Adrian Vermeule’s Moral Madness
One can critique the limits of freedom and excesses of libertarianism without echoing the nihilism of totalitarians.
Adrian Vermeule is one of the self-styled leaders of the minuscule cadre of “Catholic integralists” who see most of the West’s post-Enlightenment political developments as disastrous. Last week, he set the insular legal theory wing of the internet aflame with a characteristically provocative essay in The Atlantic titled “Beyond Originalism.”
In it, Vermeule argues that originalist constitutional philosophy has run its course. His essay advocates instead for a “common-good constitutionalism” based on “the principles that government helps direct persons, associations and society generally towards the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” Such an approach, Vermeule explains, involves reading “a substantive moral constitutionalism” into “the majestic generalities and ambiguities of the written Constitution.” That means abandoning “the defensive crouch of originalism” by refusing “any longer to play within the terms set by legal liberalism.”
All this no doubt sounds familiar to left-wing American legal theorists. And sure enough, Vermeule deploys the well-known arguments of progressive constitutional scholars like Ronald Dworkin (“common-good constitutionalism is methodologically Dworkinian, but advocates a very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent,” he writes) to make his case. Throughout his essay, he echoes the traditional Dworkinian critique of the pretensions of amoral constitutional interpretation, writing that “constitutional decisions that claim to rule out ‘morality’ as a ground for public action are incoherent, even fraudulent, for they rest on merely a particular account of morality.”
Since the essay was published, it’s been amusing to watch left-wing Dworkinians contort themselves into knots trying to explain how Vermeule is a crypto-fascist despite his explicit use of their preferred arguments for his own “moral reading” of the Constitution. Yet on the merits, what Vermeule says is wholly unconvincing.
Vermeule seems entirely uninterested in defending his judicial philosophy against any of the well-established and predictable objections to it. At times, this unwillingness to address even the most obvious originalist objections leads one to suspect that he may well be implicitly conceding their truth.
For example, Vermeule is certainly aware of long-standing conservative concerns over the soft tyranny of an administrative state unaccountable to democratic governance. Yet his advocacy for “a powerful presidency ruling over a powerful bureaucracy [which] will be seen not as an enemy, but as the strong hand of legitimate rule” seems only to confirm that skepticism. In a 2018 essay, describing his vision of a Catholic theocratic bureaucracy that would work within the traditional constraints of liberalism before eventually overcoming them, Vermeule wrote:
Catholics deny that liberalism has any best self to which it might somehow be recalled. They work within a liberal order towards the long-term goal, not of reaching a stable accommodation with liberalism, even in a baptized form, but rather with a view to eventually superseding it altogether…as a stage towards an integral restoration of Christendom. That is, Catholics [are] to work for the common good in the current un-ideal framework of a state that [does] not recognize the superiority of spiritual over temporal authority, [hoping] that this would lead eventually to a restoration of an integrally Catholic state.
Yet what if those same Catholics end up as horrible oppressors? What if they never achieve the common good? These obvious and classically conservative objections are left unaddressed by Vermeule.
Regardless of his theocratic aspirations, Vermeule’s constitutional philosophy itself is nonsensical, given that it openly advocates the dissolution of the very constraints that characterize a constitutional order. Vermeule, it seems, would have us all become living constitutionalists of a sort, faithful to our partisan preferences above any objective understanding of the Constitution. Yet if we, as conservatives, are to take Vermeule’s philosophy to heart and abandon originalism, as he hopes we might, why not just abandon the pretense of the Constitution altogether? If constitutions are to be emptied of any static meaning and subjugated to our personal policy preferences in accordance with some vision of the “common good,” what’s the utility of having one in the first place?
It isn’t entirely implausible that this is what Vermeule really wants. He makes no effort to conceal his contempt for limits on state power and his affinity for a more openly authoritarian political system. In his own words, he is largely uninterested in trying to “minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well,” and he seeks to “promote good rule, not to ‘protect liberty’ as an end in itself.” To that end, his political philosophy “does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits…exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them.”
