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Adrian Vermeule’s Sixteenth-Century Constitutionalism

Adrian Vermeule is a rarity: a self-described conservative in the legal academy. The Tyler Professor of Constitutional Law at Harvard, he displayed his talents on March 31 in an Atlantic essay entitled “Beyond Originalism.”

One might expect a conservative legal scholar to be a defender of the Constitution. Yet here, the article would disappoint. Rather than be “enslaved to the original meaning of the Constitution,” Vermeule calls for “a different, more ambitious project,” a new doctrine that he solemnly baptizes as “common-good constitutionalism.”

Vermeule, in short, is an inveterate critic of the 1789 document. He rejects “the terms set by legal liberalism” and urges abandoning “the defensive crouch of originalism.” In its stead, he prescribes common-good constitutionalism to institute a form of government that opposes liberty as an end in itself and emphasizes strong rule that eagerly legislates morality, “a core and legitimate function of authority.” Moreover, his system would instill respect for “the authority of rule and rulers” and “the hierarchies needed for a society to function.”

Vermeule’s analysis unfolds in a critique of recent rights-based jurisprudential theories coming from both the Left and the Right. On the left-libertarian side, he recalls the philosophy of legal scholar Ronald Dworkin, who advocated “moral readings of the Constitution.” One result of this formula was the 1992 Supreme Court decision of Planned Parenthood v. Casey that encouraged each individual to “define one’s own concept of existence, of the universe, and of the mystery of human life.” Vermeule exercises all of his conservative muscle in decrying this “abominable” statement and places it “beyond the rule of the acceptable forever.” At the same time, however, he finds partial common ground with Dworkin. His own common-good constitutionalism “is methodologically Dworkonian, but advocates a very different set of substantive moral commitments and priorities.”

On the conservative doctrine of originalism, Vermeule concedes that it initially provided some help to conservatives who in the 1970s were “struggling against an overwhelmingly left-liberal culture.” But, he now finds it no longer worth defending.

Turning from constitutional scholar to political analyst, he reasons that if Trump is re-elected, a version of conservative legalism will prosper, and that even if Trump is defeated, legal conservatism “will remain a potent force.” Vermeule here may underestimate the influence of left-liberal culture, which showed its power when it engulfed the Obama White House in rainbow lights following the Court’s new definition of marriage.

Certain features of our constitutional system, such as representative government, are not mentioned, perhaps because they have so little place in the administrative state that Vermeule favors.

More to the point, a primary purpose of originalism is not to provide a full interpretation of the Constitution, but to prevent activist judges from imposing their own personal moral and ethical standards on the nation. Such choices, where law prescribes, should be determined by elected officials and/or by authorities in the different states. As the originalist Antonin Scalia pointed out in his dissent in the 2014 Obergefell decision, the five justices in the majority

Know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

Doesn’t Scalia’s originalism here allow for just the kind of moral principle that Vermeule supports?

The nub of Vermeule’s argument, however, does not turn on these secondary issues, but on the elliptical meaning of common-good constitutionalism. Vermeule here leads us back from contemporary politics to the late 16th-century and the little-known theory of “reason of state” (ragion di stato) that provides much of the inspiration for his doctrine. This theory’s view of rule, or what one can call its “constitution,” aims to promote the trinity of “peace, justice, and abundance,” to which Vermeule immediately adds, on his own reckoning, “health and safety”—thereby showing his relevance in light of the current COVID-19 pandemic. 

Reason-of-state constitutionalism, he reiterates, aims to reinforce authority and hierarchy and to implement sound morality. Transferring this moralistic authoritarianism to our time, Vermeule argues for “a powerful presidency ruling over a powerful bureaucracy,” which acts through “administrative law’s inner morality.” Other features of our form of rule, such as representative government, are not mentioned, perhaps because they have so little place in the administrative state that Vermeule favors.

Common-good constitutionalism expresses, as one would expect, Vermeule’s own views of the common good. Even so, he seems to ignore ways in which America’s form of rule, under certain jurisprudential theories, is supportive of some of the characteristics of reason-of-state theory. No doubt, a concern for rights has more weight in American constitutionalism than Vermeule finds in the 16th century, but he surely knows that the meaning of constitutionalism in the broadest sense is not exhausted by what is spelled out only in the written Constitution.

