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April 7, 2020 10:02 AM

Harvard Law professor Adrian Vermeule recently wrote an article for The Atlantic magazine in which he argued that the American conservative constitutional doctrine of originalism had reached an end and the US Constitution should be re-understood to focus on on the "common good." Vermule: "As for the structure and distribution of authority within government, common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule. "
Reaction was .... swift:
Ramesh Ponnuru: A Harvard professor's unsound attack on constitutional originalism. Randy E. Barnett: Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution Eric Levitz: No, Theocracy and Progressivism Aren’t Equally Authoritarian Matt Ford: The Emerging Right-Wing Vision of Constitutional Authoritarianism

Kevin Williamson (himself no stranger to trolling, deeply reactionary views, or The Atlantic): Dungeons and Dragons and Jurisprudence

I suppose there is an ethical objection to be made to the extent that Harvard professors have a positive professional obligation to try very hard not to write stupid things.

It seems too elementary to need to be said, but: We write down laws for a reason. And if we are not to be bound by what the laws actually say, by what we have written down, then there is no law in any meaningful sense. There is only power and rhetoric — which, in fact, is the main contention of “critical legal theory,” which is founded on the familiar Marxian notion that everything is, when seen straight on, about the eternal class struggle. Critical theorists just dig out the ugly truth behind the façade of liberalism, democracy, human rights, whatever. I believe that Professor Vermeule has enough wit to understand that he and others like him have simply taken the intellectual apparatus of progressivism, with its contempt for individual liberties and its faith in the magisterial state, and proposed filling that box with right-wingery rather than left-wingery, albeit right-wingery of the anti-capitalist and anti-liberal kind: Not only will we have to do away with “libertarian assumptions central to free-speech law” but also “libertarian conceptions of property rights.” Another way of saying “libertarian conceptions of free speech and property rights” would be “free speech and property rights.”

This is a familiar kind of silliness, even sillier than Professor Vermeule’s dreaming of a fantastical “Empire of Our Lady of Guadalupe” accompanied by “the world government required by natural law.” That is not politics — that is a right-wing Catholic fantasy role-playing game, Dungeons & Dragons but slightly dorkier and much more sanctimonious.

Above The Law: Hey, Can Someone At Harvard Law School Check In On Adrian Vermeule?

Could this whole thing have just been a swipe — planted in the very opening paragraph of the first piece — at the line “We are all originalists now,” a phrase that no one seriously uses and that Elena Kagan probably regretted seconds after she let it slip from her mouth. Could this whole thing be Vermeule’s long con that liberals are coopting Originalism just as adeptly as conservatives could coopt his straw argument vision of living constitutionalism? And if that’s the whole point, then it’s not really satire, it’s an explicit call to more nakedly pursue right-wing ideology through the judiciary lest liberals someday win a battle for what “original” means?

Thomas Aquinas versus Adrian Vermeule

For those who have followed Vermeule’s writings over the past four years, this essay contained no surprises, either in content or rhetoric.

In essence, Vermeule wants conservative judges to start behaving in a manner akin to the way that some left-liberal judges behave in practice, and how a significant number of left-liberal legal theorists think judges ought to act: that is, issue rulings that unabashedly promote conventional left-liberal ends in order to realize a left-liberal society.

In Vermeule’s scenario, interpretation of the U.S. Constitution simply becomes a conduit for conservative judges to attain various goals identified by Vermeule. Legal scholars such as Lee Strang, who are decidedly not in the business of promoting left-liberalism or legal positivism, have responded by illustrating the problems associated with Vermeule’s characterization of the written Constitution as “majestic generalities and ambiguities” which Vermeule believes can be skillfully used to realize what I think effectively amounts to a corporatist political and economic order.

Picking the Best Fight with Adrian Vermeule

The really urgent question, therefore, is not whether Vermeule is right or wrong in his abstractions. It is whether or not Vermeule really means to endorse the very specific prescriptions that this raft of tyrants wants to sell. Does Vermeule support Orban’s buying up the major media sources in Hungary and chasing away an independent university? Does he support the Polish Law & Justice Party’s law criminalizing expression about Poles’ lynching massive numbers of Jews following World War II? Does he think that the Hungarian government should launch criminal prosecutions of investigative journalist András Dezső? He is fond of invoking Schmitt’s friend-enemy distinction. In his ideal integralist republic, are Jewish citizens friends or enemies?

