Originalism is a form of legal positivism and as such is devoid of moral force, except as a covert method of subverting a dominant left-liberal tradition.
Contemporary Liberalism holds itself aloof from the deeper sources of human flourishing in religion, family, tradition, and culture and has become a fideistic dogma of choice and autonomy for their own sakes. Such liberalism employs free individuals creating values through their choices that they make without rational discrimination as to the merit of those choices or whether they contribute to human flourishing. By these lights, we are pure freedom. But this liberalism will not lead to human flourishing nor will it satisfy the questioning and endlessly alienated souls of human beings. We desire to know that there is some ground of truth, some support for the very fact that we ask questions, or we would find it hard to avoid the conclusion that pure freedom is really just pure misery. Freedom to be miserable isn’t something we would persist in and we would gladly trade it for the opportunity to be ruled by an unquestionable authority.
Is this rather deplorable liberalism that I have described a truthful understanding of liberalism as a whole? Yes, say our leading post-liberal experts.
The Post-Liberal Experts
The gifted Patrick Deneen informs us in his book Why Liberalism Failed “as liberalism has “become more fully itself,” as its inner logic has become more evident and its self-contradictions manifest, it has generated pathologies that are at once deformations of its claims yet realizations of liberal ideology.” The Sage of South Bend combines classical and modern liberalism in his critique: both consume social, moral, and religious authorities and replenish nothing. We are told “that the fabric of beliefs that gave rise to the nearly 250-year old American constitutional experience may be nearing an end.” Liberalism, no doubt, is primarily responsible for our turning into dust.
The brilliant Harvard Law professor Adrian Vermeule tells us that liberalism is sacramental in character, and is a public ritual of overcoming superstition and bigotry in the name of reason and rationality. It needs a villain, someone to publicly condemn as a defeated enemy on its unending path to progress. Vermeule says liberalism needs enemies and voraciously, that is rationally, searches for and destroys them. Liberalism’s gallows are always swinging.
Ryzsard Legutko, Polish statesman, political theorist, and former anti-communist freedom fighter, argues in his 2016 book Demon in Democracy that the liberalism now practiced in Europe is comparable to the smothering ideological blanket that was communism. Liberalism’s aim, he says, is to root out and destroy the integrity of nation-states, religion, family, autonomous associations, and install in their place an unfettered individualism and a devotion to humanity writ large. Legutko proposes a return to representative government built on a nation’s historic cultural and legal identity, one bereft of the ideology of liberalism.
This is reminiscent of Hungarian President Viktor Orbán’s famous speech that called for illiberal democracy. However, the vehement criticism generated by the speech has mostly ignored Orbán’s prior observation that the liberalism enforced by the European Union on Hungary was illiberal liberalism and deeply resented by large majorities of Hungarians. Illiberal democracy is really the attempt to return political choice and sovereignty back to the people of Hungary. It is a kind of liberalism, you might say. Both Hungary and Poland are giving their people what they want.
Does liberalism as diagnosed by Vermeule and Legutko need an enemy to make itself go? That question recalls Carl Schmitt’s infamous friend-and-enemy distinction that he says is constitutive of politics. Schmitt says the essence of the political is opposition, the enemy, and that’s what activates politics and what makes the State possible. My people versus your people, and we’re both willing to aim our guns at each other, that’s politics.
Concept of the Political
Liberalism couldn’t be political, Schmitt says, it’s really only a series of negations or mediations between absolute values. As such, it’s incapable of commanding human beings into political order. Perhaps Schmitt was wrong about liberalism. Leo Strauss’s pointed 1932 critique of Schmitt’s The Concept of the Political concludes by observing that liberalism is not what, ultimately, matters to Schmitt. What Schmitt is really opposed to, according to Strauss, is not liberalism itself but the unseriousness present in a certain kind of liberalism that seeks agreement and peace at the complete expense of the fundamental human questions for meaning and purpose. Schmitt’s affirmation of politics is an affirmation of the moral, an affirmation of the seriousness of human life against the complacent humanitarian ideal of liberalism.
I think we should similarly ask, is liberalism what, ultimately, matters to our post-liberal thinkers? And one reason for asking such a question is that other than Vermeule, none of them proposes a radical alternative order to replace political liberalism, the regime they claim is pathological.
Vermeule’s call for some kind of a religious integralist (Catholic?) state in America comes across as an argument made after a bad acid trip. He articulates a future we can scarcely believe in. Deneen wants communities “offering actual human liberty in the form of both civic and individual self-rule, not the ersatz version that combines systemic powerlessness with the illusion of autonomy.” I’m down with that. Of course, details are needed here, but Deneen is short on those. Hmm…, I wonder if other thinkers have supplied some details in this regard. More anon. I’ve noted Legutko’s version, one we can actually see working in Poland to some extent. It’s deeply conservative in many respects and from the standpoint of the “Davosie,” an oppressive conservatism. But, then again, what kind of conservatism isn’t for that set?
The radical critique of liberalism would have to deal with the foundation of liberalism and that, Strauss informs Schmitt, requires interrogating Thomas Hobbes. But does such a critique entail the rejection of liberalism, or does it not rather entail the rejection of Hobbes’s pulverization of human nature and reason? What unites the conservative post-liberal critics above all is that their foe does not look upon nature as something to cultivate but as something to subdue or to escape. The consequence is that there can be no natural right, no natural law, nothing to ground our reasoning in truth. We have merely the claims of the metaphysically sovereign individual, a law unto himself.
