Common-Good Constitutionalism Is an Idea as Dangerous as They Come

It’s an argument for authoritarian extremism.

The Atlantic

We are living in post-legal times. The new conservative majority on the Supreme Court, and the carefully screened cadre of far-right judges in lower courts, are poking hungrily not only at venerable precedents but at the notion of precedent itself.

Figures heretofore marginal are maneuvering for advantage—think of the obscure White House aide Stephen Miller rewriting immigration law from the White House, or the haberdashery theorist Michael Anton proposing, in The Washington Post, that President Trump gut the Fourteenth Amendment by executive decree.

Adrian Vermeule, the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School, is hardly a marginal figure. At just over 50, he has made his mark as a brilliant but distinctly conservative theorist of administrative and constitutional law. Four years ago, he was received into the Catholic faith, and has adopted a radically conservative posture toward law and society. His chosen philosophy is called “integralism,” which calls for subordinating the state to the principles of the Catholic Church.

Tuesday on this site, in an essay titled “Beyond Originalism,” he called on conservative judges and lawyers to exploit their new ascendancy by remaking the entire country. No longer should they be content to parry the claims of liberal legalists; instead, they must, to paraphrase Vladimir Lenin, proceed to construct the integralist order.

The essay appeared on the eve of April 1, and Vermeule might be having us on. He sometimes aspires to puckishness: Witness a late-February tweet that displayed an advertisement for a conference of anti-Trump conservatives with the comment, “The very first group for the camps.” The sportive conceit here is that these “RINO” conservatives (Republican in Name Only), just like hard-core Trumpists, would one day be shipped off to detention by rampaging liberal commissars. Similarly, his positions in “Beyond Originalism” are sufficiently outrageous that charitably imagining the essay as self-parody is easy.

By contrast, I suspect that Vermeule, with admirable honesty, really is explaining the beliefs that he and others on the right have quietly held for many years. His view of the presidency, for example, echoes some parts of Attorney General Bill Barr’s authoritarian manifesto, delivered in November to an adoring federalist gathering. Let’s examine what Vermeule proposes; it may be our future.

I will try to give a fair summary of his complex argument:

Originalism, Vermeule writes, has since the 1980s, come to dominate conservative legal discourse. The idea behind it was that judges can, by research, determine the “original intent,” of a constitutional provision, and then apply that and only that to present-day cases. The motive behind it, as Vermeule notes, was to fashion an argument that could oppose and eventually reverse Warren and Burger Court precedents that expanded sexual freedoms and limited the power of majorities to enforce morals and hierarchies.

In 2020, the Trump administration has brought the Supreme Court and lower courts under firm conservative control. As a result, originalism commands widespread allegiance among bench and bar; even many liberals have learned to play the game.

Now Vermeule, like Joe Pesci in My Cousin Vinny, asks scornfully: You were serious about that? He wants originalism out; what should replace it is “common-good constitutionalism … 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.”

This philosophy is “not enslaved to the original meaning of the Constitution” (unlike “originalism”) but is also “liberated from the left-liberals’ overarching sacramental narrative, the relentless expansion of individualistic autonomy.”

The state will coerce individuals, to be sure, but for their own good: “Subjects will come to thank the ruler whose legal strictures … encourage subjects to form more authentic desires.” The ruler will achieve this through “a powerful presidency ruling over a powerful bureaucracy.”

In the new commonwealth, judges and other officials will enforce:

respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality.”

Reader, you, like me, may wonder how this relates to the actual, you know, Constitution. We can read that document’s “sweeping generalities and famous ambiguities” as embodying natural law and morality. But, really, we need not fuss with textual trivialities all that much. “Thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake.”

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.