The common good, a threat to freedom?
Yet again, valiantly standing athwart the “prophets of the Common Good,” Law & Liberty published another piece last week warning its readers about the potentially nefarious theory behind the resurgence in classical jurisprudence—Adrian Vermeule’s common good constitutionalism and Josh Hammer’s common good originalism. Both camps “invoke telos to justify transformative arguments about the American Constitution.” What the author, Jeffrey Bristol, takes issue with is the tendency of proponents of the common good to adhere to classical justification for authority and law, viz., the end or telos being the common good. (What we will question here is whether the import of this invocation is, in fact, historically “transformative.”)
Bristol argues that the American constitutional order is not oriented to the common good as the end or final cause of its existence, but rather that “ordered liberty” serves that role. Individual ordered liberty, he says, enables citizens to pursue the common good on their own as they see fit, even their own personal common goods (plural). In other words, civil authority, government, the state is not charged in the American regime with pursuing the common good of the polity—apart from the bare minimum of physical security—but with facilitating maximal leeway for atomized citizens to pursue it according to their own whims. Like David French, Bristol thinks liberty is the common good, and he further assumes a virtuous citizenry, but this too can only be fostered at the most granular level of society. For him, the parts are prioritized ahead of the whole, and the whole is little more than an amalgamation of the parts.
Now, at the outset, we must flag an all-too-common misconception of the “common good.” In truth, it is not so mysterious. Common goods are those that are not diminished by a multiplicity of participation, and only attain when man’s sociableness is exercised in consort with others. The common good is the opposite of the private good, the latter being necessarily exclusive. The common good isn’t simply a collection or aggregate of private goods. Neither is the common good what its liberal critics suggest, viz., the greatest good for the greatest number of people, a sort of collectivist hedging of bets. Moreover, the common good does not erode or replace the person or the personal good.
There is a common good of all cooperative enterprises, of a family, of a guild, of a city, of a nation. Neither does this deny individual goods nor the individual himself. Per his natural endowments, man is not intended to live alone, and, indeed, his person is fulfilled by participating in relations, in goods that extend beyond his own, private fulfillment.
When a community is ordered to the common good, and so too its members, the same members are not erased and nor are they enslaved. Rather, they are ordered to their own personal good, both according to their human anthropology and according to the communal expression of the same in which they are involved.
For our purposes, it is essential to note that the common good functions politically as the classical justification for authority, for lawmaking, for the exercise of power. Said already is that the common good’s converse is none other than private interest for which no just ruler is to wield public authority on behalf of the polity.
All of this is briskly worked out in the first book of Thomas Aquinas’ De Regno (1267). In brief, all things are directed toward their appointed end by some means. Man is moved by the light of reason toward his end. If he were created to live alone then this means would be sufficient. As a matter of fact, man is intended to live with others. He is a political animal as a necessity of his nature. Camaraderie, procreation, and mutual aid in complex pursuits are his needs. If men are going to live together then another principle must be introduced to guide them in concert toward their end, to transport them from a lonely state of nature to a human, sociable existence. “For where there are many men together and each one is looking after his own interest, the multitude would be broken up and scattered unless there were also an agency to take care of what appertains to the commonweal… With this in mind, Solomon says: ‘Where there is no governor, the people shall fall.’”
Prior to discussing forms and modes of governance, Aquinas instructs that
If, therefore, a multitude of free men is ordered by the ruler towards the common good of the multitude, that rulership will be right and just, as is suitable to free men. If, on the other hand, a rulership aims, not at the common good of the multitude, but at the private good of the ruler, it will be an unjust and perverted rulership. The Lord, therefore, threatens such rulers, saying by the mouth of Ezekiel: ‘Woe to the shepherds that feed themselves (seeking, that is, their own interest): should not the flocks be fed by the shepherd?’
The alternative to this is the literal definition of tyranny.
No justification can be provided for such an expression of governing agency but the good, the end, common to all the members not as individuals but as members. To say that a society is directed to, or justified by, liberty—the qualifier “ordered” is superfluous but functions polemically as a veneer of stability—as its end or final cause is to frustrate the nature of the things itself.