Those are the questions on which, I think, Vermeule needs to be pressed. Honestly, I am not sure how he would answer. After all, he and Cass Sunstein have endorsed Lon Fuller’s “thin” theory of “rule of law.” It might be that he would also safeguard, in the name of Catholic “dignity,” the sort of freedom, academic and otherwise, from which provocative writers like himself (and their audiences) benefit so much.

Who knows? But don’t ask, and he won’t tell. Engaging only with high abstractions of political theory lets him off the hook.

see also Adrian Vermeule’s Anti-Liberal Chic?


Vermule, now: A Series of Unfortunate Events - "Somehow, a global search-and-replace occurred, and the phrase “Equality and Freedom” was everywhere replaced with “Common Good.” That change inadvertently transformed the piece from a banal effort, safely mainstream within the legal academy, into a menacing harbinger of fascism."

more Vermule:a review of Deneen's Why Liberalism Failed, which closes: "Instead it is a matter of finding a strategic position from which to sear the liberal faith with hot irons, to defeat and capture the hearts and minds of liberal agents, to take over the institutions of the old order that liberalism has itself prepared and to turn them to the promotion of human dignity and the common good. In my view, only in this way will liberalism well and truly fall victim to its own success."

posted by the man of twists and turns (14 comments total)

I rounded up a few tweets:
Scathing Swiftian takedown of the cynical totalitarianism at the heart of so-called principled conservatism, a real masterful parody of the pomposity and viciousness of right-wing legal culture

this article is an outright statement by a conservative law professor that originalism was just a rhetorical strategy which, now that conservatives hold power in the courts, can be abandoned and replaced with straightforward reactionary politics

It's really interesting that The Atlantic fired Kevin Williamson for tweets but is okay with Adrian Vermeule, who has an... interesting Twitter record.

I have my objections to integralism as presented here. But it's weird that an argument that is banal when coming from the left - government is what we do together, conservatives undermined confidence in government - is seen as pure fascism when rephrased in a right wing key.

A few thoughts in response to the Vermeule piece....
Usually, when the Reocons talk about liberalism being dead, promoting "illiberal legalism," etc, they are making an extremely savvy and effective rhetorical choice. It allows them to tap into all the anti-Democratic, anti-liberal partisanship of the right, while masking...he fact that they are at the same time attacking the liberal democratic underpinnings of the American constitutional order (including "originalism"). In other words, if you're not paying attention, Vermeule sounds like just another conservative who can't stand liberals...but he's actually operating against the whole idea of participatory liberal democracy. He gets to amp up the base and at the same time veil-over the threat he poses to the constitutional order that they too (presumably? still? maybe?) hold dear.

Re-reading Vermule and it’s striking just how completely unprepared liberals are for this. ...
Carl Schmitt or Adrian Vermule -- you be the judge....
I realize Vermule has made a career saying this, but it's genuinely alarming that his argument is that originalism has served its purpose, legal conservatism is hegemonic, and now the goal should be to actively reorder society around illiberalism.

I think Vermule's piece is flaming hot garbage, but I've never understood this lazy defense of potential progressive authoritarianism by citing the utopian vision of progressivism. The entire point is that authoritarianism never achieves utopianism. The vision becomes empty words

Me: [opening door a crack] is that the civic cooperation I ordered
UPS guy: [looks at clipboard] naw this is fascism
Me: send it back
UPS: but shipping is free! And look how nice it’s dressed!
Me: I don’t care now fucking nicely it’s dressed-send it back

And what do we get for throwing out the Constitution? We get to be ruled by Adrian Vermeule, who will look on benignly as the “law teaches, habituates, and re-forms” us.

People on this site spend far too much time talking about the Agambens and Vermeules of the world. The world is burning. About time we got our priorities straight.

I didn't want to editorialize in the post, but Vermule's writings to me sum up as "Haha only kididng, or was I? .... I was! ... Unless...."
posted by the man of twists and turns at 10:13 AM on April 7, 2020 [3 favorites]

With individual conservatives the question is always grifter or rube- is this particular piece written by somebody who understands the dark heart of conservatism, loves it, and is upset to see its protective marketing shell torn off, or a true believer who can't see the marketing for what it is and is upset that the hideous face of conservative thought is a slander against the mask they mistook for the real thing?
posted by Pope Guilty at 10:25 AM on April 7, 2020 [12 favorites]

It's absolutely wild how much of an unabashed Francoist you can be in the US and have it go almost totally unremarked on (until you write a truly deranged oped, I guess) because it's not a part of history that gets covered in the schools or discussed often in the media.
posted by Copronymus at 10:40 AM on April 7, 2020 [11 favorites]

