by Douglas Mercer
SOMETIME IN the 1960s legal scholars on the left began to detect vague penumbras and emanations in the US Constitution, the existence of which no one before had ever suspected. Out of these spectral openings emerged new unheard-of rights: the right to contraception, the right to an abortion, affirmative action, “gay marriage,” the right of minorities to be treated differently in order to be equal.
And so, in a matter of years, a new constitution was created out of thin air. Just like that.
Of course those scholars knew that these vague emanations were nonsense, it was all a high-sounding legal theory to cover for the fact that they were going to do whatever they wanted, and the majority who objected, well, that majority could suck on it.
They knew the Constitution means exactly what they said it means.
Nothing more, nothing less.
In response to this legal sleight of hand timid and principled conservatives put forward the notion of originalism, that the Constitution means exactly what the framers said it meant, nothing more, nothing less. So instead of going forward they went backwards, back to a time now lost, in a way even imaginary. They appealed to an abstraction, a principle, rather than standing and fighting.
The left had a living constitution, the right had a dead letter.
But now in his essay “Beyond Originalism” Harvard professor Adrian Vermeule has found startling new penumbras, this time emanating from the right. He equally knows that all this verbiage is just so much nonsense, that the contest over the Constitution is really just a war of us against them, a test of mettle, a war of political wills, a war to the death, an eternal and elemental game of power.
And he believes that it’s high time we fight fire with fire.
What he outlines is an authoritarian constitution from a Catholic integralist and third positionist point of view. And in the process he has given the Dissident Right a legal theory that should be dear to its heart.
For in the simplest terms what we dislike are economic liberalism and social liberalism.
The right loosened economic controls and the left social ones — and together they formed a wedge which destroyed our nation.
And what we want is an authoritarian government that will shut down both. Mr. Veremeule has proposed a novel legal theory that can do just that.
He calls it common goods constitutionalism, the notion that a strong government can act in ways that direct citizens toward the good, or force them to it if need be — a strong government that can protect citizens from internal predators.
They say you can’t legislate morality, but I don’t see why not.
He also calls it illiberal legalism, a legal counterpart to Viktor Orban’s illiberal democracy, and with similar aims and objectives; a decidedly unconservative approach which rejects the eternal defensiveness of the “principled conservative” mindset and goes on the offensive, replaces cringing submission with an aggressive will.
At bottom the liberal order is based on lack of restraints: personal freedom and economic freedom, what Vermeule calls the sacramental narrative of individual autonomy, liberty as an abstract object of religious devotion.
From freedom of conscience to “do your own thing” is but a step.
But it was the snake in the garden who told Eve if she wanted she could be free.
Vermeule’s agenda is fundamentally authoritarian; he speaks approvingly of hierarchy, rule, political domination, the law as parental, solidarity, families, force, and immemorial tradition.
Under this authoritarian axe will go the scandals of our era: abortion, sexual liberties, the very notion that one defines for oneself the meaning of his life (“my truth”); free speech can be judged as inimical to the public good, and libertarian property and economic rights also give way as the state protects people from “the vagaries and injustices of market forces.”
In short, this is the legal theory of the third position, the legal theory of communitarianism, and the legal theory of a revived tradition.
Under its sway liberalism won’t stand a chance.
In advocating a strong state to protect the people, his thesis runs counter to normally accepted conservatism, but connects to a deeper history of the right; of throne and altar, of a strong state as the representative and avatar of the public good and of the people, the King in his person as the state writ large.
If tradition is to return, so much is going to have to be washed away, the deck cleared; an accommodating, non-judgmental, limited government conservatism can never counter a “live and let live” liberalism: In the end they are the same thing.
The government that governs least not only doesn’t govern best; given its duty to protect its citizens, it really doesn’t govern at all.
But with the firepower of this theory a host of draconian measures could be enacted, all of them aimed at cleaning up our society, and government will finally govern: Silicon Valley can be broken up, excessive usury can be banned, pornography curbed, “pay day loans” ended, dissidents re-platformed, corporate money taken out of politics, special interest lobbying made impossible.
Providing for the general welfare is a license to kill.
And remember, if we prevail, the Constitution will mean exactly what we’ll say it means.
Nothing more, nothing less.
If there has been a mantra, or a shibboleth, of the modern American era it’s that “anything goes”; the purpose of an authoritarian government is exactly to exert authority, to provide for the common will, to once and for all say “this will stop.”
In the end power only respects more power.
It’s doubtful Vermeule has any sympathy for us; as a preening Catholic moralist it’s near certain he’s a cuck on race; but this imperfect messenger has given us the perfect tool to achieve our goals, a powerful axe to take to the root of the evil tree.
Revolutions are not made by half-measures.
And thus armed and with sufficient will there’s nothing any longer to stop someone from emerging, taking up this cudgel, and finally smashing all of the liberal idols.
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