« Zoom as the new normal in the legal academy? | Main | The Supreme Court's Term »

Sunday, April 05, 2020

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.

Posted by Rick Hills on April 5, 2020 at 06:34 PM | Permalink

Comments

Andrew Sepielli Notes that everyone, Vermeule and his critics alike, are skating over the question of wether or not Catholic integralism is, in fact, true. “Does [Vermeule] have some combination of empirical and moral arguments that Catholicism is the true religion of which I'm unaware?” Professor Sepielli asks.

In fairness to Vermeule, he never claims in his Atlantic essay that Catholic integralism will supply the definition of “common good” that will inform his reading of the Constitution. Indeed, he never really defines “the common good” at all, beyond suggesting that the common good could be defined by unspecified “conservative” values. He’s asking the “meta” question of whether or not the Constitution could be legitimately so construed, or whether something like Berlin’s Value Pluralism must be the touchstone for any theory of the Constitution not rooted in originalism. (Damon Linker has weighed in with a defense of a pluralistic theory of constitutional construction here: https://theweek.com/articles/907011/when-conservatives-interpret-constitution-like-progressives . I take Vermeule as simply challenging the idea that pluralistic theories of the morality underlying the “living constitution” are the only ones legitimately in play. And I agree with him that it is dogmatic to insist that the only justifiable theory of values that could underlie a constitution construed according to Dworkin’s “fit-and-justification” method is some sort of theory of values pluralism).

Posted by: Rick Hills | Apr 7, 2020 6:37:32 PM

It's interesting. As a moral philosopher, I always find that these discussions about liberalism and illiberalism skate over the perfectly good first-order question of whether Vermule, in this case, is right or not about the moral position he's endorsing. Does he have some combination of empirical and moral arguments that Catholicism is the true religion of which I'm unaware? If not, then he's just another guy with an opinion.

Posted by: Andrew Sepielli | Apr 7, 2020 4:32:16 PM

"After all, I already disagree with the notion that human values are legitimized only by our consent to them."

"Sometimes citizens — say, drug addicts, alcoholics, dummies who ride motorcycles without a helmet — do things that sensible people know are self-destructive."

How'd the 18th Amendment work out?

Republicanism is flexible concerning truths, and strict as to form. Liberalism hides its Protestant authoritarianism behind pseudoscience. Foucault was right because Baudelaire was right. It's not new.

Aristotle: "...the principle of an aristocracy is virtue, as wealth is of an oligarchy, and freedom of a democracy."
Montesquieu: ..."the republican state, which has virtue for its principle."

I'm with Montesquieu. Liberals are with Aristotle but defend freedom. Vermeule is with Aristotle and defends, not aristocracy now since that's impossible, but oligarchy. That point makes no sense if you don't know what decadence is. The converts Vermeule and Ahmari are more Catholic than the Pope. They're pure kitsch. The moralists they defend are corrupt. The pederast from Opus Dei quotes St. Paul: "To the pure all things are pure".

It would be nice if this country inculcated a sense of Republican virtue in its children, but it doesn't. So here we're left with technocrats debating fascists. You're playing games with people's lives and you pretend you're not. You're spend so much time in law schools you've forgotten what it means to be a lawyer.

"Doing these cases... I began to find myself in a dangerous situation as an advocate. I came to believe in the truth of what I was saying. I was no longer entirely what my professional duties demanded, the old taxi on the rank waiting for the client to open the door and give his instruction, prepared to drive off in any direction, with the disbelief suspended."
https://www.nytimes.com/2009/01/17/books/17mortimer.html

Judge Hercules is like Gielgud playing Hamlet and "trying to get it right". Lawyers don't read Rawls; they laugh at him. The stability Vermeule and Scalia et al crave is an illusion. Stop pretending you're not playing games and you'll learn take the games more seriously.

