Adrian Vermeule would like to transform the United States into an authoritarian, Catholic theocracy. In an essay for The Atlantic, the esteemed Harvard Law School professor implores his fellow conservatives to abandon the “political expedient” of originalism, the legal doctrine that compels judges to interpret the words of our nation’s founding document on the basis of their intended meaning at the time that they were written. Instead, Vermeule argues that right-wing jurists should reinterpret the U.S. Constitution as a charter demanding the subjugation of infidels to “rulers” who share all of Adrian Vermeule’s views on God and good government.
This may sound like a caricature of the esteemed legal scholar’s thesis. But it is a faithful (if pointed, and contemptuously phrased) summation of Vermeule’s position. And some conservatives insist that it is no more extreme or authoritarian than the liberal consensus on constitutional interpretation.
Before rebutting the right-wing apologias for Vermeule, it’s worth examining his argument in a bit more detail. The scholar opens his column with a frank admission that the idea that constitutional disputes can and should be resolved by having a bunch of lawyers with no historical training ascertain the putatively objective, 18th-century meaning of the language in our founding document was always a tactical pretense for advancing conservatives’ ideological ends:
The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.
Therefore, Vermeule implores his fellow Christian theocrats to stop being polite and start getting real: The time has come for formulating a theory of jurisprudence that allows the religious right to impose its vision of the good on the American people, whether they like it or not. He dubs this constitutional theory “common-good constitutionalism.”
Common-good constitutionalism is not legal positivism, meaning that it is not tethered to particular written instruments of civil law or the will of the legislators who created them … Common-good constitutionalism is also not legal liberalism or libertarianism. Its main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well. A corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to “protect liberty” as an end in itself …
[U]nlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. 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. 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.
Vermeule never owns up to the sectarian particularity of his conception of the common good. The word Catholic never appears in his column, but references to concepts such as the principle of “subsidiarity” betray the author’s commitment — voiced unabashedly in other contexts — to the establishment of a Catholic integralist state.
Nevertheless, Vermeule makes clear that the good habits he wishes for Uncle Sam to instill in his “subjects” are those favored by the Christian right. His just ruler would give the “the traditional family” the “benefit of presumptive favor,” “curb the social and economic pretensions” of those who put their personal sexual satisfaction above the common good, and reject the logic of the Supreme Court’s decision in Casey v. Planned Parenthood (which upheld the right to an abortion) as “abominable” and “beyond the realm of the acceptable forever after.”
To enforce this Catholic integralist state’s vision of the good, Vermeule counsels conservatives to make peace with “a powerful presidency ruling over a powerful bureaucracy” that will be seen “as the strong hand of legitimate rule,” protecting the people from both “corporate exploitation” and the avaricious libertinism 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.”
Upon reading all of this, many readers of The Atlantic thought out loud (in so many words): “Huh. That sounds kind of fascist!”
Few conservatives defended the substance of Vermeule’s vision, which is (among other things) plainly hostile to Republican economic orthodoxy. But some right-wingers did take exception to the left’s condemnation of Vermeule’s authoritarianism — on the grounds that he was merely playing the liberal consensus on constitutional jurisprudence in a conservative key. As Michael Brendan Dougherty, senior writer for the National Review, tweeted:
Others deemed Dougherty’s assessment too sanguine, but seconded his argument that there was little appreciable difference between Vermeule’s theory of jurisprudence and Ruth Bader Ginsburg’s.
I consider Dougherty one of the more worthwhile voices on the American right. But his argument here is baffling. Liberals aren’t likening Vermeule’s vision to fascism merely because he dared to slot conservative moral commitments into the logical structure of liberal constitutionalism. And Vermeule’s essay would not read anything like a progressive New York Times op-ed with a handful of changes in its vocabulary.
There is one point in Vermeule’s essay that I have some sympathy for, and which I take Dougherty to be gesturing at. The Harvard professor writes that “all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority.” As a frequent critic of putatively “objective” media, I’m partial to the notion that assertions of ideological neutrality often function as means of covertly enforcing ideological consensus. (For example, throughout the past decade, nonpartisan moderators at presidential debates routinely framed America’s growing national debt as an objective crisis, even as center-left economists disputed that premise, which has since been rejected by such totems of established reason as former IMF chief economist Olivier Blanchard.)
So, I think Vermeule is right to suggest that the bedrock constitutional principle that the state should not prescribe or privilege any moral framework — so as to preserve the liberty of individuals to pursue their own conceptions of the good — is itself a kind of moral framework. It is not actually a self-evident truth that individual liberty should take precedence over social or national cohesion. That idea is relatively novel in human history, and rejected by the world’s rising power. Meanwhile, many would dispute the premise that the U.S. state enforces no official public morality. An American socialist who chooses to act on her individual belief in the illegitimacy of private ownership will, in short order, find herself persecuted by a state that endorses other individuals’ moral intuitions about property rights. Meanwhile, a Catholic who believes in fetal personhood — and wishes to exercise her democratic rights to pursue the outlaw of abortion — will (at least in some parts of this country) find her political freedom hemmed in by an authority that considers the protection of reproductive autonomy to be a more fundamental moral imperative.
It’s fair, then, to argue that Vermeule is not unique in wishing for the state to uphold an official morality of sorts. And it is also true that the liberal conception of a “living constitution” enables progressive jurists to bend the law into more ideologically pleasing shapes, just as Vermeule would have his fellow Catholic reactionary legal scholars do.