Many of the underlying ideas of constitutionalism are explained and elaborated in the debates and commentaries on the written document, such as in the Federalist Papers, where one will find accounts of justice (“Justice is the end of government. It is the end of civil society”), of defense and peace, of abundance or wealth, and of limitations as well as protections of rights. Vermeule should present these ideas so that we get a fuller account of our constitution, rather than the mistaken and ideologically driven interpretations of it. He might find much more to his liking than he thinks.

Adrian Vermeule is an intelligent iconoclast who has crafted a rhetoric to appeal to a small audience of impressionable acolytes. He must know that his proposal has little prospect of winning the approval of a majority today. Near the end of his essay, he pulls back and, in more accommodating language, speaks of “the Constitution’s commitments to promoting the general welfare and human dignity.”  This is a good start—except that the Founders avoided speaking of dignity, a word that modernity has filled with dangerous Dworkinian implications.

Reader Discussion

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on April 16, 2020 at 08:32:52 am

One must welcome yet another critique of an attempt to bork Dworkin by out-Dworkining him. Just as more people talk about the Atlantic than read it, I suspect by now there are more reviews than readers of Vermeule's essay. I never thought Dworkin worth the effort of reading him and concluded at the time that he was but a candle in the academic wind, which, I suspect, has by now also blown out the flame of common-good constitutionalism, leaving Vermeule the fleeting legacy of W. Bush's compassionate conservatism.

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Paladin
on April 16, 2020 at 08:44:49 am

Mr. Vermeule needs a refresher in 16th Century Constitutionalism - the right of resistance merging with the personal inspiration of Sola Scriptura (the Reformation effect, and there hardly 'fragmentation') - for the former Gelderen's work, for the latter, well, beyond the infallible Bible, a particular focus on the English Reformation with special emphasis on Tyndale the 'Morning Star' of the Reformation there. Hierarchical Constitutions are a Tridentine Roman Catholic cum Establishmentarian thing finding no presence in our Constitutional deliberations apart from what we drove out or gradually left behind, that heritage represented in modern European administrative statism driven by ideology tending toward the totalitarian. Our unity born of common law lineage in working relation with personal no less than practical Christianity. For the Framers knew that 'justice' was and remains a 'weightier matter' of the law, without losing sight of the others, 'mercy and faith'. See, Matt 23;23.

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gdp
on April 16, 2020 at 10:21:57 am

“This is a good start—except that the Founders avoided speaking of dignity, a word that modernity has filled with dangerous Dworkinian implications.”

We can know through both Faith and reason that this statement below, affirms the self-evident Truth that our inherent Dignity comes from God, not man.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and The Pursuit of Happiness.”

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Nancy
on April 16, 2020 at 12:35:21 pm

Nancy- I think you're right that the Founders would agree that all human beings have inherent dignity, because they believed that "all men are Created equal."

However, what Ceasar might be referring to here is to Ronald Dworkin's idea of "Dignitary harms," where the government is expected to stop me from hurting your feelings, especially when I might claim your activities are immoral. That, of course, was nonsense the day Dworkin wrote it, and has no basis in the Founders' ideas, which protected liberty and expected rigorous debate, criticism, and discussion

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on April 16, 2020 at 10:34:13 am

“He must know that his proposal has little prospect of winning the approval of a majority today.”

True, for so many who profess to be Christian, claim there are many Christ’s, even though we can know through both Faith and reason, and The Law Of Non Contradiction, There Is Only One Begotten Son Of God, One Word Of God Made Flesh, One Lamb Of God Who Can Take Away The Sins Of The World, Our Only Savior, Jesus The Christ.

The Word Of God Made Flesh Will Not Contradict The Father.There Is Only One Way, One Truth, One Life (Light) Of Perfect Love.

