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Adrian Vermeule’s Nosebleed

Originalism has plenty of tools within itself to advance the common good.

Catholics have been debating how—and how much—the state should regulate morality for centuries, long before today’s Ahmari-French debates on the Christian right. St. Thomas Aquinas taught that the natural law, graven on the heart of every man, reflects the eternal law of God. Aquinas tasked rulers with determining (determinatio) what legislation is needed to embody the natural law in a given place and time. But the saint warned that it’s not always prudent for human law to “suppress all vices” among the people:

Human law should lead men to virtue, not suddenly, but gradually. Thus, it does not lay upon the multitude of imperfect men the burden of the already virtuous, to abstain from all evil. Otherwise these imperfect ones, unable to bear such precepts, would break out into yet greater evils. Thus it is written: “He that violently bloweth his nose, bringeth out blood.”

The latest intervention in the ancient Catholic debate about how human law ought to reflect the natural law is Adrian Vermeule’s recent piece at The Atlantic entitled “Beyond Originalism.” Vermeule, a Harvard law professor, advocates a “common good constitutionalism.” Much like Hadley Arkes before him, Vermeule proposes turning progressives’ Warren Court-style “living constitution” methods to the socially conservative, somewhat authoritarian end of legitimating a bureaucratic state explicitly oriented toward a substantive vision of the common good as defined by the natural law ethical tradition. Vermeule offers his typically well-argued, thought-provoking opposition to the originalist theory of Constitutional interpretation (a wag might say exegesis) regnant on the American Right. His piece is excellent, and you should read it.

But I come to bury Caesarism, not to praise it. Vermeule’s proposal for a “common good constitutionalism” would throw away the best opportunity we’ve had in generations to advance the natural law as a guiding principle in American life. Why? Because he insists on entangling his Ahmarist integralism, and his desire for a polity governed by a substantive vision of the common good—both of which all Catholics should support—with his opposition to originalism and his scholarly advocacy for an authoritarian bureaucratic state, which Catholics need not support, and Americans never will.

In short, I’m not here to whine that Vermeule is a big, mean, scary theocrat, a boogieman threatening liberalism. Professor Vermeule seems to take the critics of his latest bit of performative authoritarianism as all liberals of the Rawlsian progressive left, the Millian social libertarian middle, or the classical liberal Lockean right valorized by Reaganite fusionists. But I’m no more a liberal than Vermeule is—I’m an integralist, too. I’m here to attack Vermeule’s jurisprudential vision not from his Frenchist or Rawlsian left, but from the Ahmarist right.

The problem with Vermeule’s proposal from a conservative Catholic perspective isn’t that he’s an unapologetically reactionary theocrat—so am I—but that his proposal is another bit of modernist utopianism, sure to be as brutal, yet brittle, when confronted with political reality as Enlightenment absolutism, Jacobinism, Leninism, Nazism, and Qutbism have all proved in their turn. Although because it is catholic it must be cosmopolitan, Catholicism is not just an intellectually deracinated, abstractly ideological modernist utopianism like Marxism or Salafism. 

Catholicism is a sacramental, incarnational faith, and it must inculturate in accord with what the 18th century reactionary Catholic monarchist Joseph de Maistre and the 19th century American Catholic republican Orestes Brownson both called the “providential constitution” of each nation. Even before any written constitution, every nation has its own character, and comes into being as a people with its own germinal determinatio of the law—as Maistre quipped, the Salic Law wasn’t written in a book, but graven on the hearts of Frenchmen. This organic, unwritten constitution might be called a “providential constitution,” for it is slowly shaped through each people’s history by God.

Maistre and Brownson agreed that prudent determinatio of the law must accord with each nation’s providential constitution. Maistre sagely warned that the Jacobins’ democratic, republican constitution violated the providential constitution of ancien régime France. But with a Chestertonian flair for paradox, Brownson applied Maistre’s principles to defend the providential constitution of the American Republic: “The constitution was determined for us by the Providence of God, which so ordered it that only the commons emigrated, and so created and arranged circumstances to compel us from sheer necessity to live under a government from which royalty and nobility are excluded.”

Brownson saw the unique American system of Federalism as enabling a “territorial democracy” within the states, rooted in the indissoluble union of those states, which balanced the centralizing humanitarian reformism of the North against the decentralizing aristocratic paternalism of the South. In our present Cold Civil War, these aspects of the American national character, embodied in the blue state and red state political coalitions, are still vying for control of our national destiny.