That said, I've been banned on twitter from interacting with Vermuele

"I ask you to judge me by the enemies I have made" - Franklin D. Roosevelt
posted by lalochezia at 11:20 AM on April 7, 2020 [11 favorites]

Catholic ultramontanism or Integralism or whatever has limited history in the U.S. except when you hear about Brownback or Santorum being Opus Dei members, or conservative Catholic Supreme Court justices like Scalia, Thomas, or Alito. Traditionally, the U.S. has seen more Protestant, Evangelical nondenominational far-right authoritarian movements, as Catholics have only really seen considerable political power in the 20th century. As a tweet reply to one of the links above pointed out, "Not sure how this is viable in a religiously pluralistic country where Catholics are a minority faith."

These guys have scary ideologies and their growing influence is concerning, but they're essentially LARPers, as their whole intellectual basis is alien to the majority. I think, as with Rushdoony and the Dominionists, these people make good public villains but have limited power. What's less scary is the particulars of their political fantasies, and more in how some of their ideas or suggestions get incorporated by the mainstream right-wing. However, I don't see theorists like Vermule actually gaining the ear of a president in the way that say, John Yoo did.

It's a shame that American Catholic intellectuals never seem to be interested in inventing an American tradition of Christian democracy.
posted by Apocryphon at 11:34 AM on April 7, 2020 [2 favorites]

common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality

Indeed, if there's no other lesson that we should take away from the past three and a half years, it's that concentrating power in a single person elected by a system rigged to favor reactionary zealots in lightly populated states is the way to go and will lead to highly moral actions.
posted by Candleman at 11:48 AM on April 7, 2020 [8 favorites]

It'll take forever to go through all of this, but at least throwing out the bullshit idea of constitutional originalism would be a good thing.
posted by Saxon Kane at 11:57 AM on April 7, 2020 [3 favorites]

The problem with a "common good" standard is that anything is constitutional as long as you can make an argument that whatever batshit thing you're proposing is in the "common good" and can make a majority of the Supreme Court agree with you.

Also, I'm not a lawyer, but wouldn't such a standard basically wipe out the entirety of stare decisis?
posted by Automocar at 12:47 PM on April 7, 2020 [1 favorite]

Vermuele is obviously a true believer, very smart, and also one of the few intellectually honest conservative legal scholars out there.

Correct me if I'm wrong, but he was an "ordinary" conservative legal thinker until getting into this stuff a few years back, no? In case anybody is wondering how he ended up at Harvard.
posted by atoxyl at 12:49 PM on April 7, 2020

It's been said that the German politics that led to WWII grew out of the economic hardships that preceded it.
posted by amtho at 1:32 PM on April 7, 2020 [1 favorite]

I'm just so excited to go out and vote publicly and expose myself just so I can get this "originalist" piece of shit "Justice" off our Republican crony Supreme Court.

Everything the WI legislature has done in the name of fucking with elections to stop us - to the point of endangering countless lives is so infuriating. I had a mail in ballot but fucked it up so now I have to go in person. Well I have made a decision about what I will do if I get it, and I can't say it in a place like this, but let's just say... Karma would be a straight up asshole.

Fuck Originalism. And fuck those who slavishly devote their lives to this form of Jurisprudence. Metaphorically salafist assholes.
posted by symbioid at 1:48 PM on April 7, 2020 [6 favorites]

but at least throwing out the bullshit idea of constitutional originalism would be a good thing.

I get the feeling that "going beyond originalism" means doubling down for more but different sounding stuff. Originalism reflected a fundamentalist basis for theocracy, just like their scriptural literalism, but at its core it really just wants to dictate reality from the top (especially since Trump proved that enough voters are short-sighted idiots and the entire government is up for grabs if one pushes enough old-timey buttons).
posted by Brian B. at 1:56 PM on April 7, 2020 [2 favorites]

I read US Constitution should be re-understood to focus on on the "common good" and I was smiling and nodding and thinking “Yes! Let’s talk more about the ‘promote the general welfare’ part! That would be a great thing to come out of this health crisis!”

Then I read the rest of the post. Jeez, way to pull the rug there, guy.
posted by nickmark at 2:44 PM on April 7, 2020 [3 favorites]

I meant "ordinary" in the sense that he wasn't always a full-on crank, not in the sense that he was an unexceptional scholar - I wouldn't really know on that point.
posted by atoxyl at 10:50 PM on April 7, 2020