This past March, The Atlantic published an essay by Adrian Vermeule, a Catholic professor of constitutional law at Harvard University, introducing the idea of “common-good constitutionalism” to an audience that I’m sure had never read anything quite like it.
At its most basic, Professor Vermeule’s argument unfolded something like this:
Human flourishing, or the “good life,” necessarily entails living a life of virtue—that is, a life ordered toward realizing one’s higher human nature which, according to natural law and the ius gentium, is the same for all persons, at all times, and in all places.
Orthodox. Faithful. Free.
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The common good is defined as the corporate wellbeing of the political community, defined largely in terms of its collective ability, through the state, to promote the ability of all its members to live such a life of virtue.
The proper and ordained end of any just constitutional order is to advance the common good, and thereby the ability of all citizens to live a life of virtue.
The constitutional order, therefore, must empower the state to do whatever it needs to do—including legislating morality—in order to advance the common good.
While I am in agreement with certain of Professor Vermeule’s arguments, I’m afraid that I can’t follow him all the way through to his conclusions about the desirability of a constitutional order built on promoting the “common good,” at least not as he defines it. The notion of the common good, of course, is a notoriously slippery one. It can mean, inter alia: the sum of the particular common goods of each of the members; the universal, objective good of all persons, at all times, and in all places; the good of society as a corporate whole or as a persona ficta; or the common utility of all of the members of a society. But the modern Catholic tradition of political thought generally holds that, given the ubiquity of sin and the lack of agreement in our fallen world regarding what constitutes the “good,” the final characterization is really the only viable one. Although I’m not going to enlist Saint Augustine in my cause, I will use his imagery here to underscore this point. In an imperfect world in which the citizens of the heavenly city (i.e., those whose first love is God) must live cheek by jowl with those of the earthly one (i.e., those whose first love is man), the only common good that is truly possible is one that accepts that all that is possible is a qualified agreement on a limited number of intermediate goods that serve a “public good” (bonum publicum): peace, the satisfaction of basic material needs, orderly social intercourse, and security from attack. But this, as we shall see, is not the understanding of the common good underpinning common-good constitutionalism. It is not, simply put, what Professor Vermeule is calling for.
In order to demonstrate the error of the common-good constitutionalism argument, I’m going to enlist an unlikely ally: Saint Thomas Aquinas. I say unlikely because, at first glance, Aquinas may seem an odd choice given that the first three of the common-good constitutionalist claims listed above would seem broadly in line with the political thought of the Angelic Doctor. They echo, for example, Thomas’s essentially Aristotelian anthropology, which holds that human beings possess a distinctive purpose or nature (telos) that must be realized if they are to be flourish qua human beings. As Aristotle, Aquinas, and all subsequent Aristotelian-Thomists agree, humans are by their very nature ordered toward realizing their natural capacity to reason (that is, to be rational), to living their lives according to the dictates of reason (that is, to living lives of virtue or moral excellence), and to associating with other human beings (that is, to living as a “political animal”) to enjoy the fruits of reason.
They also echo Aristotle’s claim that at least part of the purpose of associating in political communities is to facilitate the fulfillment of its members’ distinctively human nature—that is, their full flourishing as rational, moral, and social animals—through education and through laws that prescribe certain actions and proscribe others. In the Thomistic view, the common good of the political community was not merely the provision of the material necessities of life, but rather the promotion of what Aristotle called the “good life” or the “life of virtue.” Commenting on and applying these arguments in the later medieval context, thinkers like Aquinas tended to agree with Aristotle’s definition of the bonum commune: for them, the common good was primarily about cultivating moral goodness and the life of virtue.
To be sure, there were significant debates among these later Aristotelians. They typically disagreed with the philosopher, for example, on the nature of complete human fulfillment. While Aristotle emphasized humanity’s independent capacity to fulfill its own nature through virtuous living, medieval political thinkers assumed and insisted that true fulfillment was dependent both on God’s grace and, ipso facto, on the Church as a sign and instrument of that grace. At a very basic level, however, the Thomists agreed with Aristotle that the promotion of true human fulfillment, flourishing, or “happiness” required the state to engage in moral regulation and education, coordinate the complexities inherent in political life, provide welfare for those in need, promote economic prosperity, uphold the law, promote justice, maintain social peace, and defend the political community against aggression or injury from external sources.
The Angelic Doctor can be read, then, as having argued first that true human flourishing requires the pursuit of a life of virtue or beatitudo, that the role of the state is to cajole and compel citizens to lead such a life, and, finally, that the state exists to promote the “common good”—that is, to create the conditions of possibility for both the individual and collective good life. Taken together, this would seem to constitute three Thomistic cheers for common-good constitutionalism.
