Picking the Best Fight with Adrian Vermeule

Vermeule’s Atlantic essay defending “common good constitutionalism” (CGC) excited a lot of controversy, but, on one level, it is hard to see why. Vermeule argues that “conservatives” ought to discard originalism for a kind of Dworkinian fit-and-justification style of constitutional interpretation that safeguards a comprehensive conception of the common good defended by a strong executive aided by a robust bureaucracy. He calls this approach “illiberal legalism” (more on that formulation below).

To the uninitiated, the essay looks like the usual Vermeulean performance in which Vermeule spots paradoxes in platitudes and then re-states those platitudes in crisply inflammatory prose exquisitely highlighting the paradox. Consider, for example Vermeule’s essay on the “optimal abuse of government power” the title of which, by pairing “abuse” with “optimal,” highlights the paradox in the truism that it’s excessively costly to eliminate all abuse of governmental power. This schtick is so well-known that it has earned a much-coveted April Fool’s satire from Larry Solum. The diction of the Atlantic Essay follows this script, using phrases calculated to shock liberal pieties but, at least on the surface, urging nothing more than garden-variety paternalism of the Devlin/James Fitzjames Stephen variety.

Take his paragraph where he says that CGC has no fear of “domination and hierarchy” whereby “rulers” use laws to “re-form” their “subjects’” “perceptions.” Pretty creepy, huh? But use Google Translate to change the language from Vermeulese to Platitude, and you get the following: Sometimes citizens — say, drug addicts, alcoholics, dummies who ride motorcycles without a helmet — do things that sensible people know are self-destructive. The government should prevent them from doing so, and, in time, the example of such laws and obedience thereto will inculcate more sensible behavior. You do not have to agree with this view of the State to realize that it is familiar and not especially shocking.

Likewise, it is controversial in an academic sort of way for Vermeule to call for reading “substantive moral principles that conduce to the common good … into the majestic generalities and ambiguities of the written Constitution.” But such a position, read abstractly, is not really a big shock. Arguably, Ronald Dworkin took something like the same stance in rejecting what he took to be Isaiah Berlin’s moral pluralism. Arguing that the law should not merely set out neutral rules to protect autonomy but should also advance a conception of the good does not put one outside American legal tradition.

So why all the fuss? David Dyzenhaus has, as usual, put his finger on the reason: Vermeule is choosing connotations — especially that phrase, “anti-liberal legalism” — that flirt with actual current wannabe or actual dictators like Viktor Orban and Vladimir Putin. I’ve called this flirtation a kind of “anti-liberal chic” — a device to garner maximum frisson (and downloads) without actually saying that one endorses (say) criminally prosecuting investigative journalists or having cops beat up people in street parades. After the jump, I will explain why this barely coded dog whistle is pernicious and how one should fight against it — not with debates about “integralism” and similar abstractions but instead with pointed questions about factual nitty-gritty going on in places like Hungary, Poland, China, and Russia.

1. How Fussing About Integralism Distracts Us From What’s Really Urgent

One way to argue with Vermeule is what I shall call “the abstract approach”: This strategy challenges Vermeule’s general claims about the proper role of the State. The problem with this sort of argument is not that it is unpersuasive but that it misses what is rightly most controversial about Vermeule’s argument — not his abstract prescriptions but his insinuations and connotations about specific governmental actions that dare not speak their name.

Take, for instance, the fuss over Catholic integralism. “Catholic Integralism” is the belief that government and society should be integrated to pursue a single conception of the common good rooted in Catholic religious principles. Integralism is now enjoying a recent price spike in a tiny niche of the marketplace of ideas, although one can doubt, despite a surprisingly successful IPO, that it will have much staying power.

Understood merely as an abstract bundle of propositions about the proper role of the state, it is hard to know whether or not integralism is worth anyone’s angst. Sure, Vermeule likes to excite his audience with sly Counter-Reformation innuendos. (His twitter handle, “Vermeullarmine” is a hat tip to Roberto Bellarmine, the great Council of Trent Catholic reformer). But it is hard to know how he or fellow integralists would translate Catholic theology into actual laws and governmental actions. Patrick Deneen, a Catholic writer championed by Vermeule,assures us in his Why Liberalism Failed (page 19), “[m]oving beyond liberalism is not to discard some of liberalism’s main commitments—especially those deepest longings of the West, political liberty and human dignity” but instead requires us to jettison only “ideological remaking of the world in the image of a false anthropology,” which he later describes (page 30) as “1) anthropological individualism and the voluntarist conception of choice, and 2) human separation from and opposition to nature.”

