Vermeule’s Society and Its Enemies
Aaron J. Walayat
When Harvard law professor Adrian Vermeule published his article “Beyond Originalism” in The Atlantic last year, his critics saw it as a moment of revelation. The legal right, after decades of hiding behind the mask of proceduralism, had finally reared its true, authoritarian face. Criticism of the article, however, interprets Vermeule as calling for judges to engage in judicial activism in order to achieve the ends of a conservative common good. This is a misunderstanding of Vermeule’s project, which does not solely rely on the judicial branch of government, but is a holistic project based on a larger conception on the ends of the nation-state as a political community. For Vermeule, simple proceduralism would not realize such goals.
The “proceduralism” criticized by Vermeule refers to originalism, the theory of constitutional and statutory interpretation that regards the text as fixed to the original public meaning of the words at the time of writing. Conservative and libertarian lawyers have typically found common ground in originalism to the extent that it serves as the rallying cry for the conservative legal movement. How could it not? Champions of originalism include the likes of such conservative legal luminaries as Supreme Court Justices Clarence Thomas and the late Antonin Scalia.
During the Trump administration, it was nearly a prerequisite for judicial nominees to espouse originalism as their judicial philosophy. Under President Trump’s administration, three Supreme Court justices, fifty-four Court of Appeals judges, 174 federal district judges, and thirty specialty court judges were nominated and confirmed. Given the sheer number of nominees confirmed under the Trump administration, the conservative legal movement appeared to have scored its strongest victory. In the midst of this victory, then, it was curious that Vermeule would suddenly assert that originalism had “outlived its utility,” and that the legal right ought to instead pursue a “robust, substantively conservative approach to constitutional law and interpretation” which he dubbed “common-good constitutionalism.”
Vermeule’s common-good constitutionalism offered a theory of constitutional interpretation 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.”
Naturally, Vermeule’s theory attracted criticism from all sides. Joe Patrice, writing for the popular legal blog Above the Law, published an article entitled “Hey, Can Someone At Harvard Law School Check In On Adrian Vermeule?” Despite the derision and click-bait in his title, Patrice, himself critical of originalism as a theory and of the legal right generally, wrote of Vermeule’s critique with a hint of sympathetic schadenfreude, expressing some amusement at a conservative legal scholar being open to expanded government projects directed to social spending in the name of the common good.
More interestingly, Vermeule has received strong criticism from within the conservative legal movement. Georgetown law professor Randy Barnett published a response, also in The Atlantic, challenging Vermeule’s criticism of originalism and proffering that Vermeule was “never an originalist” but rather a “Catholic integralist.” Depending on who you are, the charge is either an accusation, adulation, or a mere identification.
Accusations of Lawlessness
Vermeule’s common-good constitutionalism has been received quite coldly, and a review of the “About Us” page of Vermeule’s blog Ius & Iustitium makes it easy to see why. Where the Latin word iustitium means the “suspension of normal juridical proceedings,” Vermeule extends the term to “refer to the kind of action that is necessary when the juridical establishment has become corrupt, giving primacy to subjective rather than objective right, thus severing the juridical order from the common good.” Those who decide to stop reading after that sentence, not taking it in the context of the paragraph (and without knowledge of Cicero), will likely charge Vermeule with lawlessness and authoritarianism.
Apprehension surrounding Vermeule’s theory likely stems from its perceived lawlessness. The note that iustitium requires a “kind of action” necessary to transcend a corrupt juridical order to bring it back to the common good reeks of judicial activism of the highest degree. But this gloss of iustitium is not without nuance: the citation to Cicero implies the limited circumstances when such action would be necessary. Further, the notion of iustitium exists in some incarnation in certain legal systems today. The much celebrated 1980 decision by the Supreme Court of India, Minerva Mills v. Union of India (interpreting the “basic structure doctrine” of the Indian Constitution), invalidated state-of-emergency era constitutional amendments that had granted extraordinary powers to India’s Parliament at the expense of individual rights. A supreme court applying mere originalism would have been unlikely to reach such a result.
To some degree, Vermeule’s common-good constitutionalism can also be described as a conservative form of Ronald Dworkin’s legal theory. Dworkin defended an adjudicative principle called “law as integrity,” which instructs judges to identify legal rights and duties so far as possible, working from the assumption that law was created by a single authority — the community personified — and that the law expresses a coherent conception of justice and fairness.1 Ronald Dworkin, Law’s Empire (1986). Thus, judges should decide what the law is by interpreting the practice of other judges deciding what the law is.