But none of this means that Adrian Vermeule and the New York Times editorial board have equally fascistic conceptions of good government. Perhaps, analogizing Vermeule’s vision to Franco’s or Mussolini’s obscures more than it reveals. But the theocrat’s call for conservatives to embrace “political domination and hierarchy,” as a means of coercing all of society into a singular moral purpose dictated from above — a moral purpose that would bring low the (((urban-gentry liberals))) whose sexual licentiousness and financial machinations have corrupted the spirit of the people — is quite plainly more evocative of fascism than, say, a liberal op-ed defending affirmative action with appeals to the common goods of diversity and equality. And it’s hard to understand how a commentator as perceptive as Dougherty could think otherwise.
One might object to my implying an anti-Semitic subtext to Vermeule’s disparagement of urban liberals, a demographic that is disproportionately Jewish, but majority gentile. My intention is merely to illustrate why his column sets off alarm bells for some Jewish readers. I have no reason to doubt that Vermeule’s contempt for urban liberals is ecumenical. I do, however, have reason to believe that in the United States he would like conservatives to create, Jews would be second-class “subjects.” In 2018, Vermeule addressed a conference on Christianity and liberalism hosted by the Witherspoon Institute, a conservative think tank. The institute’s official journal reported that “in response to a question” after his prepared remark, “Vermeule clarified that [his Catholic integralist] state would exercise coercion over baptized citizens in a manner different from non-baptized citizens.”
Liberals may endorse a tacit state morality, and a theory of jurisprudence that facilitates that morality’s advancement. But to suggest that liberal constitutionalism and Vermeulian integralism are therefore equally “banal” (or, as Dougherty’s conservative interlocutors suggested, equally authoritarian) is pure sophistry. Progressives’ official morality endorses popular sovereignty and equality before the law as public goods. The liberal state might not treat these as absolute goods — it may remove certain questions from democratic contestation by declaring them inviolable rights, or privilege certain conceptions of legal equality over others. And it may, in some instances, do these things in a manner that feels oppressive to reactionary Catholics, as when the Supreme Court established a constitutional right to abortion in Roe v. Wade, or when the Obama administration defined discrimination against transgender people as sex discrimination, thereby (arguably) forcing Catholic hospitals that accept federal funding to perform gender-reassignment surgeries.
But the liberal state has also allowed pro-life Catholics to roll back abortion rights through democratic participation, and to defend their institutions’ supposed right to enjoy tax-exempt status and federal funding while discriminating against LGBTQ individuals. And no progressive New York Times commentator has ever suggested that conservative Catholics should be denied the right to vote or file lawsuits on the basis of their beliefs; no liberal has called for the state to exercise coercion over its Catholic “subjects” to a greater degree than it coerces cosmopolitan urbanites.
Vermeule does not explicitly endorse restrictions on the franchise or the suspension of elections in his Atlantic column. But he puts great emphasis on the righteousness of “coercion” and “political domination,” pointedly refers to the mass public as “subjects” rather than citizens, and stipulates that his desired ruler’s dictates may contravene “the subjects’ own perceptions of what is best for them.” Elsewhere, as we’ve seen, he’s posited that Jews, Muslims, and all other non-baptized populations should not expect equal treatment under his desired constitutional order.
By itself, this rhetoric would seem sufficient to establish that Vermeule’s state would constrain the political and social freedoms of liberals to a categorically different degree than the progressive movement aspires to abridge those of Catholics (or, more precisely, publicly subsidized Catholic institutions). But the authoritarianism of Vermeule’s vision becomes inarguable once one admits a smidgen of social context into evidence.
Observant Catholics comprise about 20 percent of the U.S. population, according to a Pew Research survey taken last year. And that percentage is in steady, long-term decline. Meanwhile, about 46 percent of Catholics who participated in the 2016 election voted for Hillary Clinton, according to exit polls. Taken together, these data points suggest that only a tiny percent of the U.S. public is both Catholic and committed to supporting pro-life politicians. The subset of that fraction that would like the United States to become a Catholic nation is, presumably, miniscule. When Vermeule speaks of coercion, domination, rulers, and subjects, he isn’t using idiosyncratic synonyms for common liberal tropes, as Dougherty ludicrously argues. Rather, Vermeule is articulating the prerequisites for imposing his marginal sect’s vision of good government on a population that overwhelmingly rejects it.
The marginality of Vermeule’s project may render it more eccentric than alarming. But Catholic integralist law professors aren’t the only faction within the conservative movement who’ve come to see their cause as incommensurate with democracy. Nativists regard the combination of our expansionary immigration regime and universal suffrage as a slow-motion coup. Libertarian billionaires have long regarded mass democracy as a threat to the higher good of inviolable property rights. And the broader Christian right doesn’t need to look at Gallup polls to know its cause is becoming more minoritarian by the year.
The party that represents these constituencies does not forthrightly endorse the political domination of hostile subjects. But it does seek to subordinate democracy to its vision of the common good through voting restrictions, jurisdiction stripping, and gerrymandering. In fact, just yesterday, the Republican Speaker of Georgia’s House of Representatives argued that allowing voters to cast ballots by mail would be “extremely devastating to Republicans and conservatives in Georgia” because it “will certainly drive up turnout.”
Vermeule may be little more than an overread crank with a coveted sinecure. But the fact that conservatives can read his theocratic manifesto as “banal” is alarming. If calling for the persecution of the “urban gentry” is merely giving liberals a taste of their own medicine, then how could any God-fearing conservative object to a little garden-variety mass voter suppression?