This is not to deny that regimes can and do variously promote liberty or licentiousness, nor that even good regimes struggle to delineate the range of regulated activity, and whether and when to rule with a heavy or light hand. These are perennial conundrums for the statesmen; prudence is his only weapon against them. But to say that a polity is ordered not to the common good but to “liberty” as such, even as a supposed means of facilitation of goods, inescapably implies a polity distracted from its own health and longevity. That is, it is not a polity at all; and the whole is reduced to its parts that, by happenstance, possess spatial proximity. So too is the very purpose and function of law as virtuous directive fade away. Does not our self-absorbed, navel gazing culture and sometimes lawless society demonstrate this?
Returning to Bristol, to demonstrate the alleged error of the “Common Gooders,” he employs Aristotle’s fourfold causality to elucidate the true character and purpose of the American republic: popular sovereignty and individual liberty. He goes so far as to claim that the founding generation
couldn’t have more firmly rejected the Common Good orientation of government since the Common Good was the aim of the British monarchy (the king was, after all, the head of both church and state; the integralist dream). Had the revolutionaries objected simply to the Crown’s implementation of the good, either the Revolution wouldn’t have been necessary, or they would’ve preserved the British form of government rather than creating something radically different and new.
Of course, Bristol’s jab at integralists only proves his own misunderstanding—he confuses their model with an Erastian one—and he does not understand the American founding much better.1
Bristol’s purportedly Aristotelian exercise is interesting but unconvincing insofar as Aristotle’s proofs, like a syllogism, are malleable and determined by the inputs at the outset, and because Bristol’s argument is normative not historical even as he anachronistically imposes it on the past.
The preliminary problem for Bristol is that Aristotle (Politics, 3.6) disagreed with him.
[T]he government of a wife and children and of a household, which we have called household management, is exercised in the first instance for the good of the governed or for the common good of both parties, but essentially for the good of the governed.
The analogy between civil government and family is well established, but Aristotle (Politics, 3.7) is even more direct:
Of the above-mentioned forms, the perversions are as follows: of royalty, tyranny; of aristocracy, oligarchy; of constitutional government, democracy. For tyranny is a kind of monarchy which has in view the interest of the monarch only; oligarchy has in view the interest of the wealthy; democracy, of the needy: none of them the common good of all.”
The larger problem is that, as an historical matter, the American constitutional order does not agree with Bristol either. Bristol’s intent is evidently to detach the founders, and America itself, from the classical tradition and more cozily attach it to the “Enlightenment.” Unfortunately for him, the only historical support he cites for his wild claims is the Declaration of Independence and the Gettysburg Address—the latter being wildly out of scope for the present inquiry—and one of the Anti-Federalist Cato letters. Hardly a sufficient array of sources to facilitate his narrative.
It is peculiar that the only extant source cited by Bristol is the Declaration of Independence given that the first grievance listed therein as a justification for secession is that George III had withheld his assent to colonial laws “most wholesome and necessary for the public good.” That is, that the chief function and purpose of colonial government had been thwarted.
Stranger still is Bristol’s use of Cato. The latter is quoted from a 1787 letter saying that “government, to an American, is the science of political safety.” The former interprets this to mean that “government exists to protect an individual’s liberty from predation, including from the government, while supporting those private institutions that allow them to flourish,” contra a “common good by diktat.”
Cato does not say that, however. The letter in question, as with all Anti-Federalist papers, is protesting the then presently proposed form of national government, the adoption of which would be “fatal to the community.” Observers were, therefore, encouraged to think for themselves since, on Cato’s judgment, wise statesmen had nevertheless erred in their new governmental model. This is not a philosophical treatise. It’s a polemic. But notice that security of the community is the implicit, operative purpose of government in view. Of course, this is a particularized way of discussing the common good. Even in Vermeule’s now infamous article the common good as the rationale and end of law and government is variously described as peace, justice, abundance, health, and safety.
And to quote another Anti-Federalist, Brutus, in Letter IV,
The object of every free government is the public good, and all lesser interests yield to it. That of every tyrannical government, is the happiness and aggrandisement [sic] of one, or a few, and to this the public felicity, and every other interest must submit.