Despite these appearances, I’m going to enlist the Angelic Doctor in the counter common-good constitutionalism cause. The reason for this is twofold. First, since the papacy of Leo XIII, Aquinas’s thought has been uniquely influential in the world of Catholic social and political doctrine. Because of this, he cannot be treated as just another voice to be deployed in support of one side or another in the current debate over what really constitutes the common good. Rather, Aquinas’ political thought, placed in the context of current Church teaching, must be considered particularly authoritative, if not actually dispositive.
A second reason for recruiting the Angelic Doctor is that, contrary to first impressions, his arguments actually highlight the divergence between the Church’s modern teachings and their philosophical underpinnings on the one hand, and the theory of common-good constitutionalism on the other. Now if what Professor Vermeule is arguing is that the state must be competent to perform the functions to which it is properly ordered, then I’m sure the Angelic Doctor would not disagree. It sounds, however, as if he is advocating something more akin to an unfettered state charged with legislating and policing a Christian-naturalist moral order. As he puts it in The Atlantic article:
common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits…. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods.
This is simply incompatible with the Thomistic tradition, a tradition that placed strict limits on the competence, jurisdiction, and power of the state, even when purportedly acting in the interests of “individual and common goods.” Aquinas believed the common good or, more accurately, the “public good,” to be both public and limited—public in that it was distinct from the private realm of the individual, the household, and the Church, and limited in that it pertained only to public acts (rather than private ones) and only to earthly (rather than heavenly) ends.
The Angelic Doctor did not, then, view the prince as reigning over some sort of moral Leviathan ordered toward encouraging “subjects to form more authentic desires for the individual and common goods.” Rather, for Aquinas, the state was a framework within which some citizens could pursue the good life (beatitudo, in his language) while others could opt to follow a different course. Its moral purpose was nothing more than providing those narrowly tailored public goods (i.e., life, peace, just order, and security) necessary for human flourishing; its moral limits were nothing less than the self-evident truth that the domains of the individual, the family, civil society, and the Church are reserved to them and them alone (under God’s sovereignty).
For Aquinas, then, a fairly bright line could be drawn distinguishing what the state can and cannot do. In addition to providing internal order and security from external attack, the state can legislate and enforce only such norms of conduct as are necessary for a government to govern (from the Latin gubernare, to steer) effectively. In other words, in the moral sphere it can only act to promote public or civic—not personal or private—virtue, i.e., to promote, even legislate, only those relatively mundane virtues needed to be a good citizen rather than those truly extraordinary virtues needed to be a pious saint.
And this, even though the Angelic Doctor affirmed that there was such as thing as a common morality (i.e., a universal common good) that all human beings must respect in order to flourish as human beings. Saint Thomas simply rejected the notion that the state can legislate or otherwise impose this common morality. And, to anticipate a perhaps obvious objection, this does not mean that the state cannot legislate on any moral matters. Aquinas believed, for example, that murder is morally wrong and could be prohibited by law, but this legal prohibition was justified on the grounds of the security of the person and the social peace of order—both being consistent with, and derivative of, the proper and limited ends of the state. A similar argument could be made with respect to pornography: to the extent that it ruthlessly exploits women in the industry, and promotes an exploitative vision of women in society more generally, it can be said to be contrary to peace, order, and the basic conditions necessary for human flourishing, and therefore subject to legal proscription. In neither case is it necessary to legislate on the basis of the argument of common-good constitutionalism that “promoting a substantive vision of the [moral] good is, always and everywhere, the proper function of rulers.” The Thomistic bonum publicum is grounds enough.
In fact, any straightforward reading of Aquinas reveals that, although a man of his time and place, he would be very much at home with the ordered-liberty constitutional order established by the Framers of the U.S. Constitution. Indeed, the Angelic Doctor would have agreed with the Framers’ endorsement of a state limited in competence and authority, ordered around the rule of law, founded on the assumption that individuals are naturally endowed with the capacity to govern themselves, and deeply rooted in the belief that there is, and ought to be, a realm of autonomous institutions between the individual and the state. Neither Aquinas nor the Framers envisioned or endorsed anything like the essentially Catholic integralist constitutional order proposed by Professor Vermeule under the heading of common-good constitutionalism. Nor did they succumb to the temptation to let the perfect be the enemy of the good. Both Aquinas and the Founders realized that ordered-liberty constitutionalism had little chance of creating a perfect society, that is, a society needing either no government (as was the case before the fall) or a Catholic one (which won’t come about until the Millennium). I’m also certain that they believed that, in the interim, both of these options were practical and/or theological impossibilities, and that, as Winston Churchill might have put it, ordered-liberty constitutionalism was the worst system imaginable—except for all the others (including common-good constitutionalism).
For an integralist rebuttal, see “A Realist’s Case for the Confessional State” by Jonathan Culbreath.
Image: Washington as Statesman at the Constitutional Convention by Junius Brutus Stearn