Taking a cue from Nazi-aligned German conservative political theorist Carl Schmitt, Vermeule has argued that democratic electoral politics is more likely to make Catholics liberal than to make liberalism Catholic, and has accordingly advocated kind of conservative version of the Gramscian “long march through the institutions” to complement his conservative version of living constitutionalism. He has written that Catholic integralists should focus on “eventual integration effected from within institutions currently extant in liberal-democratic orders, [which] focuses on executive-type bureaucracies rather than on parliamentary-democratic institutions per se.” In his latest for The Atlantic, Vermeule tells us that “common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy,” and that this “bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule”

While the countrymen of a Maistre or a Schmitt might welcome all this as “the strong hand of legitimate rule,” Vermeule’s advocacy for an authoritarian bureaucracy, and his Schmittian disdain for democracy, are incompatible with America’s Brownsonian territorial democracy, and with the widespread loathing of bureaucracy that seems to form an ineradicable part of the American character, and thus of our providential constitution. Any attempt to impose a kind of moralizing, Catholic version of Colbertist dirigisme or Prussian cameralism in America would be as reckless as the utopian rationalist imposition of Jacobinism upon the providential constitution of ancien régime France.

Brownson, like Maistre, warned against “the naïve view of the philosopher and statesmen of the eighteenth century that the tyranny of the majority could be restrained by a written constitution.” Instead, he hoped that the higher principles embedded in our providential constitution would restrain the excesses of the mob. Indeed, Brownson’s hopes in this regard were positively Vermeulean.

But as Brownson borrowed Maistre’s principles to defend democratic republicanism, I’ll have the temerity to perpetrate a Brownsonian paradox of my own: experience has proven that America’s providential unwritten constitution includes a strong felt opposition to being governed by any “living” constitution, be it secularist or integralist. Originalism is the instinctive interpretive theory most Americans bring to public debates about our Constitution—not merely something Robert Bork cooked up in a “defensive crouch” in response to the excesses of the Warren Court, but the authentic American tradition of constitutionalism, with deep, ancient roots in the English common law’s canons of statutory construction.

Moreover, originalism already provides us integralists who want to see American law reoriented toward the natural law with solid arguments to establish protections for fetal personhood at the federal level, ban porn, ban gay marriage, and even restore the Early Republic’s establishments of religion in the states. Indeed, Vermeule notes in his Atlantic piece that “in 1811, the New York courts, in an opinion written by the influential early jurist Chancellor James Kent, upheld a conviction for blasphemy against Jesus Christ as an offense against the public peace and morals.” If Founding Era jurisprudence allowed the states to criminalize blasphemy against Jesus Christ, then why does Vermeule’s integralist project need to abandon originalism?

An important entry on the Ahmarist side of the current debates, Patrick Deneen’s book “Why Liberalism Failed,” ends by advocating something like the Benedict Option articulated by TAC’s own Rod Dreher. Vermeule has rightly observed elsewhere that such local communities would always be at the mercy of a liberal state. But originalism doesn’t condemn us to that. It allows us to create thick moral communities that treat statecraft as soulcraft at the state level. Unlike an agrarian commune or an urban parish, the red states, allied with originalist judges and a substantial bloc of culturally conservative legislators in Congress, would be sufficient to protect their own statewide Benedict Options writ large, their own revived blue laws and perhaps even ecumenically Christian (or Judeo-Christian) establishments of religion. And doing determinatio of the natural law into positive legislation at the state level accords with our providential constitution of territorial democracy.

So we don’t need the Roberts Court to seize the Warren Court’s ring of power in order for the people of the states to be free to pursue the common good of ordered liberty. By attempting to impose natural law this way, conservatives would provoke a powerful backlash. We would lose elections—which control who staffs both Court and bureaucracy—and be faced with Court-packing, aggressively secularist regulation, and much worse besides.

Progressive Americans will not accept a conservative settlement of moral questions imposed by Court and bureaucracy upon the blue states any more than conservatives have accepted Roe and Obergefell. All we need the Court to do is to cast the ring of living constitutionalism into the flames and destroy it. Then our territorial democracy can begin the restoration of the natural law in the States, and the shadow of secularism will begin to pass from the land.

I share Vermeule’s zeal for the natural law, and his commitment to Catholic integralism. But he aids the cause of secularism by serving as a bugbear of theocratic tyranny. As Rick Hills has pointed out, Vermeule seems to go out of the way to troll his critics by restating Dworkinian progressives’ living constitutionalist platitudes in an authoritarian conservative key.

Professor Vermeule can better serve the cause of Catholic integralism by pairing his laudable zeal for the natural law and for statecraft as soulcraft with a statesmanly rhetorical restraint in better accord with sensibilities shaped over centuries by the democratic republican traditions of America’s providential constitution. I would respectfully suggest to the learned professor that if he continues to puckishly troll the American democratic and scholarly publics with visions of an authoritarian bureaucracy that suppresses all vices, the integralist project he has seemingly made his life’s work risks being the work of a hero with a tragic flaw—an admirably pious and zealous, impressively clever, scorchingly witty, but recklessly imprudent crusader for Christendom who “violently bloweth his nose, and bringeth out blood.”

Thomas FitzGerald is a writer who lives in Texas.



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