They may not conform to Bristol’s fourfold causality of the American regime, but the founding period is full of comments like the above, referencing the common good and its variants (e.g., public good, public welfare, etc.). But stacking up cherry-picked quotes, whether public or private, from the capital-F founders cannot, as it so often does, stand in for more substantive historical demonstration. Too much data exists for inquiries to remain as lazy as they typically have been, though none can be exhaustive, especially given the format and constraints of this essay. But we can at least hint at a better, more honest way by examining public, consensus documents in the context of the intellectual milieu in which they were drafted.
As I have said elsewhere, the object of the “general welfare” clause of the federal constitution is the union, namely, its security and longevity of said union. But the moral and political loci of the nation as a federal republic was the states. They alone maintained the power of “internal police” or domestic policymaking, especially moral legislation, as Max Edling has so expertly shown. The retention of this range of governance was explicitly asserted by Vermont (1777), North Carolina (1776) and others in near identical fashion. (This sums up my limited pushback to Hammer’s use of the federal Preamble as a textual referent.)
The nexus of political power is not irrelevant to the discussion at hand. The states retained such domestic purview by way of their original royal charters, and the federal constitution cannot be properly, historically considered absent recognition of the colonial (state) assertion over domestic affairs and retention within the national structure of that priority. Federalist No. 10 and Federalist No. 17 admitted as much. In other words, to understand the American regime at the start, one must look to state, more so than national, constitutional activity. An exposition of the 1787 federal constitution ignorant of this subsidiarity will miss the real picture. It is in the thirteen colonies, first and foremost, that the historian will find the American, “founding” era ideal of government, its causes and end.
But first, in attempting to locate the telos of government as it was understood in the late eighteenth century, we cannot immediately begin in 1776 or 1787. Rather, we must heed John Adams’ advice to the Abbé de Mably in 1783 as to the periodization of American history. The true student of that history cannot neglect the Adams’ first step, viz., the colonial period, from the seventeenth century up through the mergence of the “Controversy between [the colonies] and Great Britain in 1761.” (The second president himself exhibited an acute studiousness in the subject.)
Within this period are two indispensable categories of sources that cannot go unnoticed if the historian is attempting to enter the colonial world, both of which are public documents, not private correspondence. The latter is, in general, given too much attention and weight.
The first data point is the mass of colonial constitutional documents of the seventeenth century. The second area of interest is comprised of the predominant medium of public communication in the colonial period. That is, sermons, generally, which Harry Stout brought to life. In this case, our interest is election sermons, i.e., those addresses occasioned by the annual inauguration of a new colonial governor at the invitation of the General Assembly by a minister of good reputation and influence.
Consideration of the American sermon, for these purposes, must extend beyond the selective surveys from Mark Noll and Ellis Sandoz, both of which limit the colonial sermonic scope to political sermons—an amorphous category—and ignore the more explicitly public, formal, and regular election sermons. (The latter being, as a sustained practice, a uniquely New England phenomenon, to be sure, albeit they were not unknown elsewhere.)
Surveying the first category we find in colonial charters and constitutions political pathologies and assumptions that contradict the individualist, “ordered liberty” narrative from Bristol.
The Connecticut Oath of Fidelity (1640) defined “lawfull Magistrates” as those that promoted “the publicke good” of the colony. The Massachusetts Bicameral Ordinance (1644), which reorganized the legislature as the title suggests, specified that when the deputies reviewed the proposals of the magistrates the standard of review was that the suggested measures be “good & wholesome,” and that, according to the “discretion & experience” of the deputies, the same be “meete for common good.”
The shockingly terse Providence Agreement (1637) bound all inhabitants to “subject” themselves to “orders or agreements as shall be made for the public good.” The Charter of Providence (1649) similarly empowered the “General Assemblie” to, at their discretion, govern in a way “most conducing to the generall good of the said plantations.”
The famous Fundamental Orders of Connecticut (1639) gave legislators the power to pass laws “as may be for the public good” and bound the towns to them, and further directed the General Court to consult regularly on “the good of the public” as their chief work. The oath of the governor required the candidate to sear to “promote the public good and peace of the same.” The equally famous Laws and Liberties of Massachusetts (1647) suggested that “surely there is no humane law that tendeth to common good (according to those principles) but the same is mediately a law of God.” The preface to the revision of the General Laws and Liberties of Connecticut (1672) informs us that the “whole aim” of the polity was to “promote the Welfare of this People” via its laws. Notice throughout this sample to implicit recognition of the classical definition of law and governance by law. Only those ordinances promulgated by an authority given care for the community and intended for the good of said community are properly law. Anything else is tyrannical.