That’s it? I just have to repudiate a bunch of semi-intelligible abstractions about human nature and I can join the Integralist Club? At that level, integralism might just be Council-of-Trent fancy dress for stuff that a lot of us (not all, but a lot, myself included) already believe. After all, I already disagree with the notion that human values are legitimized only by our consent to them. On that level of abstraction, I guess that, like Monsieur Jourdain, I’ve been speaking integralist all of my life without knowing it. I just have to translate the values I care about (say, the right of each to pursue their false conceptions of the good within reasonable limits) into language that the integralists like Deneen seem to prefer (“political liberty and human dignity” but not “rights”).

Even if one disagrees with these abstract arguments, those disagreements really do not capture what is deeply troubling about Vermeule. They merely highlight ordinary ongoing disagreements about political theory that have reasonable partisans on both sides.

As an example of the abstract approach to arguing with Vermeule, consider Micah Schwartzman’s tightly reasoned essay arguing that Vermeule’s Catholic integralism is “unreasonable” because it rejects Rawls’ conception of citizens as equally capable of forming rival conceptions of the good.

Micah’s essay is powerfully reasoned and clearly written, and, if you endorse Rawls’ account of the “burdens of judgment” and “reasonable pluralism,” then you will likely also believe that Micah has laid out a convincing case against Catholic integralism. The problem, however, is that reasonable people (in the ordinary, not Rawlsian sense of the word “reasonable”) do not regard Rawls’ concept of “reasonableness” as the only reasonable way to define acceptable pluralism. If you are one of those people, then you might come away from Micah’s essay thinking that Vermeule’s worst offense is to fail to carry Rawls’ “burdens of judgment.” Vermeule would likely reply that no one should bother bearing such burdens, because it is a self-deceiving liberal illusion to think that a government can be created from such thin stuff any more than soup can be boiled from a nail. In any case, the Constitution (to coin a phrase) does not enact Professor Rawls’ Political Liberalism.

Jack Balkin provides another example of what I think is the weaknesses of the “abstract approach.” Jack argues that Vermeule’s CGC is at odds with American liberal republican traditions, because it requires “a comprehensive conception of what is really and truly good from the standpoint of human reason and divine law, as explicated through the Church's teachings,” whereas, in our liberal republican tradition, “the nature of the public good is not preordained” but instead “is something to be worked out in and through politics itself, and the contest over what is in the public good must be circumscribed by guarantees of liberty and equality.”

Maybe Jack is right that Vermeule has fallen outside any plausible “fit” with our constitutional principles. Maybe Jack is wrong. In any case, I think his rebuttal of Vermeule’s piece misses what is most important and controversial about Vermeule’s Atlantic essay — not the abstract prescriptions of the theory but rather the coy connotations of the diction.

On the abstract question of whether Vermeule’s theory fits with our republican traditions, I guess I am inclined towards Jack’s view but regard the question as a close one. Vermeule’s “common good,” despite being divinely fixed and eternal, is pretty abstract. Presumably, our perception and implementation of that common good could be mediated by politics and hedged by rights. Why does not that level of practical uncertainty satisfy Jack’s demand that our collective ends be “worked out in and through politics”? After all, Vermeule thinks that political institutions — most notably an elected President — will have to figure out how to implement the common good, which, even as laid out in various Catholic documents, is pretty vague. If that good consists of generalities like “dignity,” then I imagine that Vermeule could reach all of the specifics of our current order with just a few little tweaks (say, a stronger rule against obscenity).

