The Atlantic, a magazine for which I once worked, recently teamed up with the National Constitution Center for a series entitled “The Battle for the Constitution.” The project draws upon a wide range of American legal scholars to discuss the Constitution’s fate in the Trump era. Past contributors range from Michael Gerhardt, Sanford Levinson, and Leah Litman to Richard Epstein, the New York University law professor and erstwhile coronavirus expert who was vaporized from orbit by The New Yorker’s Isaac Chotiner earlier this week.
The most eyebrow-raising essay thus far comes from Adrian Vermeule, a chaired professor at Harvard Law School who specializes in administrative law. In a manifesto titled “Common-Good Constitutionalism” published on Tuesday, he called upon legal conservatives to abandon what he describes as the “defensive crouch” of originalism, the movement’s doctrinal lodestar for the last 40 years, now that they have captured the Supreme Court for at least a generation. In its place, Vermeule calls for an unabashedly authoritarian interpretation of the Constitution.
“Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being,” he wrote. “Common-good constitutionalism,” he explains, “will favor a powerful presidency ruling over a powerful bureaucracy,” which will be empowered to impose a particular social and moral code upon Americans. Troublesome concepts like personal liberty and individual rights are brushed aside.
On social media, Vermeule’s autocratic vision for American life received a negative reception, to say the least. Legal academics across the political spectrum veered between mockery and horror. Some observers called him a fascist. Others sharply criticized The Atlantic for publishing his arguments in the first place. I, for one, consider it a public service. Though right-wing illiberalism is in vogue these days, its adherents tend to dance around exactly what they wish to impose upon the rest of us. Vermeule’s honesty is as refreshing as it is disturbing.
Though Vermeule himself is not an originalist, he argues that this strain of legal scholarship effectively existed only to give the conservative legal movement the intellectual cachet to join mainstream American legal thinking. “This approach served legal conservatives well in the hostile environment in which originalism was first developed, and for some time afterward,” Vermeule wrote. “But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation.”
What, then, should replace originalism? Vermeule initially offers a vision of American constitutional law “based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” All of this can be achieved without amending a word of the document, as well. “The sweeping generalities and famous ambiguities of our Constitution, an old and in places obscure document, afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, hierarchy, solidarity, and subsidiarity,” he explains.
Later descriptions take on a more menacing air. At one point, he argues that the state’s power to compel vaccinations could be extended to combat “pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private ‘rights.’” It’s never reassuring to see the word rights set off in scare quotes, to say the least. “Thus the state will enjoy authority to curb the social and economic pretensions of the urban-gentry liberals who so often place their own satisfactions (financial and sexual) and the good of their class or social milieu above the common good,” Vermeule concludes.
It’s tempting, perhaps, for those on the left to read Vermeule as an expression of the secret desire lurking within every legal conservative’s heart. He is not, however, an originalist or even a standard American conservative. He is a proponent of integralism, an arcane strain of Catholic political thought that draws upon nineteenth-century critiques of modernism and revolution. Integralists reject liberalism as a political philosophy, preferring hierarchy over egalitarianism and autocracy to individual rights. They eschew the modern secular nation-state in favor of something more closely resembling the confessional states of early modern Europe, or perhaps the Habsburg empires.
Accordingly, when Vermeule writes about using the Constitution to promote the “common good,” he means integrating Catholic social and moral doctrine—or at least his interpretation of it—into our secular constitutional law. What sets Vermeule apart from not only most Americans, but even most American Catholics, is his eagerness to impose these views upon others by force. “Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them,” he explains.
Vermeule is something of a newcomer to all of this. By his own account, he drifted in and out of the Episcopalian tradition in which he was raised before converting to Catholicism in 2016. “I put little stock or hope or faith in law,” he said in an interview about his religious views at the time. “It is a tool that may be put to good uses or bad. In the long run it will be no better than the polity and culture in which it is embedded. If that culture sours and curdles, so will the law; indeed that process is well underway and its tempo is accelerating. Our hope lies elsewhere.” Other post-liberals on the right, such as Sohrab Ahmari, have experienced similarly galvanizing changes after conversion.
By the mid-twentieth century, the Catholic Church largely reconciled itself to liberal democracy, especially when faced with the Communist alternative to the East. For Vermeule, however, it is always 1793, and France’s ultra-revolutionaries are always at the gates. He often describes liberalism as a religion unto itself, with “its own cruel sacraments—especially the shaming and, where possible, legal punishment of the intolerant or illiberal—and its own liturgy, the Festival of Reason, the ever-repeated overcoming of the darkness of reaction.” The unsubtle implication is that liberalism and Christianity, or at least the Catholic form of it, are bitter and irreconcilable foes.
