Text-Skepticism and Conservatism
Or, Two Kinds of Law
For a while now I’ve been tracing this thread of general conservative skepticism toward the written word.
A weird obsession, I know…
It’s actually very old, and I think it binds a certain kind of conservatism to both anarchism and a certain flavor of young adult “everything is actually subjective” leftism.
We find text-skepticism in Joseph de Maistre’s conservative critiques of the French Revolution from 1809. As much as he hated the revolutionaries, he hated one of their assumptions even more:
One of the grand errors of an age; which professed them all; was, to believe that a political constitution could be written and created à priori…that which is most fundamental, and most essentially constitutional, in the laws of a nation, is precisely what cannot be written.
In the US Constitution, we sort of make a nod to this mysterious terrain beyond the written world with the (literally never discussed) Ninth Amendment (1791):
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
In other words, people have rights that exist outside of the written Constitution. In his critique, De Maistre even goes on to theorize that
That the weakness and fragility of a constitution are actually in direct proportion to the multiplicity of written constitutional articles.
That is, the act of writing something down endangers its existence. We can think of this as a kind of theory of social self-consciousness. Like, we were already doing the thing naturally, but then in raising it to constitutional awareness, we, in a sense, offer it up for critique, thus endangering it.
I personally find this theory underaddressed and totally fascinating.
Anyway, (*pivoting*), in his famous manifesto, in a section on “Some Principles of History,” Ted Kaczynski (the Unabomber) wrote in 1995 that
A new kind of society cannot be designed on paper. That is, you cannot plan out a new form of society in advance, then set it up and expect it to function as it was designed to do…People do not consciously and rationally choose the form of their society. Societies develop through processes of social evolution that are not under rational human control.
Along with being a clear-headed critique of some degenerative elements of modern technological “progress,” Kaczynski’s manifesto was also skeptical of the written word—ironically, it was also a 35,000-word polemic.
Just last year at the National Conservatism Conference, our now-Vice President J.D. Vance offered skepticism toward our written ideals
One of the things that you hear people say, even on our side, is that America is the first “creedal nation,” that “America is an idea.” Now, America has really good ideas…but America is not just an idea…America is a nation it is a group of people with a common history and a common future.
This is often interpreted—rightly and wrongly—as a kind of ethnonationalism. In the same speech, Vance lifts the idea of Iroquois “seven generations thinking” to talk about how he hopes he and his children will be buried in the graveyard in Kentucky where his ancestors are. Sure. A few years earlier, another Trump ally, Steven Bannon, also pushed beyond the high-minded idealism of our Enlightenment founders:
I’m a huge believer that we are…a country that has a culture and a civilization and citizens and Americanness to it all, right? And that’s a country. If that’s called blood and soil, then so be it. But we’re a country, we are a thing, with a people and a set of customs and traditions. We’re not some idea. I hate the concept that America is an idea.
The real constitution is in our natural laws as an American people, not the dumb shit we write down. But this acknowledgement of the tension between the written and unwritten is as old as the West. In Greek jurisprudence it was recognized that
Among the laws that govern us…some are written, and others are unwritten. Nothing can be more simple or profound.
One practical example emerges when no written constitution exists. For instance—I mean, this is really obvious when you think about it—when we declared independence from England, there wasn’t a US Constitution yet to cite to justify its legitimacy. Where did Jefferson turn?
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
One high-stakes domain where this distinction between written and unwritten values exists is in our courts. For something so vital, the word “law” in the English language is shockingly ambiguous.
There are natural laws like the second law of thermodynamics that says (who says?) that heat flows from hot to cold; there are natural instincts (laws of nature) like the law of self-preservation that causes a rabbit to run when seeing a fox or the general thrust of life to reproduce; many throughout history have believed that there are universal moral laws too, like “thou shalt not kill.”
Within the legal field, there is a very old distinction between written laws (lex) and these kinds of traditional moral background principles (ius). Today, when we hear the word “law,” most of us think about the former written kind—traffic rules, anti-discrimination mandates, etc.—and think much less about the moral basis for society.
Again, the fact that in English we now have only one word for these two things is unbelievable: law!
One confusing trend today is a conservative push away from written laws (lex) and back toward a general focus on moral principles (ius). This, I think, is the general domain that most of the above conservative actors are thinking in. The most high-profile of these trends is the insurgence of Adrian Vermeule’s “common good constitutionalism,” which has been called a Trojan horse for “Christian authoritarianism,” a “shadowy Catholic plot to seize power,” and “a radical theocratic legal philosophy.”
For our purposes here, Vermeule’s argument is that, whether progressive (RIP Ginsburg) or originalist (RIP Scalia), our justices today operate with a veneer of objectivity but are riddled with unclarified personal moral commitments. For Vermeule, before getting lost in case law, there should be a burden on justices to clarify their philosophical commitments, not in reference to some old case law, but rather in transcendent moral principles. It’s not about what was written, but rather how human society has and should work.
Basically, Vermeule is upset that our legal system has collapsed from its moral obligations into bickering about the meaning of what James Madison wrote at one point and what he meant, for instance, by “equality.” Honestly, who the fuck knows?
If you believe in racial equality, tell me why more of it will improve our society, not the details of the Bakke case. If you believe that corporate monopolies should have the right to rule over a public, tell me why that leads to “the good life.”
If you are unable to build a coherent moral worldview based on sound moral principles, you should not be a lawyer, let alone a judge, regardless of how good you are at reading and debating.
When people say that the public has “lost trust” in the courts, I think this is what they mean. There is a necessary burden on our elites to explain themselves in a common rather than uncommon sense. I don’t agree with Vermeule on many of the specifics of law, but I do think that what he’s pointing toward is something of value: that as our laws and cases have accumulated since our founding, in some important sense we’ve lost our way.