Vermeule’s Atlantic essay defending “common good constitutionalism” (CGC) excited a lot of controversy, but, on one level, it is hard to see why. Vermeule argues that “conservatives” ought to discard originalism for a kind of Dworkinian fit-and-justification style of constitutional interpretation that safeguards a comprehensive conception of the common good defended by a strong executive aided by a robust bureaucracy. He calls this approach “illiberal legalism” (more on that formulation below).
To the uninitiated, the essay looks like the usual Vermeulean performance in which Vermeule spots paradoxes in platitudes and then re-states those platitudes in crisply inflammatory prose exquisitely highlighting the paradox. Consider, for example Vermeule’s essay on the “optimal abuse of government power” the title of which, by pairing “abuse” with “optimal,” highlights the paradox in the truism that it’s excessively costly to eliminate all abuse of governmental power. This schtick is so well-known that it has earned a much-coveted April Fool’s satire from Larry Solum. The diction of the Atlantic Essay follows this script, using phrases calculated to shock liberal pieties but, at least on the surface, urging nothing more than garden-variety paternalism of the Devlin/James Fitzjames Stephen variety.
Take his paragraph where he says that CGC has no fear of “domination and hierarchy” whereby “rulers” use laws to “re-form” their “subjects’” “perceptions.” Pretty creepy, huh? But use Google Translate to change the language from Vermeulese to Platitude, and you get the following: Sometimes citizens — say, drug addicts, alcoholics, dummies who ride motorcycles without a helmet — do things that sensible people know are self-destructive. The government should prevent them from doing so, and, in time, the example of such laws and obedience thereto will inculcate more sensible behavior. You do not have to agree with this view of the State to realize that it is familiar and not especially shocking.
Likewise, it is controversial in an academic sort of way for Vermeule to call for reading “substantive moral principles that conduce to the common good … into the majestic generalities and ambiguities of the written Constitution.” But such a position, read abstractly, is not really a big shock. Arguably, Ronald Dworkin took something like the same stance
Comments
Andrew Sepielli Notes that everyone, Vermeule and his critics alike, are skating over the question of wether or not Catholic integralism is, in fact, true. “Does [Vermeule] have some combination of empirical and moral arguments that Catholicism is the true religion of which I’m unaware?” Professor Sepielli asks.
In fairness to Vermeule, he never claims in his Atlantic essay that Catholic integralism will supply the definition of “common good” that will inform his reading of the Constitution. Indeed, he never really defines “the common good” at all, beyond suggesting that the common good could be defined by unspecified “conservative” values. He’s asking the “meta” question of whether or not the Constitution could be legitimately so construed, or whether something like Berlin’s Value Pluralism must be the touchstone for any theory of the Constitution not rooted in originalism. (Damon Linker has weighed in with a defense of a pluralistic theory of constitutional construction here: https://theweek.com/articles/907011/when-conservatives-interpret-constitution-like-progressives . I take Vermeule as simply challenging the idea that pluralistic theories of the morality underlying the “living constitution” are the only ones legitimately in play. And I agree with him that it is dogmatic to insist that the only justifiable theory of values that could underlie a constitution construed according to Dworkin’s “fit-and-justification” method is some sort of theory of values pluralism).
Posted by: Rick Hills | Apr 7, 2020 6:37:32 PM
It’s interesting. As a moral philosopher, I always find that these discussions about liberalism and illiberalism skate over the perfectly good first-order question of whether Vermule, in this case, is right or not about the moral position he’s endorsing. Does he have some combination of empirical and moral arguments that Catholicism is the true religion of which I’m unaware? If not, then he’s just another guy with an opinion.
Posted by: Andrew Sepielli | Apr 7, 2020 4:32:16 PM
“After all, I already disagree with the notion that human values are legitimized only by our consent to them.”
“Sometimes citizens — say, drug addicts, alcoholics, dummies who ride motorcycles without a helmet — do things that sensible people know are self-destructive.”
How’d the 18th Amendment work out?
Republicanism is flexible concerning truths, and strict as to form. Liberalism hides its Protestant authoritarianism behind pseudoscience. Foucault was right because Baudelaire was right. It’s not new.
Aristotle: “…the principle of an aristocracy is virtue, as wealth is of an oligarchy, and freedom of a democracy.” Montesquieu: …”the republican state, which has virtue for its principle.”
I’m with Montesquieu. Liberals are with Aristotle but defend freedom. Vermeule is with Aristotle and defends, not aristocracy now since that’s impossible, but oligarchy. That point makes no sense if you don’t know what decadence is. The converts Vermeule and Ahmari are more Catholic than the Pope. They’re pure kitsch. The moralists they defend are corrupt. The pederast from Opus Dei quotes St. Paul: “To the pure all things are pure”.
