Is There a Constitutional Common Good?

Journal of Catholic Legal Studies Volume 60 Number 1 Volume 60 Article 3 Is There a Constitutional Common Good? R. George Wright Follow this and additional works at: https://scholarship.law.stjohns.edu/jcls This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in Journal of Catholic Legal Studies by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . IS THERE A CONSTITUTIONAL COMMON GOOD? R. GEORGE WRIGHT† INTRODUCTION Identifying and pursuing some widely shared idea of the common good seems central to a sustainable constitutional order. This may seem especially true in an era of deep political division. The problem, though, is that such political division may indeed heighten the need for recognizing and promoting a shared constitutional common good, while, at the same time, preventing such an identification and pursuit of any such common good. What is needed is a way to disrupt this vicious circle. This Article is an illustration of the operation of this vicious circle and, more optimistically, a proffering of the means by which this vicious circle can ultimately be disrupted. To some degree, increased attention to familiar basic virtues can perform the vital constructive role. Consider first, as an entryway, the idea of polarization itself. The United States has long experienced increasing polarization in the constitutional realm.1 The idea of polarization, of course, implies clustering at opposite ends of a spectrum. But the idea of increased polarization in this sense actually tells us little. We need to know much more about the specific nature of our polarization. The metaphor of polarization itself does not, for example, tell us whether the polarization process has been accelerating. It does not tell us about the “distance” between the poles—or whether that distance has itself been increasing. It does not tell us whether there is more than one, or perhaps many, distinct axes of polarity. It does not tell us about the causes, grounds, emotional intensity, or stability of the polarization. Nor does the idea of polarization itself tell us about any asymmetries of the polarization, including the relative sizes and differing degrees of fervency and implacability at the relevant poles. And the idea of polarization † Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law. The author’s thanks are hereby extended to Marc O. DeGirolami, Michael J. Perry, and Steven D. Smith. 1 See infra Part I. 59 60 JOURNAL OF CATHOLIC LEGAL STUDIES [Vol. 60:59 certainly does not capture any sense of resulting fragmentation, disintegration, or other possible eventual outcomes. The idea of polarization itself thus does not capture anything like the essence of our contentious circumstances in matters of constitutional law. We explore a number of the further complications of polarization below. One possible response to constitutional-level polarization and its various complications on clearly vital matters would be to encourage increased attention to the idea of a genuine common good in the constitutional realm.2 How, one might imagine, could anyone responsibly object to an increased focus on identifying and appropriately pursuing a genuine common good at the constitutional level? Attention to a genuine common good need not distract from equally genuine injustice. Indeed, such attention should heighten, and intensify, our concern for basic injustices. Surprisingly, though, there turns out to be only a modest payoff in focusing directly on the idea of a constitutional common good. There are, to begin with, serious problems in defining and conceptually analyzing the very idea of a common good, in general and at the constitutional level.3 And there are then even more complex problems in meaningfully identifying the genuine common good, in substantive terms, in virtually any interesting case.4 It is not as though there is currently a reasonably broad consensus on the constitutional common good at a fairly general level, with disputes on the details. Instead, what is crucially missing is anything like a reasonably broad consensus on even fundamental constitutional matters. Our basic disputes are then typically compounded, rather than mitigated, across substantive policy issues. The result is that attempting to define, identify, and promote a constitutional common good will, inevitably, largely just mirror the substance, and the pathologies, of our constitutional disputes as they already stand. Debates that are directly focused on a constitutional common good will thus largely just reinscribe, or unproductively translate, our familiar current constitutional arguments into the terms of the search for a purported common good. And this is hardly a matter of squabbling over issues of relative detail. Largely recasting our present constitutional disputes in terms of identifying and 2 See id. See infra Part II. 4 See infra Part III. 3 2022] CONSTITUTIONAL COMMON GOOD 61 pursuing a genuine common good, however initially appealing, thus turns out to be hardly worth the effort.5 This surprising conclusion indeed holds, but with an important qualification.6 Even if the idea of a meaningful substantive constitutional common good is otherwise an illusion, investigating that idea can inadvertently steer us, more constructively, toward what most cultures think of as basic virtues and vices of character. Those virtues and vices certainly have, in context, their own controversial constitutional-level implications. It is easy, in our culture, to deny virtue in one’s political opponents. But the genuine basic virtues have real survival value for those who cultivate them, and, crucially, much broader social value as well. Basic virtues have important favorable spill-over effects. The basic virtues and vices hold, ultimately, some potential for helping to identify, and then to meaningfully contribute toward furthering, whatever we then may take the constitutional common good to involve.7 I. THE QUESTION OF A CONSTITUTIONAL COMMON GOOD: THE CURRENT CULTURAL CONTEXT Of late, it has been claimed that our current political culture is one of rising extremism.8 This may well be true of our present moment.9 But it is also clearly established that the underlying bases for political extremism10—along with polarization,11 mutual 5 See infra Parts II–III. See infra Conclusion. 7 See id. 8 See, e.g., Anne Applebaum, The Answer to Extremism Isn’t More Extremism, ATLANTIC (Oct. 30, 2020), https://www.theatlantic.com/ideas/archive/2020/10/leftand-right-are-radicalizing-each-other/616914/ [https://perma.cc/HLL8-QB2J]. Given the “Prisoner’s Dilemma” quality of our contemporary politics, it is more common to condemn the extremism of one’s political opponents than to condemn any broader phenomenon of increasing extremism that might also enco (...truncated)