The difference between Dworkin and Vermeule, however, appears to be that Dworkin sees these judges as defending a morally transforming, but still continuous, society based on a liberal conception of justice, a la John Rawls. Vermeule, however, does not see society as so nebulous. Rather, the common good is knowable through reason. Judges, interpreting law through the conception of the common good rather than the language of rights and duties, are bound to defend the common good rather than write new rights and duties. Nevertheless, while Dworkin and Vermeule differ in their goals and motivations, they share an identification of means: that judges, interpreting the law, should be directed over a higher conception of what the legal system should be, rather than by deference to strict rules and fixed meanings.
If Not Originalism, Then What?
But what led to Vermeule’s break from originalism? One possibility is that Vermeule was one of the many conservative legal scholars who gnashed their teeth when Justice Neil Gorsuch, the “mighty Casey” of the legal right, proverbially “struck out” in his majority decision in Bostock v. Clayton County. In that decision, Justice Gorsuch, writing for a majority made up of the Court’s liberals, interpreted the term “sex” in the 1964 Civil Rights Act as encompassing sexual orientation, rather than constraining the term to refer to mere biological sex. The decision was interpreted by some commentators to be the natural product of Gorsuch’s originalist and textualist judicial theory, though many, including the dissenting Justices, disagreed.
It’s beyond the point whether it was coincidence that the court’s decision overlapped with the publication of Vermeule’s article, or if the court’s decision in Bostock was, for Vermeule, the final push that made him leave originalism behind. The critique of originalism, both from the right and the left, is not new. Critics have argued that originalism could simply be selectively used to justify any judge’s political ends.
This political critique may be most clearly seen in originalism’s greatest decision: District of Columbia v. Heller. The 2008 case was a critical Second Amendment case regarding the right to keep and bear arms. In that decision, Justice Scalia, writing for the majority, defended the private right to keep and bear arms through his originalist reasoning. Nevertheless, in a dissenting opinion, Justice John Paul Stevens also presented an argument influenced by originalist interpretation, but coming to the opposite conclusion. Some regard Heller as the greatest originalist decision, as it forced both the majority and the dissent to apply originalist methods in reaching their decisions. However, the case also shows that originalism is not the exclusive possession of the legal right and could prove to simply be a fair-weather friend. If this were the case, then originalism was no longer useful for those seeking to do more than interpret laws. Dworkin, for example, critiqued originalism as unable to achieve the political ends of a nation’s changing political morality.2 Ronald Dworkin, Comment in Antonin Scalia, A Matter of Interpretation (2018 ). While their goals were different, I think Vermeule follows Dworkin’s critique of originalism. For Vermeule, the conservative legal movement could not rely on originalism to attain the ends of a political community.
Vermeule is, therefore, not arguing that the conservative legal movement “shed” its originalist face. Rather, as the title of his Atlantic article states, Vermuele is encouraging legal conservatives to look beyond originalism. To Vermeule, conservatives (and libertarians) have been too tied to the defense of a theory of interpretation. But originalism is not, nor was it ever meant to be, a theory about the purposes of the state generally. Vermeule argues that conservatives need to stand for something substantive: a philosophy about what the state is, why the state exists, and how that state might be achieved.
Naturally, this puts Vermeule in conflict with libertarians, whose view of the end of the state is often divorced from, if not in conflict with, the notion of the common good.
In Barnett’s libertarian/classical liberal response to Vermeule, he criticizes Vermeule’s theory as Catholic integralism — the view that church-state relations (to use modern, anachronistic language) cannot be separated, and that the church serves an integral role in the proper functioning of the state. Critics naturally interpret Vermeule’s integralism as religious authoritarianism. It is reminiscent of a line by Margaret Atwood, author of the popular novel, The Handmaid’s Tale, in which she declared that “the foundations of America are a 17th century Puritan theocracy. That has been an underlying foundation stone all the way along.” Whether or not Atwood’s diagnosis of America’s Puritan heritage is valid, Vermeule’s Catholic integralism has more to do with Aristotle than evangelical Christian fundamentalism.
Vermeule’s theory of the common good is not the establishment of the Kingdom of God on Earth, but the ordering of society in order to achieve the “good life.” In his Politics, Aristotle opens with the assertion that, first, “every polis (usually translated as “city”) is a species of association, and second, that all associations come into being for the sake of some good.” (1252.a.I). As all associations seek some good for which they are created, the polis, the “most sovereign and inclusive association,” also seeks a good — the “common good” and the “good life.” (1252.b.27). In this way, the common good’s moral structure is not dependent on membership in the church.
