Clayton County, pegging it as “quite obviously parroting the orthodoxy of the present” on matters of sexuality.

In their attacks, such voices share one common ground with the Progressives: Their real problem is with the Constitution. To be sure, they do not reject the Constitution on the same grounds as the political Left, which sees in originalism and the Constitution the remnants of old bigotries. Instead, the problem with the Constitution is that it enables new progressive ideologies to flourish. This point seeps out when the criticism goes beyond Conservatism and to a broader attack on the early modern political thought that informed the Constitution, such as the natural rights’ theory fundamental to the Founders’ view of government, calling it selfish — even amoral — individualism. They lament the pluralism, and thus the freedom, enabled by ordering ourselves according to that theory. To correct the Constitution, they in essence argue we must go beyond it. We must find both proper purposes and adequate powers to realize the good in longstanding traditions, religious faith, moral reasoning, or some other independent (often ancient) source.

They are gravely mistaken. One need not search beyond originalism because the Constitution provides more than adequate power to do good. The Framers did not form the Constitution as amoralists or libertines. They founded their republic in ordered liberty. By this, they meant freedom grounded in the deep and rich soil of natural law. They held that human happiness isn’t realized through selfish self-actualization, but in living according to moral virtue. True liberty, therefore, comes in thoughts and actions exemplifying prudence, courage, justice, and temperance — those qualities that make us not just human, but better humans. John Adams, for example, wrote, “Public virtue cannot exist in a Nation without private Virtue, and public Virtue is the only Foundation of Republics.” George Washington, in his Farewell Address, wrote that “virtue or morality is a necessary spring of popular government.” Consistent with these beliefs, the Founders wove the capacity to cultivate this liberty throughout the constitution they created.

One must begin with the Constitution’s preamble, which establishes a comprehensive list of benevolent purposes for our government to follow. To be sure, each involves an element of preservation. After all, we conservatives take the moral order as a given, a heritage of nature and ancestor. But we also must see a proactive element to the preamble that permits the pursuit of those given goods when our society or laws become disordered. To “insure domestic Tranquility” means more than simply keeping the streets safe from violence. It includes the positive moral habituation that inculcates a will in the people to obey just laws. Peace comes through virtue. The goal to “promote the general Welfare” cannot be understood apart from positive, not just preservative, government action. The Framers clearly understood that such promotion involved a just and moral understanding of human nature, human ends, and the means that both accorded with the first and fulfilled the second. After all, another purpose stated in the preamble articulates that the Constitution will “establish Justice.” Indeed, the Founders always saw this goal as moral in its grounds, with procedures tailored toward its realization.

Moreover, the rest of the Constitution gives muscle and flesh to these purposes, creating institutions and vesting them with powers intended to fulfill the preamble’s goals. Here, Vermeule plays fast and loose with the Constitution. He and others adopt the language of the preamble without connecting it to the rest of the text. They thereby intentionally make the Constitution into Play-Doh — a set of vague claims malleable to their own particular visions.

A better path recognizes the extensive potential for good in the Constitution’s power-granting clauses. Let us consider, for example, the Commerce Clause. Yes, the national government has gone beyond its constitutionally prescribed boundaries of regulating interstate and international commerce. But its legitimate reach still extends far and wide. A great deal of the everyday experience of the American people involves some form of commercial activity. Our jobs, our home life, and our leisure time all partake of — to some, often-extensive, degree — an increasingly nationalized economy that brings more of this commerce into the sphere of national legislation. This power gives Congress substantial authority to pursue the preamble’s goals by regulating our commercial interactions. What constitutes justice in the commercial realm? What can we do to promote the general welfare and ensure domestic tranquility? Here, our laws need not merely restrain. They may encourage frugality, charity, and other benevolent purposes. Originally understood, they thereby may distinguish the harmful and the beneficial according to traditional notions of vice and virtue. To regulate how commerce may be done on these grounds gives Congress significant power to achieve positive goals.

Consider, too, the constitutional power to secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Constitution gives a particular purpose in this clause, namely “To promote the Progress of Science and useful Arts.” It’s hard to overstate the degree to which writings and inventions influence the character of society. Indeed, they form an integral part of our ethical education. Certain books, whether or not they achieve a popularity on par with Uncle Tom’s Cabin or Fifty Shades of Grey, can both shape and reflect our national consciousness, often in profound ways.

Furthermore, consider the influence of the Internet in our thinking and actions, especially in using social media. The Constitution here demands we consider what good particular written compositions or invented entities hold for the people. In other words, do such works promote the general welfare? Again, these considerations need not come from a libertine position but instead may pursue a vision of ordered liberty. Historically, the courts have recognized moral formation as one legislative goal that may be sought through this clause. Government may consider, then, whether to protect certain writings based on their social merit. They may ask whether particular inventions help or harm the minds and bodies of the American people — our children in particular.

Yet we must also not forget the role states play in this system. For we should not assume the preamble’s goals do not extend to them, even if the way the Constitution bestows power differs between state and nation. The Constitution must vest the national government with all its powers, including those used to restrain wrong and promote good. By contrast, the Tenth Amendment reserves all powers not given to the national government to the states or the people. “The powers delegated by the proposed Constitution to the federal government are few and defined,” James Madison wrote in Federalist No. 45. “Those which are to remain in the State governments are numerous and indefinite.” Included in the states’ powers are “all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” Even with massive expansion in the national government, the states still cover most tasks related to the fundamental rights of the American people. And they still possess extensive authority for promoting improvement and prosperity among them.

Thus, the states have often taken the lead in regulating the health, safety, and public morals of the people, and still do. These powers, reserved for them, have typically been termed the so-called “police powers.” One might object by noting the limitations placed on these powers by the 14th Amendment in its due-process and equal-protection clauses, including the former’s incorporation of restrictions in the Bill of Rights to the states. Courts have certainly abused this power. But their abuse has come mainly through the foisting of a vision of justice — and thus, legislative power — foreign to the Constitution. The Constitution meant these restrictions to limit immoral, unjust action by the states who might violate the fundamental rights of persons within their borders. The Framers, both in 1787 and 1868 (when the 14th Amendment was ratified), never intended these prohibitions to deny states power to protect and promote the good. Instead, they hoped these limitations would help focus the states on their proper tasks.

Originalism can refocus the states — and the national government — on their proper tasks again. Contrary to the Integralist critique, originalism rightly done begins from a moral framework. Hardly embodying the contemporary sacred cows of progressivism, originalism seeks to recover the principles articulated by the American Founders and those who passed subsequent constitutional amendments. It was originalists like Justice Scalia who fought to retain a place for morals-based legislation when majorities in cases like Lawrence v. Texas discarded them. It was justices like Alito and Thomas who have grounded the Second Amendment in a natural right to self-defense, discovered and defended through their originalist methodology. And it was originalists who removed the stain of Roe v. Wade from our nation.

In the final analysis, the supposed “insufficiencies” of originalism — and the Constitution by implication — stem from the serious errors of those who misunderstand our governing document and abuse it. Thus, as conservatives, we must understand that any “lost ground” is the result not borne from any failures of originalism, but from the triumph of unconstitutional ideologies. These misleading visions warp the Constitution’s ends, trading ordered liberty for the celebration of vice. They ignore its means, reading into the Constitution any power that they think will achieve their extra-constitutional purposes. Never may we succumb to that siren song whose noxious lyrics would portend our republic’s doom. Our Constitution has not failed us. We, unfortunately, have failed it, and thereby Americans both present and future. Conservatives shouldn’t move beyond our Constitution, but through originalism, they should seek another, worthy task: its restoration.