This is a familiar shtick for Vermeule: to argue that liberals are what they claim to oppose. In his eyes, liberalism’s boundaries on acceptable political views are no different from the authoritarianism that its adherents claim to oppose. Liberals’ unwillingness to tolerate what they perceive as intolerance is proof that their claims of tolerance are a sham. “Liberalism’s dilemma is that its anti-authoritarian ethos of belief, its compulsion to celebrate the overcoming of political rule, is ultimately inconsistent with its own claim to rule,” he told an audience at Princeton University in 2019.* It is a flawed conception of liberalism that does not survive a brush with Karl Popper.
To overthrow this apparently tyrannical liberal order, Vermeule has previously called for what he described as “integralism from within.” He imagines a small coterie of integralists infiltrating elite institutions and the machinery of the liberal state so they can subtly co-opt them in favor of their ultimate goals. “The vast bureaucracy created by liberalism in pursuit of a mirage of depoliticized governance may, by the invisible hand of Providence, be turned to new ends, becoming the great instrument with which to restore a substantive politics of the good,” he wrote in a 2018 article for American Affairs.
Vermeule compared these agents to Christian saints and martyrs of a distant age: Joseph and Mordecai, Esther and Daniel. For those who don’t share his spiritual or philosophical outlook, it sounds more like The Winter Soldier, the film in which Captain America discovers that agents from HYDRA, a quintessentially illiberal organization, hold high-ranking positions throughout S.H.I.E.L.D. and the U.S. national security establishment. After decades in hiding as a deep state of sorts, they unmask themselves just before the moment of their ultimate triumph.
This strategy isn’t surprising from a man of Vermeule’s education and expertise. A legal scholar, his bread and butter is administrative law and executive power. His writings show a particular interest in Carl Schmitt, a twentieth-century German legal philosopher who criticized parliamentary democracy in the Weimar Republic before becoming a preeminent Nazi jurist, and Joseph de Maistre, an eighteenth-century Italian nobleman who argued forcefully against the Enlightenment and in favor of the divine right of kings. Echoes of their thinking can be seen in his hostility toward the Supreme Court’s current approach to free speech and individual autonomy.
“The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may ‘define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’ should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after,” he wrote in The Atlantic. “So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that ‘one man’s vulgarity is another’s lyric,’ and so on—fall under the ax.” In trying to sketch out a new constitutional order for America, Vermeule accidentally invented Saudi Arabia.
On his now-deleted Twitter account, which I followed for some months, he presented a needling, impish persona with an exceedingly dry sense of humor that occasionally bled over into his other writings. In a July 2019 blog post, he wrote that American immigration policy should “give lexical priority to confirmed Catholics,” which would result in fewer immigrants from Europe and Canada (except, he notes, for the Quebecois) in favor of “actual Catholics” from Africa, Asia, and Latin America, where the church’s membership is now strongest. “Yes, some will convert in order to gain admission; this is a feature, not a bug,” he explains.
Those measures and an open southern border, Vermeule wrote, would lead the United States “towards the eventual formation of the Empire of Our Lady of Guadalupe, and ultimately the world government required by natural law.” Whether his proposal is genuine or trollish is for the reader to decide. “I venture to say that any opposition to this proposal almost necessarily defends some alternative principle of immigration priority that allocates fewer spots to non-whites and to the poor, and is thus a troubling indicator of racism and classism infesting whoever voices that opposition,” he adds.
Will Vermeule’s approach to constitutional law, let alone his integralism, gain currency on the American right? His epistle to the American legal community drew cheers from Ahmari, who already shares his skepticism of the prevailing liberal order. But it did not seem to persuade elsewhere. “We already have a common-good Constitution; it’s called the Constitution,” National Review editor Rich Lowry opined on Twitter. “All I’ll say is that this was well-timed for a week when the leading libertarian originalist embarrassed himself playing armchair epidemiologist,” The New York Times’ Ross Douthat added. It’s doubtful that anyone to the left of them had a change of heart. But dissenting voices do not deter Vermeule. By his own admission, he will impose himself upon them all the same.
* This article originally stated that Vermeule’s 2019 lecture took place at the University of Notre Dame.