Barnett decries Vermeule as an integralist rather than a theocrat, and the divergence between the two professors is not based on religion, but on differing views of the ends of the state. Reviewing Aristotle, it is clear to see the fault lines between the two professors, as Vermeule is much more likely than Barnett to accept Aristotle’s assertion that “the polis is prior in the order of nature to the family and the individual.” (1253.a.18).
To Barnett, Vermeule’s vision of the common good (and possibly Aristotle’s vision of the polis) is untenable in reality. The imperfectness of human beings and the diversity among people makes this sort of community unlikely in reality. In his response, Barnett poses three questions which he asserts common-good constitutionalism cannot answer:
- What qualifies state legislators to make spiritual choices that will be imposed on nonconsenting citizens? What will legislative debates about morality look like? Who will be called as witnesses in legislative hearings? The inevitable answer is that legislators will just vote their own morality and the legislative majority will prevail. In the legislature, might will make right. (The state-sanctioned segregation upheld in Plessy is a good example of this.)
- Assuming there is any judicial review left, what in judges’ training qualifies them to assess these competing moral claims on which legislation is to be solely based? Answer: Nothing.
- Above all, what happens to social peace as the government starts incarcerating the dissenting minority for failing to adhere to their moral duties? Religious war, anyone?
Barnett’s three questions essentially boil down to two arguments: (1) Public actors (both judges and legislators included) are simply not qualified to make the spiritual decisions of a society, and (2) that a political class that tries to make these choices will stir social conflict due to the dissenting minority not adhering to the duties set out for them. Barnett clearly writes from a libertarian perspective, expressly fearing the dangers of a paternalistic state over a pluralistic society, made most clear of his fear that government will stoke social discord by incarcerating the dissenting minority, rather than placing the blame of social discord on the dissenters.
Qualifying for Lawlessness
Barnett’s first argument, that public actors are simply not qualified to make the spiritual and moral decision for the majority, is a strong one. No one can doubt that human beings are imperfect. We associate this sentiment with James Madison’s famous adage that “[i]f men were angels, no government would be necessary.”3 The Federalist No. 51 (James Madison) (Jacob E. Cooke ed., 1961). Government exists to constrain bad actors in public, and the rule of law exists to constrain bad actors in government. Libertarians like Barnett, Philip Dematteis, and Friedrich Hayek would likely argue that Vermeule’s common-good constitutionalism falls into that “great trap” of “statist” thinking — “the belief that it is possible for human reason to comprehend, and so to design and manipulate, the vast complexity of human social life.”4 Dematteis’s critique of authoritarians generally is shared by Friedrich A. Hayek in his analysis of the “knowledge problem.” Friedrich A. Hayek, The Constitution of Liberty 1-8 (1978). But who would these legislators and judges be? How can we trust them to go beyond the rule of law constraints of the legal system in order to achieve some nebulous common good?
Plato offers some insightful analysis of these questions in his dialogue Crito. The Crito is often considered an apology for authoritarianism, but when read contextually, it contains greater insight on the question of authority in general. In the dialogue, Socrates, having been condemned to death in the Apology, is waiting in jail for his sentence to be carried out. In the dead of night, Crito, Socrates’ friend and acolyte, bribes the guard and enters Socrates’ jail in the dead of night to encourage Socrates to escape.
While in the jail cell, Socrates and Crito dialogue on the reasons for obeying or disobeying the law. In the Apology, Socrates was found guilty by the jury of Athens for impiety and corruption of the young. It is important to read the Apology in conjunction with the Crito, as the references between the two are extensive.5 N.A. Greenberg, Socrates’ Choice in the Crito, 70 Harv. Studies in Classical Philology 45, 45 (1965). This reading is challenging, because the political theory defended by Socrates in the Crito appears contradictory with the philosophy espoused by Socrates in the Apology. Near the end of the dialogue, Socrates introduces a second interlocutor who embodies the Laws and the Community of Athens to provide the arguments for following the law. The arguments given by the Laws and the Community fall into four categories: (1) that Socrates’ residence in Athens shows that he consented to be governed by the Laws of Athens; (2) the Laws and Community of Athens has provided for Socrates’ birth and education, and Socrates cannot pick and choose which Laws to follow; (3) what is known as the argument of “fair play” — to disregard the law would essentially be free-riding off the citizens following the law; and (4) utilitarian reasoning: essentially, “what if everyone didn’t follow the laws?” type of reasoning. Greenburg notes that none of these arguments are particularly compelling, and while these concepts are more fleshed out by later writers, Plato does not greatly elaborate on the reasons.
