I walked into Hutchins’s Hall 138 expecting a good debate on constitutional theory and some good curry-on. I was disappointed on both fronts. I’m trying to make sense of why.
I’ll be honest, I’ve been at this Law School for almost three years now and this is the second time I’ve attended a FedSoc event (the first one was the Jonathan Mitchell protest, and I loved it!). A lot of friends have told me about the nature of these events but damn, I was thoroughly unprepared for the sea of white faces and blonde hair that greeted me with suspicion (as a person of colour in this law school, you get used to the suspicion). Nonetheless, I tried to remain unperturbed. After all I was promised curry on and a ‘liberal’ voice in Prof. Mortenson. And then the talk started.
Common good constitutionalism, the topic of this talk, is a theory of constitutionalism, espoused by Harvard Law scholars like Adrien Vermeule. It posits that divorcing law from morality is an inherently futile exercise. Instead, the law as a social phenomenon must serve to further the moral concept of common good. The common good, at least according to Connor Casey (the speaker), is a millennia old concept central to western civilization which draws from Aquinas and Aristotle. It is unitary and prioritizes human flourishing which he defines to include, bodily health and integrity, the creation of new life, family, the church and a good ordered polity in general. The purpose of constitutionalism (and its attendant practices such as interpretation, law making etc etc) must be to serve this common good.
There’s a lot to like about common good constitutionalism. Except for its definition of common good and its pretence to constitutionalism. The central problem with common good constitutionalism remains the reluctance of its proponents to articulate a substantive understanding of what the common good entails and more importantly, the reasons for its claim to legitimacy as a vision we should adhere to. For now, its proponents are content to say that it is the backbone of western (read: Christian) civilization and since I am not western and do not intend to live in western civilization for much longer, I leave that to the westerners to engage with.
As a constitutionalist, you might expect me to take issue with its other claim. Connor claims that the legitimacy of the common good principle arises from beyond the constitution as a moral/legal principle writ large. According to him, we are legally and morally obligated to construct the constitution through this principled lens. We must resolve indeterminacy in positive law, by referencing the moral theory of common good. According to him, the common good is unitary and hence does not allow for pluralism, that is debate and dissent in the construction of the principle itself (he points us to slightly varying interpretations of basically the same fundamental Christian precepts. If this is his version of debate, then I think he has a larger problem to deal with.) Ultimately then, under common good constitutionalism, as a polity and through the state, we should all privilege the theological construction of the common good. Unlike other serious constitutionalists, Connor doesn’t seem to be bothered by the lack of democratic processes or the express references in most constitutional texts stating that religion should not should not form the basis for law. Connor is also not bothered about seeking out a principle from within the constitutional order itself. He’s happy to import his political preferences into constitutional law and proclaim it as the right way. Carl Schmitt would be proud!
While I’m not thrilled with this theory, I take issue with something else altogether. I take issue with Prof. Mortenson standing there for ten minutes, making obscure references to Beccaria and making cute jokes with Connor. My issue is this. This is supposedly meant to be a debate where the very least Prof. Mortenson could do is ask Connor, who is propagating a self-described authoritarian illiberal constitutional theory, a serious question. Or at the very least, him and FedSoc could let us do so? But that would be against FedSoc’s principled commitment to partisan hackery. Which brings me back to Prof. Mortenson: What were you doing up there, my guy? If this is how you (and other liberals) engage in constitutional debate, then the crisis in teaching constitutional law is not because of the Supreme Court, it’s because of you! To use a phrase Connor would, Jesus wept! (which as a side note, had he been in this talk, I’m sure he would have. I truly think the enemy of these conservatives is not the bipoc trans married person. It is Socialist Jesus. Then again, I’m not Christian so what do I know?)
My biggest issue with this talk though, was that I couldn’t enjoy the damn curry on. As I tried to enjoy that chicken tikka roll, all I kept thinking about is how this room full of people who approvingly cheered on western civilizational ethics as the basis for society and law were consuming chicken tikka so giddily? There has to be some cognitive dissonance amongst them at play here. Western civilization is good, except for the food? The fact that it was Chicken Tikka makes it particularly mind boggling given that Chicken Tikka is the universal (okay maybe it is just the English) symbol for pluralism and the accommodation of multicultural diversity . I know that asking the FedSoc to stop being partisan hacks is impossible but can I atleast get a commitment from FedSoc to stop ordering curry on and other ‘ethnic’ multicultural food. It’s antithetical to their mission and I would think to the unitary vision of a common good (you could make the argument that ordering a dish that is a stark reminder of colonialism is actually FedSoc being true to American Constitutionalism, but that would require you to think that the FedSoc is actually intelligent and making a well disguised acknowledgement of the duality of colonialism and the co-opting of accommodation. Come on! You can’t seriously be giving FedSoc that much credit.). To be true to the unitary principles FedSoc espouses, it must go back to eating bland sandwiches from Jimmy Johns. From what I smelt and heard during the talk, I don’t think FedSoc stomachs can handle chicken tikka anyway.
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