The James Wilson Foundation on Natural Rights and the American Founding

“States, Courts, and Common-Good Conservatism” — Holden Tanner

Holden Tanner continues his dialogue with Josh Hammer and Jesse Merriam, arguing that to reform American jurisprudence conservatives need a new synthesis of the natural law tradition and the Antifederalist vision of state power.

Some excerpts:

Hammer is correct that abstract human reason alone cannot restore conservative jurisprudence—careful attention to our history and traditions as well as the unique world-historical role of the American Republic is required. And Merriam too is right that states matter as states, that is, as political communities with their own peoples and their own common goods to be achieved. But the tension between the two positions is obvious, if not in their premises, then at least in their tendencies. To wit, Hammer is certainly Hamilton; Merriam, perhaps, is Mason. The Federalist-Antifederalist divide is always with us.

“First, I want to affirm that the aim of common-good conservatism is primarily to establish just laws—laws whose content is in accord with natural law and whose prudential determinations further our flourishing. That aim, standing alone, says nothing about who constitutes the relevant political community and which organizational structures—the separation of powers, federalism, etc.—are required to maintain it. The point of substantive jurisprudence is that it looks to the content of the law that governs us, not merely to the procedures by which it is created. So, to the extent we all share in that project, we should establish that the demands of our law—not merely the identity of our lawmakers—matter most.

Second, I will accept the debate on its own terms—that now is a time for choosing whether to embrace national power or double down on our traditional commitments to subsidiarity, decentralization, and federalism. The resolution of that debate, to my mind, requires separating the political problem from the legal problem.

The mode of argument employed by Hammer has its vanguard in the predominantly communitarian tradition of the Northeast augmented by the teachings of Catholic Social Thought. The natural home of Merriam’s argument is among the Evangelicals of the South and Appalachia, who provide the base of electoral support on which conservative elites ultimately rely. And therein lies the problem. There is a mismatch between the communitarian impulses informing the new thrust for national conservatism and the regional Antifederalist-populist tradition of its target audience. One need only imagine how poorly a ‘common-good conservative case for federal vaccine mandates’ would play to see the limits. Unless this tension is resolved, I am unsure which way represents the best political path forward for achieving the jurisprudential results that are ultimately the aim of my previous arguments.

My proposal, then, is simple. The localist, agrarian, decentralized tradition of the Antifederalists must be untethered from the doctrinaire libertarianism and value-free proceduralism with which it has become associated. It must be reunited with the natural law tradition to fashion a jurisprudence—and a culture—whose concern is not merely local control for the sake of local control but an embrace of the moral tenets underlying the classical legal tradition. We must marry Antifederalist sympathies, which recognize the dangers of concentrating power in the hands of a governing class whose values are alien to the governed, to the holistic conservative jurisprudence, which requires an acceptance of a broader role for state action in the maintenance of common culture and public virtue. In short, Antifederalist procedure, natural-law substance; subsidiarity and solidarity.

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790