Lest the above be cast as a peculiarly New England phenomenon, The Constitution for the Council and Assembly in Virginia (1621) settled “such a form of government there as may be to the greatest benefit and comfort of the people.” In other words, the common good. Similarly, William Penn, upon consulting the constitutions of Massachusetts, New York, and Virginia, in 1682 castigated those that think government only a restraining power for “correction,” the “coarsest part of it.” In fact, government regulates “many other affairs” given its duty to “terrify evil doers” and “cherish those that do well.” Hardly a proponent of government as facilitator of individual liberty, that William Penn.
Much like our Constitution’s Preamble, the Articles of Confederation of the United Colonies of New England (1643)—more or less a defensive pact—called on the parties (i.e., Massachusetts, Plymouth, Connecticut, and New Haven) to provide “mutual help and strength” for the sake of the shared “end and aim” of their immigration, viz., the advancement of “the Kingdom of our Lord Jesus Christ.” This “league of friendship” did not itself construct a new conglomerate, but should be read as an international treaty, again, like our Constitution. Nevertheless, “mutual safety and welfare” are its animating purpose and end.
The practice of annual election sermons continued through the founding period and beyond—not until the last decades of the nineteenth century were they abolished by the legislature in Massachusetts. In elections sermons we find a singular civic occasion wherein all three estates of society were present and the most central socio-religious and moral voices pontificated year after year on the nature, means, and ends of good government. At least for New England, where the practice was uniquely sustained, these sermons were commissioned by the General Assemblies and republished at the state’s expense. In this way, they serve as a window into popular, ecclesial, and governmental consensus.
We could begin with seventeenth century sermons from New England by various Puritan patriarchs and luminaries—John Davenport (1670), Jonathan Mitchel (1671), Samuel Whitman (1714), or Azariah Mather (1725), to name a noteworthy few—but to avoid being labeled too outdated by our opponents, we will proceed nigher to the period under review. (Rest assured, however, of deep congruity and continuity. As Herbert Schneider aptly illustrated, “Samuel Mather in the eighteenth century did not share all the opinions of his great-grandfather, Richard, in the seventeenth, but he worked on the same intellectual material and employed the same ideas.”)
Jumping ahead, then, Noah Hobart in 1750, preached in Connecticut on Psalm 11:3. “PUBLIC Happiness is the original Design and great End of Civil Government,” he declared. This can be achieved through various forms of government so long as a given form is agreeable to natural law and not contrary to Scripture. The main thing is that public happiness be pursued via the chosen form. Jonathan Mayhew said much the same in 1754.
Hobart says that “social happiness” is established by security, encouragement of true religion, and generally promoting “such Things as tend to the Public Good, and suppressing whatever is contrary thereto.” These are not individual goods, but rather “the Safety, Security and Happiness of men considered as formed into Society.” That is, men as naturally “sociable Creatures” who “should live in Communities, and enjoy the Benefits and Advantages that are peculiar to Social Life.”
The year prior, Jonathan Todd had delineated to the same Assembly the “Origin, Design, Business and Necessity of civil Government.” From Romans 13:6 he discerned that “THE Apostle also presseth Subjection to Authority from the Original Intention & Design of Government, which is the publick Good.” Civil rulers were, therefore, “as Trustees for the publick Good,” and charged to maintain the “publick Peace,” and otherwise gemerally “serve the publick Interests of Mankind.” And, again, this because—as Todd repeates himself— “the publick Good is the great End, and original Design of the Institution of civil Government.”
Andrew Williams, in his 1762 election sermon, provided the standard by which public officials should be judged: If the public Good be promoted, we ought to be content, tho’ we may imagine our selves, or some of our Friends, better qualified for some Posts, than the present Possessors.” For the duties of those occupying government were clear:
As it is of the greatest Importance to Society, therefore those to whom this great Trust is committed, of making Laws, are from the Ends of Society, and the Nature of the Office, under the strongest Obligations, rationally and faithfully to discharge the Duties of their exalted Station. A Fault here will produce the greatest Schism, and may ruin the Body; but Wisdom and Uprightness will most effectually secure and promote the public Good, the Order, Harmony, Peace and Prosperity of the whole.
