What legal changes would just rulers and judges make? “The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism.” To put it differently: Kiss goodbye to your same-sex marriage, your contraceptives, your reproductive choice, and, for good measure, your right to protest against losing them.
That’s just the beginning. But sooner or later, you will thank the wise leader.
Many things could be said about the above vision. To address the easiest first, Vermeule is not admitting to having been an insincere originalist. He never was an originalist. He is an authentic Christian nationalist to whom the Constitution is only an obstacle; to cite just one example, see an argument he recently made on a Christian legal-theory website that immigration rules should be changed to provide “lexical priority [in visas] to confirmed Catholics, all of whom will jump immediately to the head of the queue.”
Puckishness takes one only so far. This man’s argument really is for authoritarian extremism.
Next, Vermeule’s philosophy (and to his credit, he essentially admits this) has absolutely nothing to do with the actual United States Constitution, and in many ways flatly contradicts it. A government that tends its people like sheep, remaking their desires and beliefs, has no basis in the Constitution itself. The structure of the Constitution embodies a distrust of “strong rule” so clear that no one with eyes could miss it; I can find no commitment there to “a powerful presidency ruling over a powerful bureaucracy.”
In fact, the Constitution as such is not a binding text to Vermeule. What common-good judges must do, he says, is “read into the majestic generalities and ambiguities of the written Constitution” (italics mine) the principles he favors. “Reading into” is a technique of scriptural interpretation. It is called “eisegesis,” which the Oxford English Dictionary explains is “the interpretation of a word or passage (of the Scriptures) by reading into it one’s own ideas.”
We’ve all met eisegesis in daily life—think of your freshman roommate who thought that Pink Floyd’s “Dark Side of the Moon” is actually about The Wizard of Oz. As a scholarly technique, however, eisegesis is, to say the least, disfavored; as a way of thinking, it is dangerous—to use a phrase from King Lear, “that way madness lies.” Much more honest would be for Vermeule to say that the old Constitution has failed and conservatives in robes should storm the Winter Palace, tear up the old rag, and substitute the Republic of Gilead.
This utopia where grateful “subjects” (formerly called “citizens”) kiss the rod that saves them from their foolish heart’s desires is eerily familiar. Consider this credo:
The national community is founded on man as bearer of eternal values, and on the family as the basis of social life; but individual and collective interests will always be subordinated to the common welfare of the nation, formed of past, present and future generations … The natural entities of social life—Family, Municipality and Guild—are the basic structures of the national community. Such institutions and corporations of other kinds as meet general social needs shall be supported so that they may share efficaciously in perfecting the aims of the national community.
The source is The Law of the Principles of the National Movement, promulgated by the Spanish government in 1958 as a summary of Falangism, the philosophy of General Francisco Franco’s regime. Falangists, too, spoke warmly of God, of the favored role of the Holy Catholic and Apostolic Church, of the sacred family, and of the “common welfare”; but they ruled by censorship, secret police, the garrotte, and the firing squad. We need not list the other 20th-century authoritarian regimes that embraced eternal values but ruled by terror.
In fact, my deepest objection to Vermeule’s anti-constitutional philosophy is not that it is harmful and antihuman, but simply that, in the end, it is so banal. This movie has had more remakes than A Star Is Born. The opening scenes are always set amid the delicate towers of Saint Augustine’s imaginary City of God; but the last scene takes place, every time, in dank basements soaked with very real blood.