It would be nice if this country inculcated a sense of Republican virtue in its children, but it doesn’t. So here we’re left with technocrats debating fascists. You’re playing games with people’s lives and you pretend you’re not. You’re spend so much time in law schools you’ve forgotten what it means to be a lawyer.
“Doing these cases… I began to find myself in a dangerous situation as an advocate. I came to believe in the truth of what I was saying. I was no longer entirely what my professional duties demanded, the old taxi on the rank waiting for the client to open the door and give his instruction, prepared to drive off in any direction, with the disbelief suspended.” https://www.nytimes.com/2009/01/17/books/17mortimer.html
Judge Hercules is like Gielgud playing Hamlet and “trying to get it right”. Lawyers don’t read Rawls; they laugh at him. The stability Vermeule and Scalia et al crave is an illusion. Stop pretending you’re not playing games and you’ll learn take the games more seriously.
Posted by: Seth Edenbaum | Apr 6, 2020 7:45:40 PM
” The rate of change in the policy environment, especially in the economy, is so much greater than in the late 18th century that optimal institutional arrangements must allow for greater speed and flexibility of policy adjustment by officials. That, of course, is one of the main reasons we have such a large bureaucracy in the first place. “
This observation was made some years ago by my former teacher, political theorist William Scheuerman, an actual scholar of Schmitt (but not “Schmitten”). AV surely got it from Scheuerman’s work, which anyone interested in Schmitt in a serious, scholarly way would come across.
Posted by: Jason Yackee | Apr 6, 2020 7:08:42 PM
Remember when Vermeule and Posner defended torture? https://balkin.blogspot.com/2004/07/vermeule-and-posner-defend-torture.html
-Two very fine young scholars at the University of Chicago, Adrian Vermeule and Eric Posner (son of Judge Richard Posner), have defended the OLC torture memo’s legal analysis, and its restrictive view of what constitutes torture as “standard lawyerly fare, routine stuff.”-
I’ll say the same thing I said here 9 years ago. Why do so politely debate fascism?
https://prawfsblawg.blogs.com/prawfsblawg/2011/07/posner-and-vermeule-cynical-about-law-dewy-eyed-about-politics.html It’s been almost 20 years since Balkin advised me that honey is a better bait than vinegar. At this point, it’s becoming absurd
Posted by: Seth Edenbaum | Apr 6, 2020 4:51:27 PM
Thanks for the tip, Lucretian: Unfortunately, this piece is riddled with typos (see, e.g., “Jewish poles”), because I had no time to proof-read it. (I was trying to prepare a Monday morning class on Mottley’s well-pleaded complaint rule and getting stuck on whether and how Gully differs from American Well Works: I scribbled this out because Federal Courts was driving me nuts and I needed a break).
“Edgelords” writes:
“The politics of this style of ‘edgy’ flirtation with authoritarianism have been discussed ad nauseam since the 2016 election season. Dignifying it by trying to engage with it seriously is as counterproductive as trying to debate Pizzagate allegations. The best response to someone describing a project of building a Catholic theocracy in the US is to roll one’s eyes at this juvenile attempt at being shocking. That (and pity for the author) is all it deserves.”
I (unsurprisingly) strongly disagree, for three reasons:
A). Unlike anonymous trolls, Vermeule has bravely put his name on what he has written. If one is willing to stake one’s reputation, then one deserves (more of) a response. B) Unlike Pizzagate allegations that involve obviously groundless factual claims assertable only by someone who is either emotionally / cognitively disordered or simply writing in bad faith, Vermeule’s theory of integralism as a source of “common good” is not only well-written and internally coherent but also logically defensible and sincerely held. True, it is inconsistent with many people’s strongly held values, but that is a far cry from the stuff uttered by, say, Alex Jones. C). Vermeule has reasons to play his cards close to his chest if he believes that he will be subject to furious invective. If he were simply engaging in tiresome irony with serious topics, then I might roll my eyes and move on. He apparently believes, however, that he lives in a time in which the suggestion of a position at odds with liberal consensus could inspire intense hostility from people unwilling to give him any sort of hearing. When breaching these sorts of taboos, it is natural to be cagey. Leo Strauss’ work on writing during times of tyranny comes to mind as a justification for “esoteric” caginess. Vermeule may believe that he lives in a time of tyranny in which his ideas will receive such a hostile reception as to endanger his livelihood, reputation, etc. So he is entitled to write in a way that is accessible only to those who are willing to engage with him in good faith.