Ann Congleton provides an interesting interpretation of the dialogue. Comparing the Crito with other dialogues, including the Statesman and the Laws, she argues that Plato identifies two types of lawlessness — a higher and a lower lawlessness. Congleton identifies the higher lawlessness as the “rule of reason,” that is, the subject is guided by the principle that one does not legislate to just men. In that sense, the “political ideal is not full authority for laws but rather full authority for a man who understands the art of kingship.”6 Ann Congleton, Two kinds of lawlessness: Plato’s Crito, 2 Political Theory 432, 435 (citing Statesman 294A). Far below the rule of reason is the rule of law, an imperfect principle that citizens should not act contrary to the community’s sometimes unsatisfactory laws. This unsatisfactory rule is better, however slight, to the lower lawlessness, in which a magistrate rules from his own fickle motivations.7 Id. (citing Statemesman 297E). Both the higher and lower lawlessness, it would seem, appear to be liberation: liberation from the rule of law and its requirements for living in the community. Nevertheless, both forms of lawlessness are essentially submissive. The lower lawlessness is submission to the baser passions, an unrestrained personal licentiousness. The higher lawlessness is also submission, but it is submission to the rule of reason.
Barnett asserts that legislatures can assert no justification on legislating on spiritual matters over nonconsenting citizens, that judges are unqualified to assess moral claims in making judgments, and that a governmental scheme which cracks down on dissenting citizens will naturally lead to societal conflict. Reviewing Barnett’s critique with Congleton’s analysis of the Crito, what makes us so sure our legislators and judges will be Socrates rather than Critos?
A legal and political system of Socrates’ would certainly be an anomaly. A system where strict rules give way in order to protect a vague notion of the common good is likely to lead to abuse. It is a deep skepticism of the perfection of man which lends support for the rule of law generally. Even conceding that it would be better to be ruled by Socrates, by those bound by reason, than to be ruled by Critos bound by law, we must ask how we can make a Socrates? In the dialogue, even Socrates himself could not make Crito into a Socrates!
Confucius, writing from a very different context, required an extensive educational program meant to train (economically able) people to become jun zi (translated as the “gentleman,” or perhaps more accurately as the “exemplary person”). It would be those people who are morally, culturally, and politically educated who would be able to be effective advisors among the many kingdoms of ancient China. Moral education also plays a central role in moral development through habituation in the work of Plato and Aristotle. It is difficult to see how an activist judge can help create the foundations needed to produce a Socrates. Certainly, focusing only on Vermeule’s discussion on the judiciary, no judge can create this on his or her own.
Diversity is Our Liability
Barnett’s second argument is also strong. It can be described as an argument from human experience, which shows us how dissenting minorities are often punished for not complying with the duties imposed on them by the majority. One example of this would be the persecuted Quakers killed in Boston Square by the Congregationalist majority. Perhaps a polis, a community which promotes the common good, needs some semblance of homogeneity — a condition unsuitable for modern states.
Indeed, it would seem that the United States was never a suitable place for an integralist state, as North America, since the colonial times, has always had a significant amount of religious pluralism. Even at the formation of the American republic, while there were shared Christian values among the founders, there was also religious diversity throughout the American colonies, as some (southern) colonies had a more significant connection with the Anglican/Episcopalian Church, Congregationalist leadership in New England, and Pennsylvania, whose Quaker heritage founded the province to specifically welcome different religious communities. Among the founders themselves, there also seems to be religious diversity, with many being conventionally Christian, some leaning toward Deism, and many, whether they acknowledged it or not, falling somewhere in between.
However, established religious systems, and civil religion more generally, is no stranger to U.S. society. John Witte, Jr., for example, provided an excellent commentary on the civil religious system that existed in Massachusetts, as drafted in its 1780 Constitution. Such a system recognized the need for a mild form of religious establishment in order to spread the morality necessary for the maintenance of the state, with free exercise existing as an assertable remedy against established Congregationalism. This model of religious freedom was abandoned in the mid-19th century, when the influx of new immigrants from primarily Catholic countries threatened to replace the existing establishment with their own, inviting the move to a more Jeffersonian view of separation of church and state which began to take hold in American constitutional law.