Is man purely a being of will who shapes himself by satisfying his desires? Hobbes’s observation is that man is just sensible appetites and human will is just what comes uppermost in these desires. And we need desires, Hobbes says, because they develop our wit. In particular, we need a desire for power if we are to be great. The good is merely the thing desired by each particular person. But with the pursuit of desire comes conflict as we beasts brush against one another in competition for the things desired, which are of necessity good. Recall that for the social contract theorists, by sanctioning law and power, states provide the means for man to improve his estate by being able to rely on a predictable state and a civil society. With no way to order our wills or their desires, we need an incredibly powerful liberal state to compel observance of rules, to be a hedge that keeps us from injuring one another.
But this story of the state civilizing the proto-man, told in different ways by Enlightenment political theorists, lost its appeal to the late-modern liberal. Sovereignty of the state isn’t really his choice to become more fully human. Rather the late-modern mind affirms autonomous liberty or the affirmation of yourself without really knowing yourself.
This brings us to the dogma of our times, I think, that of choice and equality for their own sakes. The liberalism that overarches this negative anthropology must be harshly opposed to any conception of man’s freedom premised on human nature, a freedom that more fully becomes itself and achieves human excellence when its choices realize and develop the goods of human nature. It’s the very fact of human nature that is dismissed by illiberal liberalism. There is, ultimately, no reason why the being entrusted with language and the giving of reasons for his actions applauds things like courage, wisdom, temperance, or prudence, as opposed to cowardice, foolishness, indulgence, or folly. Moreover, our status as embodied, finite beings who love others because of our dependency and because we are born to die signals to illiberal liberals no clear or transparent meaning about our relational human nature.
The result is a reductive egalitarianism that is theoretically unable to make distinctions about the ends of human action beyond insisting that members of minority racial groups, and now the indefinite extension of pronoun sexual identities, must be a part of the social and political bargain.
To the question “Who is man?” such a liberalism can only respond that man is pure potential, pure freedom. Freedom is not responsibility to truth, it is merely freedom from. This means that the deepest callings of our freedom, urgings that cannot be vanquished—namely a freedom with and for others, and a freedom under law—are really a source of authoritarianism. The dogma of choice struggles to place any collective institution with rules, morality, and norms of behavior on any pedestal other than that of crypto-fascism.
Thinking in particular about our American political situation, one of the fears Tocqueville expresses in the second volume of Democracy in America is that dogmatic liberalism would reduce us below the level of human persons. We would no longer see one another as distinctive beings with rights; rather we would be reduced to entities that are part of a cosmic whole. The exercise of freedom and the attempts at human greatness would cease to matter as we no longer actually believed in the worthiness of our personhood.
Tocqueville labels this pantheism, and he greatly fears its workings in democracy because we would lose the distinctive aspects of our human existence and come to see ourselves as mere flotsam in a sea of grand historical forces. The great fear voiced by Tocqueville was that “in the dawning centuries of democracy individual independence and local liberties will always be the products of art” but “centralized government will be the natural thing.” How to maintain the spirit of liberty against the viral spread of enervating equality, which reduces individuals and isolates them from one another?
Now at one level, overarching determinative theories of history seem implausible today. Marxist socialism isn’t on the horizon. And that’s also true for the sweeping claims made on behalf of liberal democracy by Francis Fukuyama at the end of the Cold War. But the problem with the dogmatic or illiberal liberalism of our day is that the freedom it underwrites is about everything and therefore it is about nothing. Even a moral pluralism must be rooted in certain truths of the human condition. A good liberal order must be seen as an opening to reason together about how we should order our freedoms. This opening is best explored by a natural law liberalism that has ample material to work with in the American constitutional tradition. This liberalism is sober, prudent, and unafraid to tell the truth about the contents of human freedom and its best uses.
The Doctrine Lives
One practitioner is John Courtney Murray, S.J., who argued that we will always need the immanent, not autonomous, reason of the natural law to shore up our civil unity, ordering it by the rule of law. And this is because the core concepts of our Constitution are suffused with the ancient natural law tradition. Take the consent of the governed, a concept that legitimates the Constitution. Why should we take political consent seriously? As our new crop of authoritarian libertarians tell us, they get the ins and outs of policy much better than Bubba. Who cares about his dumb thoughts, even his votes? And narrowly considered, they have a point.
Forgotten, however, is that this political notion is premised on the constitutional people being the bearers of a western moral tradition in their memory and conscience that they are working out and drawing from in political deliberations and judgments. The separation of powers, federalism, and representative government are the principal constitutional mechanisms by which the consent of the governed then comes to shape policy. A constitutional democracy is built on an ensemble of pre-political truths, and the act of daring, the experiment of our particular constitutional order, is that the people can be relied upon to bring to bear refinements and applications of these truths as political challenges and opportunities arise.
In his 1962 essay “The Return to Tribalism” Murray noted that reason is needed in three distinct aspects to achieve civil unity and stave off a tribal politics. We need a moral reason that discerns and elects the ends and purposes of our political life; a legal reason that provides laws that will obtain the consent of the governed and that limit government to the order of law; and we need a political reason that organizes the interests of the community in accordance with the good of the person, which requires that justice observe prudence and the arts of persuasion. What does it mean that we possess this gift of freedom to reason well or poorly about how we will live, about what we will put in common so that we can thrive in numerous ways?
Liberalism limits power and binds its necessary use with a promise of fidelity to a fundamental document, a constitution that forms and animates political life. Why? A liberalism worthy of the name recognizes the grandeur of the human person, as revealed by the person’s infinite longing and our misery and restlessness, which point to man as a peculiar kind of being who wants to know with others the truth about himself. But we also will disagree about the answers on what man should do, so we limit ourselves and our laws in respect of an authentic pluralism.
Our post-liberals have diagnosed pathologies in contemporary liberalism, but they have not dealt with the true ground of our discontents. To do so will require us to understand the human person who must live a life in common with others, but who, most significantly, is a being of eternal significance and cannot be defined by the state.