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HAMMER: Government Exists To Establish Justice, Not Promote Liberty
Engraving from 1894 showing the School of Athens by the Medieval artist Raphael.
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The ushering in of the Trump presidency has caused many conservatives to pause and soberly reflect upon both the future of American conservatism and what it even means to be a conservative, in the first instance. The intramural conservative dialogue reached a crescendo earlier this year when New York Post Op-Ed Editor Sohrab Ahmari declared his opposition to pluralistic/values-neutral “David French-ism” and his preference, instead, to “fight the culture war with the aim of defeating the enemy and enjoying the spoils in the form of a public square re-ordered to the common good and ultimately the Highest Good.”

The recent hullabaloo on the Right over pornography regulation/banning, a dialogue that owes its elevation in no small part to those of us here at The Daily Wire, is a proxy fight that represents an apotheosis of the ongoing Ahmari/French dialectic. And that intellectual divide, which is multifaceted but might be simplified as pitting the centrality of classical liberal procedural norms (French) versus the centrality of a morally assertive vision of justice and the common good (Ahmari), is of course itself a proxy fight for the future of conservatism.

On Friday, Daily Wire Editor-in-Chief Ben Shapiro weighed in with an incisive essay, “The Problem With ‘Common Good’ Conservatism,” that bifurcates between “common good” conservatives and “rights-based” conservatives. Working within the framework of this dichotomy, Ben made a powerful argument in favor of the latter.

I’d like to offer a reply.

America’s negative rights-based framework of government takes its most recognizable form in the Declaration of Independence, wherein Thomas Jefferson famously asserted (emphasis added) that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” To be sure, the Declaration deserves much in the way of admiration — for Abraham Lincoln, the greatest statesman in the history of the republic, it served as the “apple of gold” for  which the Constitution merely served as the surrounding “picture of silver.” The Great Emancipator rhetorically invoked and substantively relied upon the Declaration throughout his political career — culminating in his helping shepherd the 13th Amendment through Congress and his seeing through the Union to victory in the Civil War itself.

At the same time, Jefferson, who was undoubtedly influenced by Lockean theory and other Enlightenment ideals, held many deeply heterodox views that were in no small degree of tension with his contemporaries. The insatiable revolutionary who thought that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants” held an intensive disdain for Burkean-style epistemological humility and incrementalism. Jefferson disagreed with those, such as John Adams, who believed that America’s inheritance of the unique English common law system — a rich tradition of common law thinkers including William Blackstone, John Selden, and John Fortescue — was Americans’ more tangible safeguard of their rights. Indeed, one need only take a cursory glance at the English Bill of Rights of 1689 to recognize just how strongly that charter came to influence our own Bill of Rights.

Alas, ever the Francophile and gallivanting off at the time in pre-revolutionary Paris, the author of the Declaration was actually not even present at the 1787 Constitutional Convention in Philadelphia. And suffice it to say that the men who actually crafted the Constitution held slightly different viewpoints as to the reasons why governments are instituted among free men.

In perhaps the most famous Federalist Paper of them all, The Federalist No. 51, Jefferson’s fellow Virginian James Madison quite bluntly stated (emphasis added): “Justice is the end of government. It is the end of civil society.” Similarly, in The Federalist No. 57, Madison announced the Constitution’s ultimate intention with unmistakable clarity — and, in so doing, he directly used the phrase that has elicited so much recent consternation (emphasis added): “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society.” Similarly still, the Constitution’s Preamble enumerates the substantive purposes of “establish[ing] Justice” and “promot[ing] the general Welfare” before it asserts the goal of “secur[ing] the Blessings of Liberty.”

In other words, as I wrote in September for the Claremont Institute’s American Mind online journal: “[T]he Founders did not put the procedural norms of English common law first. On the contrary, they built our regime directly on the foundation of the substantive political virtues: Justice, human flourishing, and the pursuit of the common good.”

The upshot is that America’s Founders did not view the governmental pursuit of justice, Aristotelian human flourishing, and the common good as in any way whatsoever being in conflict with the Declaration and Constitution’s over-arching procedural framework of securing negative rights. The two concepts are directly related to one another. As scholars Ryan T. Anderson and Robert P. George wrote in the most recent issue of National Affairs, there are “what Aristotelians call eudaimonistic (or human flourishing) grounds for the limitation of certain governmental powers — and, not unrelatedly, the protection of certain civil liberties. The judgment is that these limitations tend, overall and in the long run, to best protect integral human well-being.”

It is the pursuit of justice, not the promotion and excessive expansion of liberty above all else, that most animated the Constitution’s Framers. For the Framers, expansions of liberty beyond a bare-bones natural law threshold could generally only be justified if they were conducive to the pursuit of justice and the common good. These men were familiar with Aristotle’s wisdom that “a state exists for the sake of a good life, and not for the sake of life only” — and with Burke’s admonition (emphasis added) that “men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love of justice is above their rapacity.”

Similarly, the Framers loathed licentiousness and were extraordinarily careful not to recklessly conflate liberty, properly understood, with licentiousness. They were invariably terrified of the possibility of liberty sliding toward licentiousness. George Washington himself warned in 1783 that “arbitrary power is most easily established on the ruins of Liberty abused to licentiousness.” And almost eerily foreshadowing today’s staunch libertarians who oppose even the most anodyne attempts to regulate pornography, Founding Father Oliver Ellsworth warned: “It is not strange that the licentious should tell us a government of energy is inconsistent with liberty, for being inconsistent with their wishes and their vices, they would have us think it contrary to human happiness.”

But a more muscular and morally assertive form of government can be consistent with liberty, justice, and human flourishing alike. At the time of the American Founding, blasphemy and obscenity were generally jail-able offenses. And contra classical liberal/civil libertarian historical revisionism and the nostrums espoused in the erroneously decided 1964 Supreme Court case of New York Times Co. v. Sullivan, the First Amendment is perfectly consonant with the robust common law of defamation.

Jeffersonian idiosyncrasies aside, the Founding Fathers were therefore not overly inspired by Lockean classical liberalism and high-minded Enlightenment theorizing. They were Anglo-Saxon Christians who inherited a unique cultural and common law tradition from their English forebears and sought to incrementally improve, in distinctly Burkean fashion, upon the political work of those forebears. In so doing, they were not per se averse to prudential statesmen wielding the levers of governmental power to nudge the citizenry toward the pursuit of justice and the common good — especially, of course, within the police power ambits of the various states.

In short, my reading of history is that America’s Founding Fathers would have been baffled by the notion that the pursuit of justice or the common good is a governmental priority in any substantial state of tension with a governmental priority of securing negative rights. Our political leaders were expected to pursue “the common good of the society,” as Madison framed it in The Federalist No. 57, while also being sure to protect and secure the preexisting negative rights of a free citizenry.

Knee-jerk promotion and expansion of liberty run amok toward libertinism, which, much to the chagrin of Objectivists and strict libertarians, has never been the sole and exclusive political priority of any serious political thinker, was utterly rejected by the Founders as a preeminent goal whose pursuit and attainment justified the establishment of governments among men. Instead, it was justice and human flourishing that most animated them — and the pursuit of justice and human flourishing quite naturally fit within the Declaration and Constitution’s over-arching framework of negative liberty. In the specific context of the pornography debate, there is, of course, no natural or First Amendment constitutional “right” to smut.

The Founding Fathers were thus both “common good” conservatives and “rights-based” conservatives. Which is what we should want our political leaders today to be, as well.

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