Over the past two weeks, a fascinating intellectual conflict has broken out on the Right over pornography, of all things. The debate was prompted by a letter from four Republican congresspeople to Attorney General William Barr, calling on Barr to “declare the prosecution of obscene pornography a criminal justice priority.”
This, on its face, should be unobjectionable. There is no fundamental First Amendment right to pornography — it is not merely an aspect of free speech, as the Supreme Court has explicitly ruled, and as Founding-era philosophy makes clear — and there are clear externalities to certain aspects of pornography. So, for example, it’s hard to imagine why any conservative, even a conservative with libertarian leanings, would oppose banning the dissemination of pornography to minors, or the ability of local communities to bar the posting of pornographic images in public spaces, or a legal crackdown on sex trafficking (I’m not aware of many libertarians, even socially liberal libertarians, who oppose any of these things).
But the issue of pornography quickly morphed into a more general argument about the role of government in American life, the right to do wrong, and the differences between federal and local government. Those arguments have purchase far beyond the rather contained area of pornography — an area where, again, you could easily make the case for regulation of aspects of pornography without violating libertarian and small government precepts, and without redefining the nature of American government. The arguments articulated for generalized pornography regulation, however, have consequences for issues as far-ranging as free speech and economic regulation.
But here’s how the debate has broken down so far.
What Is Government Here To Do?
The conflict over pornography has highlighted a split between so-called “common good” conservatives and “rights-based” conservatives.
“Rights-based” conservatives articulate a vision of government that mirrors the language of the Declaration of Independence. According to the Founding vision, we have certain rights that pre-exist government. Those rights are negative rights — rights we have against all other human beings, including the right to speak and think freely, the right to engage in free market activity, and the right to defend our lives. Government was instituted, in Founding theory, in order to protect those rights; violation of those rights by government made the government fundamentally illegitimate.
“Common good” conservatives articulate a vision of government steeped in pre-Enlightenment tradition. In this view, government is there to promote virtue, justice, and the common good. Government plays the role of teacher. Terry Schilling, executive director of the American Principles Project, argued recently in First Things that “a new conservatism is being born — one less interested in managing our nation’s decline than in using political power to promote virtue, public morality, and the common good. … Conservatives need to overcome their fear of governing the nation that elected them.”
For rights-based conservatives, such language is anathema. Who defines the “common good?” What makes “common good” conservatives believe that in maximizing the power of government to be “teacher,” they will be the ones who wield that power, especially given the fact that the Left has both grown and wielded such governmental power for decades? By throwing rights out the window and instead focusing on the “common good,” the only question is who controls the government gun. “Rights-based” conservatives promote the idea that duty is to be provided by culture, and liberty is to be protected by government.
For “common good” conservatives, rights-based conservatism neglects the fact that power can be used to shape cultural mores. “Common good” conservatives believe that focus on rights rather than protection of tradition, including protection via government, leads to the degradation of rights into wrongs, and leads to the slide from liberty into libertinism. “Common good” conservatives promote the idea that duty is to be inculcated by government, even if that means the massive growth of government. “Common good” conservatives, in other words, do not harbor the grave mistrust of government the Founding Fathers did — or the grave mistrust of government they should, given that the Left has typically wielded government far more effectively, and with far more damaging effects, than the cultural Right.
The consequences of this difference are grave for a variety of issues. Take, for example, economics. It is no surprise that “rights-based” conservatives are increasingly wary of “common good” conservatives on free markets; “common good” conservatives have taken to using language more typical of Elizabeth Warren and Bernie Sanders, suggesting that we must “make markets work for the American people” and “curb the excesses of the free market.” This isn’t the language of social fabric-building, but economic compulsion. “Common good” conservatives respond that free markets are actually immoral in many cases — many such conservatives have claimed that the government must prevent companies from shutting down production in certain areas of America in order to stop job loss, and thus social fabric loss, in those areas. This amounts to government compulsion of high order, and the brutalization of the economic freedom agenda that has historically characterized American conservatism.
The same holds true for freedom of speech. “Common good” conservatives have made “drag queen story hour” their cause celebre. These events are indeed morally perverse, and involve the inevitable sexualization of children. The question is whether libraries can be forced not to allow such events without allegations of child abuse. If the answer is yes, the question becomes why libraries can’t ban Bible events — and just as importantly, which is more likely in today’s culture, banning drag queen story hour or banning Bible events? The last several decades have shown us the answer to that question. Free speech can be abused. But at least free speech provides a guarantee of free speech.