Herein begins the part of Vermeule’s articulated philosophy that should be disturbing to anyone who wants to conserve the political and legal institutions of the Anglo-American tradition. Limited and representative government, the rule of law, and other political features of Western liberal democracy seem to be of little regard to Vermeule. At its most coherent, “illiberal legalism”—Vermeule’s own description of his legal philosophy—would replace the wide sphere of pluralistic freedom that has shaped the character of the American experiment with an unaccountable and faceless state bureaucracy. At its least coherent, it’s an unimpressive attempt to develop a legalistic rationale for an autocratic system that would allow him to impose his personal policy preferences on everyone else.
Understanding this, one might reasonably ask: what happens when, having committed ourselves to this explicitly authoritarian constitutional philosophy, the demos elect a progressive like Bernie Sanders or Elizabeth Warren? Would it surprise anyone if this “ruler” (to use Vermeule’s preferred nomenclature), despite professing a socially liberal worldview antithetical to that of Catholic social teaching, was perfectly content to use the empowered state for their own ends?
What then? Freed from the chains of checks and balances, what happens when the paternalistic state is led by those with an understanding of the “common good” that is radically different from Vermeule’s? A state empowered to ban profligate displays of homosexuality would also be powerful enough to persecute the religiously observant for refusing to endorse same-sex unions. Vermeule’s expansion of the state might serve his interests while his ideological allies are in power, but considering how unpopular Catholic integralism is in the United States, one suspects that the Vermeullian utopia would be a brief affair. This is another painfully obvious gap in Vermeule’s argument for which he offers no answer.
Finally, Vermeule’s essay does a profound disservice to the cause of conservative constitutional theory, insofar as constitutional conservatism is understood as a judicial philosophy that advocates some consideration of original meaning in its approach to reading the Constitution. Vermeule’s entire premise serves to confirm the left-wing accusation that originalism itself is a façade. For years, progressive living-constitutionalists have indicted originalism as little more than the right-wing policy agenda, a results-oriented form of conservative judicial activism masquerading as a principled legal philosophy. When Vermeule openly advocates this view, he stains the reputation of originalism and gives credence to the progressive rejoinder. More alarmingly, he goes so far as to suggest that left-wing suspicions regarding the dishonesty of originalism were largely correct. Originalism, he writes, was “a useful rhetorical and political expedient” that “prevailed, mainly because it…met the political and rhetorical needs of legal conservatives struggling against an overwhelmingly left-liberal legal culture” and “helped conservatives survive and even flourish in a hostile environment.” But the originalist device is no longer necessary because “legal conservatism is no longer besieged.”
At its heart, then, Vermeule’s is a cold, cynically authoritarian vision shrouded in the language of “order,” “authority,” and “the common good.” Such abstractions mean little while still abstract (“is it because liberty in the abstract may be classed amongst the blessings of mankind,” wrote Edmund Burke, “that I am seriously to felicitate a mad-man, who has escaped from the protecting restraint and wholesome darkness of his cell, on his restoration to the enjoyment of light and liberty?”), and Vermeule’s larger argument is an insult to the fundamental dignity of the human person. In his capitulation to the idea that the foundational assumptions of liberal democracy are a charade, he echoes the nihilistic worldview of the various left- and right-wing totalitarian philosophies consigned to the dustbin of history.
Vermeule and his defenders often accuse their conservative critics of betraying true conservatism for an emaciated libertarianism that views the maximization of individual autonomy as the preeminent goal of political activity. Yet one need not throw out the liberal tradition to understand the limits of liberty or distinguish between liberty and licentiousness. To critique the excesses of libertarianism or value-neutral liberalism in an attempt to conserve or protect a shared moral order is a commendable, even necessary, endeavor. But to advocate the overthrow of the fundamental political achievements of the Western tradition is not “conservative” in any recognizable sense of the word. Nor, more importantly, is it morally defensible.
Nate Hochman is an undergraduate student at Colorado College and a Young Voices contributor. You can follow him on Twitter @njhochman.