Posted by: Seth Edenbaum | Apr 6, 2020 7:45:40 PM

" The rate of change in the policy environment, especially in the economy, is so much greater than in the late 18th century that optimal institutional arrangements must allow for greater speed and flexibility of policy adjustment by officials. That, of course, is one of the main reasons we have such a large bureaucracy in the first place. "

This observation was made some years ago by my former teacher, political theorist William Scheuerman, an actual scholar of Schmitt (but not "Schmitten"). AV surely got it from Scheuerman's work, which anyone interested in Schmitt in a serious, scholarly way would come across.

Posted by: Jason Yackee | Apr 6, 2020 7:08:42 PM

Remember when Vermeule and Posner defended torture?
https://balkin.blogspot.com/2004/07/vermeule-and-posner-defend-torture.html

-Two very fine young scholars at the University of Chicago, Adrian Vermeule and Eric Posner (son of Judge Richard Posner), have defended the OLC torture memo's legal analysis, and its restrictive view of what constitutes torture as "standard lawyerly fare, routine stuff."-

I'll say the same thing I said here 9 years ago.
Why do so politely debate fascism?

https://prawfsblawg.blogs.com/prawfsblawg/2011/07/posner-and-vermeule-cynical-about-law-dewy-eyed-about-politics.html

It's been almost 20 years since Balkin advised me that honey is a better bait than vinegar. At this point, it's becoming absurd

Posted by: Seth Edenbaum | Apr 6, 2020 4:51:27 PM

Thanks for the tip, Lucretian: Unfortunately, this piece is riddled with typos (see, e.g., “Jewish poles”), because I had no time to proof-read it. (I was trying to prepare a Monday morning class on Mottley’s well-pleaded complaint rule and getting stuck on whether and how Gully differs from American Well Works: I scribbled this out because Federal Courts was driving me nuts and I needed a break).

“Edgelords” writes:

“The politics of this style of ‘edgy’ flirtation with authoritarianism have been discussed ad nauseam since the 2016 election season. Dignifying it by trying to engage with it seriously is as counterproductive as trying to debate Pizzagate allegations. The best response to someone describing a project of building a Catholic theocracy in the US is to roll one's eyes at this juvenile attempt at being shocking. That (and pity for the author) is all it deserves.”

I (unsurprisingly) strongly disagree, for three reasons:

A). Unlike anonymous trolls, Vermeule has bravely put his name on what he has written. If one is willing to stake one’s reputation, then one deserves (more of) a response.
B) Unlike Pizzagate allegations that involve obviously groundless factual claims assertable only by someone who is either emotionally / cognitively disordered or simply writing in bad faith, Vermeule’s theory of integralism as a source of “common good” is not only well-written and internally coherent but also logically defensible and sincerely held. True, it is inconsistent with many people’s strongly held values, but that is a far cry from the stuff uttered by, say, Alex Jones.
C). Vermeule has reasons to play his cards close to his chest if he believes that he will be subject to furious invective. If he were simply engaging in tiresome irony with serious topics, then I might roll my eyes and move on. He apparently believes, however, that he lives in a time in which the suggestion of a position at odds with liberal consensus could inspire intense hostility from people unwilling to give him any sort of hearing. When breaching these sorts of taboos, it is natural to be cagey. Leo Strauss’ work on writing during times of tyranny comes to mind as a justification for “esoteric” caginess. Vermeule may believe that he lives in a time of tyranny in which his ideas will receive such a hostile reception as to endanger his livelihood, reputation, etc. So he is entitled to write in a way that is accessible only to those who are willing to engage with him in good faith.

What if we *are* willing to engage his admittedly radical departure from consensus norms in good faith? Is he expressing contempt for us by adhering to an “ironically guarded” style? Maybe not. Maybe he’s being compassionate, at least by his own lights. In the immortal words of Jack Nicholson’s character from “A Few Good Men,” he may believe that modern liberals are so blinded by the hegemony of liberal value neutrality and so fearful of taboo topics that they “can’t handle the truth” as he sees it.

In short, Vermeule is entitled to be discrete, but I think it is worthwhile to engage with him in good faith to see what he thinks and why.