Moreover, there is some historical basis for disagreeing with Jack’s reading of our liberal republican traditions. From Timothy Dwight’s 1776 Valedictory Address to Abraham Lincoln’s theologically anguished Second Inaugural, there is a deep tradition of rooting republicanism in shared sacred commitments. I do not think, therefore, that it is indisputably plain that neutrality about our common ground is a constitutional necessity. As Eisenhower famously remarked in 1952, “our form of government has no sense unless it is founded in a deeply felt religious faith, and I don't care what it is.” Just change that last phrase to “I don’t know what it is,” and you’ve got an integralist constitutional order that eternally seeks after the meaning of abstract commitments — civic equality, love of nature, respect for elders, protection for the weak, kindness towards the stranger in our midst, whatever — through democratic means. Moreover, the capacious Catholic concept of “dignity” can sweep in many of these commitments to rights: If SCOTUS were staffed by a bunch of Vatican II Jesuits, then I imagine their rulings would look a lot like Brennan opinions.

In sum, Micah and Jack both lay out eloquent and well-reasoned rebuttals to abstract arguments presented by Vermeule that overlook the reasons why we should care much about exactly what Vermeule is pressing. By focusing more on highly debatable abstract theory than on particularities of diction and style — on denotation rather than connotation — these sorts of responses to Vermeule miss what’s most worthy of criticism in his essay.

Vermeule’s essay is not controversial or even interesting because it stakes out a particularly controversial position. For what it is worth, Vermeule’s catalogue of values seems sound enough to me and well within the 18th century Federalist conception of the constitutional order: In his words, he aims to advance “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”….” If that’s the Vermeulean program, then conservative types like myself may yell, “sign me up!” Or, at least, sign me up so long as I get a fair say about the acceptable limits on the “morality” to be legislated and the “rulers” and “hierarchies” who will govern, and the scope of the tradition that will define the “family.” What Vermeule describes here is mostly just our current regime — using edgy Vermeulese (“rulers,” “hierarchies”) in place of the usual nouns (“government” and “law”).

2. The Better Way to Fight with Vermeule

What is really worrisome about Vermeule’s writing is not the dogmatic generalities but the hidden specifics. His talk at the invitation of the Polish consulate, for instance, praised the Polish government’s “protecting “the particularistic solidarities that are constitutive of so many of the goods of human life” from “experimental individualist projects of self-actualization by educated elites.” What exactly did he mean by “particularistic solidarities”? Merely celebrating Polish language and culture writ large? Or criminally punishing anyone who told the truth about Poland’s massive pogrom against Jewish Poles after World War II? Vermeule coyly did not say: He left it to his readers’ imagination.

And therein lies the problem on which Vermeule’s critics, IMHO, ought to focus. The big abstract questions of political theory are all fine things, and the voluminous debates about what is an acceptable “public reason” and what, the proper ends of a state, are all laudable enterprises. But the abstract theory of Vermeule’s essay is not what has, or should have, generated the fierce controversy it has provoked. Had his essay been written with less inflammatory prose but the same basic conception of law — a conception akin to that defended, for instance, by John Garvey — then I doubt many would be vexed. The controversy over Vermeule comes from the connotation of the diction, not the denotation of the words.

In particular, as Dyzenhaus notes, Vermeule’s particular use of “illliberal legality” combined with his focus on Carl Schmitt hints at Viktor Orban’s reference to “illiberal democracy.” Along with all that stuff about “rulers” and “subjects,” it flirts with the rhetoric of current and wannabe dictators, from Putin to Orban, now peddling alternatives to those “individualistic projects of self-actualization” that he criticizes.

The really urgent question, therefore, is not whether Vermeule is right or wrong in his abstractions. It is whether or not Vermeule really means to endorse the very specific prescriptions that this raft of tyrants wants to sell. Does Vermeule support Orban’s buying up the major media sources in Hungary and chasing away an independent university? Does he support the Polish Law & Justice Party’s law criminalizing expression about Poles’ lynching massive numbers of Jews following World War II? Does he think that the Hungarian government should launch criminal prosecutions of investigative journalist András Dezső? He is fond of invoking Schmitt’s friend-enemy distinction. In his ideal integralist republic, are Jewish citizens friends or enemies?

Those are the questions on which, I think, Vermeule needs to be pressed. Honestly, I am not sure how he would answer. After all, he and Cass Sunstein have endorsed Lon Fuller’s “thin” theory of “rule of law.” It might be that he would also safeguard, in the name of Catholic “dignity,” the sort of freedom, academic and otherwise, from which provocative writers like himself (and their audiences) benefit so much.

Who knows? But don’t ask, and he won’t tell. Engaging only with high abstractions of political theory lets him off the hook.