John Tucker (1771) connected man’s sociability to the end of government:
as civil government is founded in the very nature of man, as a social being, and in the nature and constitution of things. It is manifestly for the good of society:-It is the dictate of nature:-It is the voice of reason, which may be said to be the voice of God.
Similarly, in the year of revolution, Samuel West:
The great Creator, having designed the human race for society, has made us dependent on one another for happiness. He has so constituted us that it becomes both our duty and interest to seek the public good; and that we may be the more firmly engaged to promote each other’s welfare, the Diety has endowed us with tender and social affections, with generous and benevolent principles.
Had men persevered in a state of moral rectitude, every one would have been disposed to follow the law of nature, and pursue the general good… for every man, being under the government of right reason, would immediately feel himself constrained to comply with everything that appeared reasonable or fit to be done, or that would any way tend to promote the general good.
So passionate was West about the “general good” as the justification for, and end of, magisterial authority that he justified the right of rebellion upon it such that whenever governors acted “contrary to the public good, and pursue measures destructive of the peace and safety of the community, they forfeit their right to govern the people.”
In 1774, Gad Hitchcock, preaching before general Thomas Gage in Massachusetts Bay, described the “nature and end of civil government” as “public security and welfare.” For “Civil authority is the production of combined society- not born with, but delegated to certain individuals for the advancement of the common benefit.”
Calling “magistracy” (i.e., government) an “institution of Christ Upon the Throne,” James Allin had accordingly outlined in 1744 the criteria for occupants of such an office. The good governor “endeavours to make his subjects good men and good Christians, obsequious to the laws of God,” and enact, promote, and enforce only laws that would “honour God, and the publick good, and not those that were grasping after preferment from selfish views, to enrich or aggrandize themselves by empowering their subjects.” This was the “publick spirit,” to “have a principal regard for the glory of CHRIST upon the throne, and the good of your Country.”
Similar examples could be amassed ad infinitum. This is just a representative taste. Seventeenth- and eighteenth-century elections sermons were replete with the then uncontroversial idea that the purpose and end of government was the good of the whole, the public welfare, peace, prosperity, security, and social happiness, in other words, the common good, the only alternative to tyranny at the hands of private interest. These sentiments conditioned America up through the founding period and simultaneously reflected the common persuasion. Indeed, no one thought “Common Gooders” were radically out of step with their countrymen at the time. They seemingly occupied every pulpit in New England.
So much for Adams’ first period. What of the latter stages up through the eighteenth century?
Identifying a social covenant—between citizen and citizen, but also citizen and the “whole people” as a unit—as the genesis for the formation of a polity, the Preamble of Massachusetts’ constitution (1780), drafted primarily by John Adams, notes that the governance of said polity shall be by laws formed for the “common good.” It was for this purpose that it was the duty of members of that body politic “in framing a constitution of government, to provide for an equitable mode of making laws.”
Thus far, the commonwealth was not just an amalgamation of individuals. The covenant (or compact) bound each citizen not only to each other on an individual basis but to the body politic as an entity. Further, laws were to be oriented to and made for the common good, which was facilitated by a form of government that would promote equitable lawmaking.
Of course, the same document notes that the “end” of government is twofold, the security of the body politic, and likewise the protection, unto tranquil enjoyment, of the natural rights of the citizens thereof.
These two sets of provisions are nowise at odds; the are not rightly conceived of as separable at all. This much is made clear later in Article VII:
Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men.
Right there, the drafters explain to the reader both the purpose and telos of government and the meaning of that telos. The other Adams, Samuel, had likewise previously said in The Rights of Colonists (1772) that man’s liberty is “abridged” by entering society insofar as it was “necessary for the great end of society, the best good of the whole.”
