Last week, in the wake of the tweetstorms that launched a thousand thinkpieces, social-conservative interlocutors David French and Sohrab Ahmari squared off at Notre Dame—the second of two live conversations. The “debate”—or, more accurately, the discussion—was an extension of their ongoing argument over the future of the American cultural right. To distill the argument down to its essence: against French’s embrace of constitutionalism, limited government, and liberal-democratic proceduralism. Ahmari advocates a more “muscular” conservative politics unafraid to advance a substantive vision of the common good.
As most onlookers are well aware, there are real, crucial questions at issue here—questions rooted in first principles of theology and politics. But alas, the Notre Dame discussion was an exercise in incommensurables. French, ever the constitutional litigator, made arguments about legal doctrines and the American Founding, while Ahmari decried social conservatives’ complicity in the mainstreaming of behavior once considered deviant—in particular his bête noir, “Drag Queen Story Hour.” Neither man would engage on the other’s ground, so the conversation quickly deteriorated into a pointless wall of words: French kept falling back on stultifyingly technical analysis of legal principles, and Ahmari kept banging the cultural-decadence drum without the slightest attempt to truly theorize his concerns.
It’s probably safe to say that everyone who watched the debate wanted more than what unfolded on the stage. I spent a fair bit of time pondering the exchange, and tend to think that perhaps an analysis of each side’s “victory conditions”—that is, the first principles that must be demonstrated for one “side’ or the other to claim victory—might help shed light on how the debate should have gone.
As I see it, in order to win the argument, Team French needs to establish that there is a profound moral grammar underlying American constitutionalism and that that moral grammar is the best description of reality. That moral grammar looks something like this: Human beings can dimly apprehend and affirm the Good (that is, God), and human beings can become aware that there is an order within nature that ought to be respected—an order that serves as the backbone of any legal system. This is what the Declaration of Independence’s invocation of “the Laws of Nature and of Nature’s God” is getting at, and it is the basis of a properly functioning political system. (To be sure, Team Ahmari would agree on all of this.)
But Team French and Team Ahmari appear to diverge when it comes to the “thickness” of that order within nature—that is, the extent to which it can intelligibly inform our collective decision-making. Team French might assert, for instance, that the doctrine of the Trinity is not self-evident to human reason, so assent to the doctrine ought not be required for someone to participate in political life. (And so a crude concept of religious liberty emerges.) Team French might further assert that it is not evident, as a matter of natural law, that the government ought to ban marijuana smoking—and so it is legitimate to reserve these questions to the democratic process, which (ideally) is informed by virtuous citizens whose moral sensibilities have been formed by churches and families.
The theoretical basis for this stance is fairly easy to articulate: if human beings’ ability to know the nature and will of the Good is somewhat limited (whether by finitude, sin, or something else), their claims should also be limited. On this account, it is profoundly evil to enforce a potentially degenerate concept of the Good—that is, demand state-dictated idolatry. For instance, since it is possible that Calvinist theological doctrines are wrong, torturing and killing Arminians could never be justified. Accordingly, Team French might argue that constitutionalism and liberal democracy—which structurally restrain the power of the state to enforce a concept of the Good outside certain narrow parameters—best accounts for limitations on human knowledge and is least likely to lead to idolatry. A hands-off approach, in short, best enables citizens to come to the Truth.
Team Ahmari (or at least a more theoretically developed Team Ahmari) would disagree that the human capacity to know the Good is essentially limited. The Catholic Church’s magisterium—and in particular the Pope, the Vicar of Christ who speaks infallibly—provides an epistemological backstop to all claims made about “the will of God.” Team Ahmari thus has a clear lodestar for policymaking: what the Church says is good is what ought to be done. (And so we reach a form of what is called “integralism.”) To prevail over Team French, Team Ahmari therefore must demonstrate that the Catholic Church really is what it claims to be: the sole institutional representative of Christ’s Church on earth.