Vermeule’s Catholicism, and particularly his Catholic integralism, distracts his critics from the true moral underpinnings of his society. Vermeule would likely argue that the notion of the “common good” is not based solely on Catholic theology, but on the classical moral tradition. The common good was not a Christian invention, but a shared notion in the philosophy of Plato, Aristotle, and, arguably, Confucius. Critics will point out that Vermeule’s interpretation of a common good in the classical tradition may look suspiciously like Catholic moral teaching. Vermeule’s response — if I may be so bold as to speculate as to one — would likely be to state that Catholic ethics have long engaged classical philosophy, shrug, and perhaps declare that all roads lead to Rome.
In all, Barnett’s challenge to Vermeule’s common-good constitutionalism is legitimately concerned with the practicality of its vision. Barnett’s critique is bolstered by being able to cite history as an ally, as attempts to create a new state dedicated to the good life contains threats of paternalism and authoritarianism. Many dictatorships, it can be recalled, were established in order to establish a so-called “common good.” Barnett’s challenges to Vermeule’s society stand, and it is unclear how a society dedicated to the common good can address the issues of education of the leadership and the liabilities of diversity.
Further, going back to the subject of Vermeule’s original article, it is unclear how a new theory of interpreting the Constitution will be able to create Vermeule’s society. It remains to be seen how a common-good constitutionalism, over originalist legal interpretation, would be able to construct a society at all. How can a conservative judge build the moral, educational, and even economic foundations for a society to be able to be directed toward the common good? How can a system exist when its operators are encouraged to undermine it?
A Holistic Society
Vermeule’s project is holistic, and constraining his philosophy of the state and politics with legal theory will naturally lead to the presumption that Vermeule is calling on judges to create his ideal state. But that would be a gross misunderstanding of his position. Rather, a judiciary directed toward the common good cannot act alone, but must act within a totality of society which advocates such a view. This transformation cannot come from a judiciary, but from every aspect of culture. It appears, however, that Vermeule is in good company, as other writers who align with his project have proposed other ways for a modern state to better reflect an Aristotelian political community.8 See Patrick Deneen, Why Liberalism Failed (2018); see also Sohrab Ahmari, The Unbroken Thread: Discovering the Wisdom of Tradition in an Age of Chaos (2021).
But while Vermeule’s compatriots, writers like Patrick Deneen and Sohrab Ahmari, have challenged the liberal (in the most general sense of the word) underpinnings of the modern state in their cultural and political criticism, Vermeule is interested in criticizing liberalism as he sees it in the legal community, particularly in his own legal community – the legal right – embodied by such organizations as the Federalist Society and the Heritage Foundation. The Federalist Society, a cavalcade of conservative and libertarian law students and practitioners, was birthed to combat the legal left’s domination of the academy and the courts. As a marriage of convenience between those who identified as “conservative” and those who identified as “libertarian,” two ideological positions with entirely different goals, the legal right gathered under the banner of originalism as a theory of interpretation. Vermeule’s Atlantic essay challenged the standard of conservative jurisprudence — originalism — asserting that originalism itself is no raison d’etre. Originalism is simply what it is — a theory of interpretation — one that does not imagine any wider theory of the state.
But the focus on originalism distracts from Vermeule’s wider project. It is simply a mistake to assume that Vermeule is making an argument that an activist Supreme Court can create a state directed toward the common good. We are misled by immediately equating Vermeule with a conservative Dworkinianism. The question then becomes — what is the common good? — a question to which Barnett is skeptical that Vermeule can offer a sufficient answer.
Adrian Vermeule wrote an article about originalism, and legal conservatives received his message coolly. It seems that Vermeule has abandoned the rallying cry of the conservative legal movement: a theory of interpretation to constrain the latitude of the U.S. Supreme Court in the generations prior. But originalism is just that — a theory of interpretation — and for Vermeule, it is insufficient to realize the purposes of the state. His critics will say that he wants too much, that Vermeule’s theory is a general theory of the state — legally, culturally, socially, and religiously. No judge that chooses to advocate Vermeule’s common-good constitutionalism can create such a society through mere legal interpretation. Mere legal interpretation, acting alone, cannot create anything. And that, it seems, is Vermeule’s point. ♦
Aaron J. Walayat is an attorney based in Pittsburgh, Pennsylvania. He graduated with his J.D. from Emory University in 2019 and his B.A. from Washington & Jefferson College in 2016. While at Emory, he was a former member of the Journal of Law and Religion.
Walayat, Aaron J. “Vermeule’s Society and Its Enemies.” Canopy Forum, August 18, 2021. https://canopyforum.org/2021/08/19/vermeules-society-and-its-enemies