Posted by: Rick Hills | Apr 6, 2020 11:21:17 AM

The "the coy connotations of the diction" constitute trolling, no less than that of the 4chan/8chan crowd. The same principle applies to Vermeule that applies to internet "edgelords" generally -- don't feed the trolls.
The politics of this style of "edgy" flirtation with authoritarianism have been discussed ad nauseam since the 2016 election season. Dignifying it by trying to engage with it seriously is as counterproductive as trying to debate Pizzagate allegations. The best response to someone describing a project of building a Catholic theocracy in the US is to roll one's eyes at this juvenile attempt at being shocking. That (and pity for the author) is all it deserves.

Posted by: Edgelords of HLS | Apr 6, 2020 10:42:12 AM

Given that Vermeule defended the Mortara kidnapping on Twitter, one suspects that what would happen to Jews would in fact be quite bad (at least from the perspective of Jews).

Posted by: JHW | Apr 6, 2020 10:40:13 AM

Wonderful post, thank you. I suspect even if you do ask, though, he won't tell.

One edit-- I think there's a missing word here:

"Does he support the Polish Law & Justice Party’s about Poles’ lynching massive numbers of Jews following World War II?"

Posted by: Lucretian | Apr 6, 2020 10:14:15 AM

Interesting and timely piece. Vermeule has in fact addressed the "Jewish question" in his writings before (see here https://thejosias.com/2018/07/19/according-to-truth/):

"The most interesting conversation I’ve had lately in an academic setting was with a colleague—a man of the left who thinks of himself as 'secular,' but who is in fact animated by a vibrant faith in the progress of history—who asked me to lunch and pressed the question 'in a fully Catholic polity, the sort you would like to bring about, what would happen to me, a Jew'? (Nothing bad, I assured him). This was no second-order discussion of 'political liberty' or 'rights' or 'overlapping consensus.' This was a passionate concrete question about the fate of an individual, a people, and the shape that a polity might take, all inseparably linked. It was, at last, after all the academic workshops on 'procedural justice' and 'tolerance,' a genuinely political conversation."

Of course, his "nothing bad" leaves open the question of who will make that assessment, Vermeule or his colleague. I suspect Vermeule.

Posted by: DB | Apr 5, 2020 10:24:58 PM

Interesting, indeed creates the impression of excessive abstractions, yet, one issue raised by him, merits a closer observation, and raises indeed, a practical and actual or modern issue:

And it is the connection, between, changes in policy, in light of very intensive social changes and alike. I quote:

" The rate of change in the policy environment, especially in the economy, is so much greater than in the late 18th century that optimal institutional arrangements must allow for greater speed and flexibility of policy adjustment by officials. That, of course, is one of the main reasons we have such a large bureaucracy in the first place. "

And finally:

The price of speed and flexibility of adjustment is administrative discretion, and administrative discretion creates increased scope for the abuse of discretion – despite the attempt to check such abuses with review under the Administrative Procedure Act for abuse of discretion, itself a costly and imperfect oversight mechanism.

End of quotation:

Yet, there are solutions for it. In the federal sphere, courts or legislator, must modify the meaning of " controversy " and develop a doctrine of " Public petitioner ". So, one party, wouldn't need to show and prove that he bears concrete and particularized injury in order to have standing. But, let NGOs for example, petition in the name of the public, or, in the name of public trust, or rule of law, and challenge intensively, the government and its actions and policies. They can fund it, they are well designed for it.So, the constitution in this regard, wouldn't have to be modified, maximum,the administrative laws.

Thanks

Posted by: El roam | Apr 5, 2020 8:56:25 PM

My biggest problem with his essay, by quite a long shot, is that it tarnishes his fine and almost entirely correct work on admin, and makes it harder to cite in some quarters. I don't see much danger of its actually influencing anyone in the direction it intends (whatever direction that is).

Posted by: Asher Steinberg | Apr 5, 2020 8:42:26 PM

Post a comment