As should be clear, the French-Ahmari clash really is at bottom a Protestant/Catholic divide (I’m not the first to note this, but the debate hasn’t really been framed in terms of ultimate authority principles.) Ahmari’s fundamental optimism about the possibility of building an American society that really does attain the Good is rooted in the epistemological authority of the Catholic Church. Conversely, French’s concern over possible abuses of power structures by fallen humans is rooted in Protestant rejection of a single institutional church that alone holds the keys to the Kingdom. This is the debate that should have played out at Notre Dame—but it was not, and all onlookers are the poorer for it.That said, here are a few thoughts of my own on how the conversation has evolved—and possible paths that future deliberations might lead down.
Beyond the fundamental Catholic/Protestant issue (which is unresolvable within a strictly political frame), it seems to me that a large part of what Ahmari repudiates—in the exchanges that originally kicked off this conversation—is the implicit notion that it is possible to have a purely “procedural” politics that does not, ultimately, rest upon ultimate claims about the Good. On that, I agree with him.
Many conservative policy leaders seem to have internalized the assumption that it is illegitimate for one’s beliefs about the Good to influence policy decisions. On this way of thinking, the “right choice” is not to make any changes to anything, ever—a good conservative leaves existing policy infrastructure in place but blocks any new expansions of “big government.” But what this misses is that the status quo is not a kind of neutral equilibrium—built into the status quo are assumptions about the Good that were held by previous generations, and inaction simply endorses those prior assumptions. One may claim that “big government is a problem”—but “big government” is doing something or other right now, and if “big government” could be redirected in a way that better promotes the Good, why shouldn’t it? That, I think, is essentially what Ahmari and those who agree with him are getting at.
And this is also where French’s case is weakest: in response to Ahmari’s “the building is on fire,” French seems to be saying in response “don’t use a water hose to put it out, because you might bring the whole thing down on our heads.” And that is where the conversation stops—without French ever having to address the fact that, well, the building is on fire.
This temptation—to hide from first principles under the cloak of formalism—is a permanent pathology of lawyers as a group. When I was in college, one of the core classes all students took was “Freedom’s Foundations”—a study of the Western tradition of political theory. In that context, I (along with most of the other law school-bound sophomores in the class) was persistently obtuse: I could not figure out what the point of Plato and Aristotle and Tocqueville was, because we had built the “best of all possible worlds” and (pace Francis Fukuyama) we’d reached the “end of history.” Instead, what really mattered to me were the various legal tests and doctrines that the Supreme Court had constructed to protect our rights, which all made sense and were the most defensible structures anyone could’ve come up with.
That willful blindness to first principles didn’t last: Yale is the epicenter of the legal realist tradition, which tore away the mask of doctrinal formalism and revealed that there’s no such thing as truly “neutral” legal reasoning. If I learned nothing else in law school, I learned that law is never actually “just procedure”: it reflects the essential moral commitments of a particular society.
Nevertheless, it’s very easy for all lawyers—especially those who weren’t doused in legal realism from day one—to slip back into a “professional” or “doctrinal” mode. Although the various tests and doctrines and concepts that courts have come up with to modulate power don’t have any real claim to transcendental validity, whenever “religion in public life” comes up for discussion, it’s very easy just to invoke the current framework of First Amendment law as a discussion-stopper. (This is, ironically, the same appeal-to-authority smokescreen used by those who blindly invoke “science” to support a challenged claim.)
Here’s the bottom line: for those like me who share French’s Protestantism—and who generally think the American constitutional order is pretty successful, even if it has its flaws—this kind of “doctrinal argument” is not good enough anymore. This is not a time to argue about particular cases, particular legal axioms, and particular sets of facts—the current conversation is about universal founding principles that set the entire terms of the argument. Until the conversation moves beyond reflexive appeals to the status quo, the discussion will never progress in the direction it needs to—the inescapably theological direction.