Common good v. public good or public interest

Sandy Levinson

Let me begin with where I certainly agree with Jack:  Adrian Vermeule is in fact promoting Catholic integralism (just as some Protestants, including, it has been alleged, Vice President Mike Penc,  are adherents of "dominionism"), both of which advocate forms of theocracy.  Indeed, certain members of the Haredi community in Israel and, I suspect, some members of Modi's ruling coalition in India are also theocrats, not to mention supporters of an Islamic Caliphate or even the "Islamic republics" of Saudi Arabia, Pakistan or Iran.  What makes Adrian special is that he is unusually smart and enjoys the institutional location of being a chaired professor at the Harvard Law School.  (One of his predecessors as the Tyler Professor of Constitutional Law was Laurence Tribe!)  He is a relatively recent (four years ago, apparently) convert to Catholicism and, perhaps like many converts, is tempted by some of the more extreme doctrines that are available within the Church.  I put it that way because the Church, like all large institutions, is in fact pluralistic, and one can find a variety, even if not limitless, number of doctrines available for trying to decide the relationship between Moral Reality as enunciated by the Church and the actual political realities of what Augustine called "The City of Man."  One can imagine an American future in which the still relatively young Adrian Vermeule become a genuine political force. (One would be interested, for example, as to whether or not Amy Comey Barrett, a sure candidate to succeed Ruth Ginsburg should Trump be in power when that day comes, adheres to the views articulated by Vermeule or by her Notre Dame colleague Patrick Deneen, who also condemns liberalism in all of its purported aspects.  I personally think it would be perfectly legitimate to interrogate her on this matter, but the "No Test Oath Clause" has been misinterpreted, I believe, to make illegitimate any questioning at all about the religio-theological views of candidates even when they proudly affirm the centrality of their religious identity to how they conduct they lives.

But that isn't the major impetus for this posting.  Rather, I think that Jack's attempt to defend the "pubic good" as against Adrian's "common good" is open to dispute.  The basic problem, as Jack fully realizes, is how one constructs a stable--and admirable--polity for what Holmes called people of "fundamentally different views," where some of the central differences involve precisely what might count as "the public interest" or "pubic good."  As Jack notes, Madison recognizes, kind of, the problem, particularly in Federalist 10, but he scarcely comes up with a convincing, or even plausible, solution.  Or, perhaps, he comes up with two quite different solutions.  The first, which Jack emphasizes, is the theory that the "extended republic" will make it hard (perhaps impossible) for a selfish "faction" to gain control over the national polity, unlike the states, which Madison, at least at that time, viewed as little more than cesspools of faction.  Anyone who believes that the Madison of 1787-88 was a devotee of "states rights" is truly illiterate.  There are all sorts of critiques of this version of Madisonian optimism, beginning with the importance of the creation of national political parties (or factions) that serve to reduce the transaction costs of capturing the national government for their own nefarious purposes.  In any event, this version of Madison leads to what came to be called "interest group liberalism," in which we simply assert, or stipulate, that whatever gains the assent of the relevant coalition of interest groups just is in "the public interest.  To put it mildly, there is no reason to accept this definition, even if it is comforting to accept it as true.

But Madison also offers the possibility that national leaders, unlike local leaders, whom Madison came close to despising, would be imbued with what Jack accurately identifies as sufficient "virtue" to tame the selfishness that pervades society and to adopt policies that in fact serve a genuine "public interest." That model of elite (and "representative") democracy was based on a fundamental mistrust of what we today might call "democracy" inasmuch as the lower orders were expected to recognize and then defer to their betters, what Jefferson notoriously called "the natural aristocracy."  Whatever one thinks of that as a normative model, it clearly did not survive, say, the election of Andrew Jackson.

So the dilemma facing contemporary liberals (and liberalism) is to enunciate a "progressive" political program at the same time that most liberals are scared stiff of what is described as "populism," i.e., a much more active participation by "we the people" in the process of decisionmaking and a concomitant distrust of established elites. And the paradox of the Sanders candidacy, as I have repeatedly argued, is that the self-styled "revolutionary" offers literally nothing by way of a serious critique of a constitutional structure, established in 1787, to minimize the actual role of the demos and to assure that the byzantine system of "checks and balances" would make it extremely difficult to meet the challenges of the day, including, in our own time, those presented by Covid-19.

Not surprisingly, Jack and I address some of these issues in our epistolary exchange, Democracy and Distrust, available at a book store near you!  Although our analyses overlap in important respects, there are, nonetheless, significant points of departure.  One of them, in addition to the relative weight we put on political structures as against political culture, is the degree to which there is at present any truly satisfactory theory of "the public interest," "common good," or "public good."  Michael Sandel, who established his reputation as a critic of John Rawls, has been articulating his own theory of the "common good" for quite a while, though I'm not aware that it's really made much headway (and I find it more than a bit problematic myself).  All of this is by way of saying that the gauntlet that Vermeule is throwing down must be taken seriously, even if I certainly agree that one should reject any notions of Catholic integralism, Torah-true governance, or an Islamic caliphate as the answers.  Perhaps the best we can do is to stick with some sort of modus vivendi politics based on compromise and a willingness to forbear from pushing one's own views too far.  To maintain a society of relative peace and good order--the Canadian credo--is no small achievement, but is's hard to come up with a grand theory that necessarily justifies the hard compromises that may be necessary to attain it.
Posted 9:49 PM by Sandy Levinson [link]