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Nancy
on April 16, 2020 at 11:54:25 am

https://sancrucensis.wordpress.com/2020/04/01/adrian-vermeules-brilliant-essay-on-common-good-constitutionalism/

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Nancy
on April 16, 2020 at 13:01:31 pm

When I read Vermeule and F H Buckley (also if quite differently Deneen and Christopher Caldwell's latest, perhaps Ahmari as well) I think of the idea of being too smart by a half - though I do not intend it flippantly in the least but rather with full respect for them and what they are seeking to grapple with and in a sense subdue or come to terms with. I also think of Yeats' poem, The Second Coming:
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold ...
(Reflecting what these gentlemen are variously seeking to confront.)
But I do not see how the most elemental tenets of classical liberalism (tolerance, open and free inquiry, etc.) can be thrown out with the bathwater. The battle is great and momentous and freighted with difficulties in our late modern and post-modern period - radical autonomy/nominalism and a disdain for truth beyond the truth of raw power dynamics. But the center is a critical aspect of what needs to be maintained and fought for, including, e.g., Scalia's originalism in his Obergefell dissent in addition to (and in dialectical conversation with) a better founded tolerance and open inquiry than a Dworkin offers.

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Michael Bond
on April 17, 2020 at 09:43:54 am

The only response Vermuele needs comes from Juvenal: “Quis custodiet ipsos custodes?”

What happens when someone with a different view of the common good takes over?

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Karen
on April 17, 2020 at 09:55:06 am

Professor Wolfe, you are, of course, correct. Immoral acts, are acts that demean our inherent Dignity as beloved sons and daughters, and thus are always, among all people, regardless of one’s desires/inclinations, physically, psychologically, emotionally, and spiritually harmful. One cannot be affirming the inherent Dignity of the human person while engaging in acts that demean our inherent Dignity, simultaneously. If someone’s feelings are hurt because those of us who respect their inherent Dignity as a beloved son or daughter desire to protect them from harm, I would be concerned that they do not believe that they have an inherent Right to be treated with Dignity and respect in public and in private.

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Nancy
on April 17, 2020 at 22:11:23 pm

In addition to being anti American to the core of his being Vermeuele is also on a personal level a truly reprehensible individual. His tweets reveal his inner most rotten character. He’s a pompous individual.

It is sad that people will associate his anti Catholic “integralism” with Catholic social teaching.

This article was much much to soft on this individual.

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J.R.
on April 18, 2020 at 09:28:32 am

The erroneous notion that public morality and private morality can serve in opposition to one another and are not complementary, has led to grievous error in both Faith and reason, causing physical, psychological, emotional and spiritual harm.

“Whoever is against the Pope is, ipso facto, outside the Church.”

This is true only if it is true that the man who has been elected to the Papacy is not a schismatic, having set himself against every other validly elected Pope, and thus having set himself against Christ, and His One, Holy, Catholic, And Apostolic Church, outside of which, there is no Salvation, due to The Unity Of The Holy Ghost, is no longer in communion with Christ and His Church.

“If there is a union of a private nature, there is neither a third party, nor is society affected.” Jorge Bergoglio, prior to his election as pope, denying that sin done in private is sin, and thus denying The Unity Of The Holy Ghost (Filioque).

One cannot be affirming the essence of Integralism, while denying The Unity Of The Holy Ghost.

“It is not possible to have Sacramental Communion without Ecclesial Communion”, due to The Unity Of The Holy Ghost, “For It Is “Through Christ, With Christ, And In Christ, In The Unity Of The Holy Ghost”, that Holy Mother Church, outside of which, there is no Salvation, due to The Unity Of The Holy Ghost, exists.

See From The Catechism Of The Catholic Church:
II. THE DEFINITION OF SIN CCC 1849-1851

See Eucharist Prayer- John 21-26

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Nancy
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on April 17, 2020 at 01:01:47 am

[…] Scapegoating “Christian Nationalists” for Pandemic – Steve Wedgeworth at Public Discourse Adrian Vermeule’s Sixteenth-Century Constitutionalism – James Caeser at Law & Liberty Pugin or Newman? Debate over Tradition that Still Divides […]

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