What About Consent Of The Governed?
The “rights-based” conservatives and “common good” conservatives have significant disagreements about what sort of government control human beings consent to when they live in a society. “Rights-based” conservatives say that you consent only to the government defending your rights; you do not consent to a government cramming down its vision of virtue in contravention of your rights. Furthermore, your representation is required in order for government to act in all areas.
Neither aristocratic nor majority rule, in this view, is an ultimate good: Protection of rights is the ultimate good when it comes to government. Majorities are necessary in non-rights-based areas; no majority can override rights. This means that even when fundamental rights are not in question, a government acting without the consent of the governed can still threaten a separate fundamental right to representation.
This is why the Founders relied so heavily on the Montesquieu-backed notion of subsidiarity. Localities are more ideologically homogenous; they are also local, which means that if you don’t like their rules and regulations, you can leave. Consent is far more likely and government involvement more justifiable in areas in which fundamental rights are not infringed upon. Federal governments ought to be granted very narrow powers, and checks and balances ought to narrow those powers even further: There is no place to run if the feds point their gun at you.
What about “common good” conservatives, and the role of republicanism? “Common good” conservatives say you consent to be part of a society governed by historic law and tradition, and that your rights are defined only by that law and tradition. This leads to a far murkier relationship between individuals and the government. Can a majority redefine fundamental rights, since majorities routinely redefine tradition? It’s unclear. Is tradition formalized in any way, such that a majority cannot infringe upon it? It’s unclear. This leads to a sort of goalpost-shifting in governance philosophy in “common good” conservatism: “Whatever is necessary” becomes the standard. It’s actually rather easy to slide from the traditionalism of Edmund Burke and Russell Kirk into the Leviathan of Thomas Hobbes under this sort of logic. That doesn’t mean that “common good” conservatives have to go along with such a slide. But their philosophy certainly doesn’t forestall it. If you’re citing Plato’s definition of good government, you shouldn’t be surprised to find yourself gradually drifting toward Plato’s Republic.
“Power is as power does” views of government are inherently immoral. A government big enough and unanswerable enough to do your bidding is also big enough and unanswerable enough to destroy you. When the government completely loses touch with those it represents, it becomes a tyranny — even if it’s a tyranny promoting policies you like or find moral. “Consent of the governed” is indeed a moral principle, not just a pragmatic stance in favor of republicanism.
Is Culture Upstream Of Politics?
The question of the role of government, and the role of consent, quickly slides into a question about culture versus politics. “Rights-based” conservatives have made the case that culture is upstream of politics — that we must change the culture to change our politics. “Common good” conservatives make the case that politics is part of culture, and that politics can change culture. “Common good” conservatives aren’t wrong here — but their point is far less powerful than they believe. Terry Schilling writes, “Politics is a key part of culture, and often drives it. The law can serve as a teacher and a guide to encourage positive behaviors and discourage negative ones.” But the law cannot provide a bulwark against social change. Law can be used to deepen already-extant social movements; it cannot defeat burgeoning social movements. The history of the last century should have taught us at least that much. Marriage laws didn’t defeat the same-sex marriage movement; by the same token, liberalized abortion laws haven’t defeated the pro-life movement.
This means that the heavy work to be done must be done in the cultural sphere. But because conservatives have watched their chief cultural institution — church — wane in influence, and have provided no alternative methods of cultural purchase, abandoning Hollywood and the media in large measure, they are left with government as their only tool. This means that conservatives — who, it turns out, are quite good at elections — have become a hammer in search of a nail. The problem is that the nail, cultural change, isn’t actually a nail, it’s a thimble of nitroglycerin — and hitting it with a hammer will lead to an explosion. You can’t solve cultural change with politics.
But you can solve politics with cultural change. And this is where conservatives ought to be putting their focus: On minimizing the size of government, growth of which threatens both liberty and conservative culture, while simultaneously changing the cultural milieu through cultural engagement.
The Founders, at least with regard to the federal government, sought a society of Burke-ians ruled by a government of Mill-ians. Danger lies in a libertarian society of self-described Mill-ians who don’t understand the concept of social fabric, and make light of it; danger conversely lies in a society of self-described Burke-ians who don’t understand the concept of “rights-based” government. The happy medium was a moral and religious people with a limited government devoted to the protection of rights. The Founders weren’t wrong. Everyone else is.