What if we *are* willing to engage his admittedly radical departure from consensus norms in good faith? Is he expressing contempt for us by adhering to an “ironically guarded” style? Maybe not. Maybe he’s being compassionate, at least by his own lights. In the immortal words of Jack Nicholson’s character from “A Few Good Men,” he may believe that modern liberals are so blinded by the hegemony of liberal value neutrality and so fearful of taboo topics that they “can’t handle the truth” as he sees it.
In short, Vermeule is entitled to be discrete, but I think it is worthwhile to engage with him in good faith to see what he thinks and why.
Posted by: Rick Hills | Apr 6, 2020 11:21:17 AM
The “the coy connotations of the diction” constitute trolling, no less than that of the 4chan/8chan crowd. The same principle applies to Vermeule that applies to internet “edgelords” generally — don’t feed the trolls. The politics of this style of “edgy” flirtation with authoritarianism have been discussed ad nauseam since the 2016 election season. Dignifying it by trying to engage with it seriously is as counterproductive as trying to debate Pizzagate allegations. The best response to someone describing a project of building a Catholic theocracy in the US is to roll one’s eyes at this juvenile attempt at being shocking. That (and pity for the author) is all it deserves.
Posted by: Edgelords of HLS | Apr 6, 2020 10:42:12 AM
Given that Vermeule defended the Mortara kidnapping on Twitter, one suspects that what would happen to Jews would in fact be quite bad (at least from the perspective of Jews).
Posted by: JHW | Apr 6, 2020 10:40:13 AM
Wonderful post, thank you. I suspect even if you do ask, though, he won’t tell.
One edit– I think there’s a missing word here:
“Does he support the Polish Law & Justice Party’s about Poles’ lynching massive numbers of Jews following World War II?”
Posted by: Lucretian | Apr 6, 2020 10:14:15 AM
Interesting and timely piece. Vermeule has in fact addressed the “Jewish question” in his writings before (see here https://thejosias.com/2018/07/19/according-to-truth/):
“The most interesting conversation I’ve had lately in an academic setting was with a colleague—a man of the left who thinks of himself as ‘secular,’ but who is in fact animated by a vibrant faith in the progress of history—who asked me to lunch and pressed the question ‘in a fully Catholic polity, the sort you would like to bring about, what would happen to me, a Jew’? (Nothing bad, I assured him). This was no second-order discussion of ‘political liberty’ or ‘rights’ or ‘overlapping consensus.’ This was a passionate concrete question about the fate of an individual, a people, and the shape that a polity might take, all inseparably linked. It was, at last, after all the academic workshops on ‘procedural justice’ and ‘tolerance,’ a genuinely political conversation.”
Of course, his “nothing bad” leaves open the question of who will make that assessment, Vermeule or his colleague. I suspect Vermeule.
Posted by: DB | Apr 5, 2020 10:24:58 PM
Interesting, indeed creates the impression of excessive abstractions, yet, one issue raised by him, merits a closer observation, and raises indeed, a practical and actual or modern issue:
And it is the connection, between, changes in policy, in light of very intensive social changes and alike. I quote:
” The rate of change in the policy environment, especially in the economy, is so much greater than in the late 18th century that optimal institutional arrangements must allow for greater speed and flexibility of policy adjustment by officials. That, of course, is one of the main reasons we have such a large bureaucracy in the first place. ”
And finally:
The price of speed and flexibility of adjustment is administrative discretion, and administrative discretion creates increased scope for the abuse of discretion – despite the attempt to check such abuses with review under the Administrative Procedure Act for abuse of discretion, itself a costly and imperfect oversight mechanism.
End of quotation:
Yet, there are solutions for it. In the federal sphere, courts or legislator, must modify the meaning of ” controversy ” and develop a doctrine of ” Public petitioner “. So, one party, wouldn’t need to show and prove that he bears concrete and particularized injury in order to have standing. But, let NGOs for example, petition in the name of the public, or, in the name of public trust, or rule of law, and challenge intensively, the government and its actions and policies. They can fund it, they are well designed for it.So, the constitution in this regard, wouldn’t have to be modified, maximum,the administrative laws.
Thanks
Posted by: El roam | Apr 5, 2020 8:56:25 PM
My biggest problem with his essay, by quite a long shot, is that it tarnishes his fine and almost entirely correct work on admin, and makes it harder to cite in some quarters. I don’t see much danger of its actually influencing anyone in the direction it intends (whatever direction that is).
Posted by: Asher Steinberg | Apr 5, 2020 8:42:26 PM