John Adams, in his notes on his drafting of the Massachusetts constitution, notes that Article VII was but an expansion of Article III of the Virginia Declaration of Rights (1776) which similarly held that “Government is or ought to be, instituted for the common Benefit, protection & Security of the People, Nation, or Community,” and if a government ever proved “inadequate or contrary to these purposes” it could be deposed. In Adams’ version, the life, liberty, and property of individuals is not discussed until Article X in which the exercise of said possessions is regulated by “standing laws”—i.e., those to which the “constitutional representative body have given their consent”—and subject, at times, to the common defense of the commonwealth. And in Article XIX the right of assembly is preserved for the purpose of mutual consultation “upon the common good.” (North Carolina put it the same way in Article XVIII of their first constitution (1776) as did Pennsylvania in Article XVI (1776)). The right to bear arms (Article XVII) is for the “common defence,” and the legislature is instructed to “frequently” strengthen existing laws and formulate new ones “as the common good may require” (Article XXII).
Not dissimilar to Massachusetts, Vermont in 1777 declared that government was “instituted and supported, for the security and protection of the community,” the “safety and happiness” of the people, as well as the rights and blessings “which the Author of existence has bestowed upon man.” To boot, “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; and not for the particular emolument or advantage of any single man, family or set of men, who are a part of that community.” Pennsylvania (1776) espoused the same notion verbatim.
Only the “community” had the right to “reform, alter, or abolish, government, in such manner as shall be, by that community, judged most conducive to the public weal.” The right of assembly for residents of Vermont was articulated just as it was in Massachusetts.
The oath of office in New Jersey’s 1776 constitution required public officials to swear against any laws that “shall appear to me injurious to the public welfare.” No equivalent reference is made to ordered liberty or individual rights as a prerequisite for public service. Indeed, the same document begins by justifying the colony’s break from Britain on account of the assumption that the authority of George III over them represented a “reciprocal” bond of allegiance predicated on the exercise of said authority “for the common interest of the whole society.” The word “liberty” does not appear in that constitution at all.
We could go on. Georgia’s constitution (1777) established in Article LVII pro bono publico as the official state motto. The period was replete with such classical language, especially Cicero’s maxim, salus populi suprema lex esto [the highest law is the people’s well-being]. For example, James Otis, having discussed possible theories of the genesis of government concludes: “[L]et the origin of government be placed where it may, the end of it is manifestly the good of the whole. Salus populi supreme lex esto, is of the law of nature.” All three estates of government must be united in this pursuit, Otis insisted. John Locke held that the same maxim was “so just and fundamental that no one who sincerely follows it can dangerously err.”2
Again, the well-being of the people as the chief interest of government and society does not eliminate the personal, nor personal immunities, and certainly not social or conventional rights. But it does condition the apprehension and application of the latter.
Nathaniel Chipman was conventional when he wrote in his magisterial Principles of Government (1833),
[A]ll governments have one common end in view [“arising from the general nature and end of all legitimate government”], and all the members of each have in it a common interest. This consists in the means of securing to all, and mutually adjusting their social and individual rights. To effect this end, laws to regulate the general conduct of the members and direct their actions to the great object of society, the common good, are indispensably necessary.
Adams, Otis, the early state constitutions, and colonial sermons do not represent an aberration, a departure from the Protestant—and larger western Christian, for that matter—tradition. The same justification, telos, and final end of civil authority, government, and law is easily discoverable in prior sources back across the pond.To avoid exhausting ourselves further at this point, consider just one representative example: Richard Baxter, in Thesis 46 of his Holy Commonwealth (1659) writes, “A Common-wealth properly so-called is… the Government of a Society of God’s Subjects by a Sovereign subordinate to God, for the common good, and the Glory, and pleasing of God.” Brilliant and eclectic as he was, this was not an insight born of Baxter’s private, independent musings. He garnered it from the received tradition. Modern American Christians, Protestant and Catholic alike, are on solid ground invoking the common good as the telos of their regime. It would be a curious, ahistorical, indeed, amoral position that would assert any alternative. Without the common good rationale, government can neither be justified nor limited. For even John Locke said in the Second Treatise that the power of society and government “can never be supposed to extend further than the common good,” and that the (hypothetical) natural freedom of man can be reduced only as required “for the welfare, prosperity, and safety of the society.”3
*Image Credit: Unsplash