Contributor Post Created with Sketch. Recommended by Ricochet Members Created with Sketch. Vermeule’s Gleeful Illiberal Legalism

 

Few have been brave enough to flesh out what the Ahmarist, or “anti-Frenchist,” vision of the common good should be. Some have said articulating specifics is beside the point, that Ahmarists’ refreshing achievement is unapologetically asserting a common good exists, even if they decline to say what, exactly, it is. And then, there are guys like Adrian Vermeule, writing in The Atlantic, brave enough, at least, to flesh out a vision of sorts. Vermeule calls it “common-good constitutionalism”, which he describes as “an illiberal legalism that is not ‘conservative’ at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.” When Vermeule writes,

[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, [emphasis added] 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…

it’s hard not to think of abusive priests who talk their victims – and perhaps even themselves – into believing victims should thank their abusers for lessons in authentic desire.

We should suffer from a horror of political domination. A hierarchy that doesn’t is ripe for abuse. No mere mortals are cut out to be perfect parents, even to flesh of their flesh, much less to subjects mostly strangers to them.

***

Mothers aren’t supposed to mention this, and conservatives, who regularly defend the good of punishment, aren’t supposed to admit this, but not all our instincts to punish children are wholesome ones.

Ideally, punishment is for discipline, and only for discipline. Discipline does not regard the punished as objects, but uses punishment to goad immature subjects into habits of maturity. When we punch a hole in a wall, or snap a vacuum cleaner wand clean in half (and I’ve done both since becoming a mom), the objects we break learn nothing. They merely serve as outlets for our frustration. Our children are people, not outlets. And yet… I’ve lost count of the times my frustration, not my childrens’ need for discipline, has sparked my instinct for punishment. I strive to control this spark, of course – not to avoid disciplining my children, but to ensure I give them discipline and not abuse. Still, I never would have guessed, before becoming a parent, how hard controlling it would be.

An all-good, all-loving God may wield parental authority that’s wholly benign, but parental authority in the hands of fallible mortals is not. It has a dark side, a side not to be trusted around too much power.

***

Susannah Black at Mere Orthodoxy defends Vermeule by qualifying,

[O]f course a false “common good” may be used as a rhetorical tool to support the abuse of individuals, their coercion for the good of some other person or group. But the true common good simply never can.

To which we may as well add that no true Scotsman ever does whatever it is that no true Scotsmen do.

Black elaborates,

There is in reality no competition between individual good and the good of the community: we are members of each other in reality… seeking to care for each person while, and by, caring for the community… This cuts, entirely, both ways: it is not good for a community if any member of it should be abused, unjustly ruled, exploited.

I believe in the Christian apocalyptic vision. I await a time-out-of-time when Christ will rule, and, with all subject to Him, be All in All. Contrary to COVID-19 headlines, though, the apocalypse is not now. Now we see in a mirror dimly. We do not see face to face. We do not see the true common good – and it’s arrogance to think we can.

We’re not wholly blind to true common good, of course. Still, we lack enough vision to be entrusted with great power over our fellow mortals. In Christ, who personifies reality, we are all members of each other and there is no competition between individual and community good. In worship, we come together for a foretaste of this reconciliation, as members of each other, without conflict. But political power isn’t worship, regimes aren’t the Messiah, and it’s reasonable to fear rulers – or would-be kingmakers – who seem to presume otherwise.

***

Matt McManus divides libertarians into two types, egalitarian and hierarchical. That is, McManus observes some people are libertarian because they believe people aren’t morally unequal enough to justify one dominating another, while others are libertarian because they believe people are morally unequal, and freedom (particularly economic freedom) gives the superior liberty to dominate. The latter respect autonomy so that the autonomy of the strong may flourish, untrammeled. The former respect autonomy even – perhaps especially – in the weak. The latter needn’t have a horror of domination. The former absolutely must. I am among the former, what Black would apparently call a “right liberal”.

Black contends that liberals, on the right or left, have “give[n] up on any non-liberal vision of government, any good communitarianism.” In this formulation, Black equates communitarianism with illiberalism, which puzzles me, since Black herself asserts, “There is in reality no competition between individual good and the good of the community.” If there is, in reality, no competition, then why would it be necessary to embrace illiberalism to achieve communitarianism? Why should it be impossible to respect both others’ individual autonomy and the bonds they share with their community? (Is it even possible to respect another’s autonomy if you have no respect for the bonds he shares with his community? Those bonds, after all, are his. They are not yours to dominate.)

That said, no inherent competition between individual and community good is necessary for fallible humans to treat them as rival goods. It’s obviously quite tempting for “let’s not scandalize the community” to become the excuse we use to ignore wrongs done to individuals within it. These wrongs may ultimately hurt the community, too, but there is a great deal of ruin in a community. Communities can spend a long time rotting from the inside out as abuse goes ignored in order to keep up appearances.

For this reason, Vermeule’s insouciant assertions that “strong rule in the interest of attaining the common good is entirely legitimate” and a common-good constitutionalism should not

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

are horrifying, not because we must judge the goodness of government solely by whether it minimizes abuse of its powers, but because they give rhetorical cover to strongmen who have no qualms about abusing power for the sake of a so-called “common good”.

Black, who intends to defend Vermeule, at least partially, against his critics by pleading,

One can disagree with Vermeule on other bases [than his favoring strong government]. Feel free to do so: on the basis of the belief there should be no coercion in religion, for example, as a substantive principle.

only adds to the horror, since such a plea admits Vermeule is perfectly fine with coercion which successfully masquerades as the one true faith.

***

Vermeule’s framing of common-good constitutionalism is not repugnant because it touts, in Black’s words, “The good of energy in the executive, of a wise ruler, and of well-exercised authority,” but because it delights in dismissing concerns that abuse of power is a problem, when all of human experience, from the great arcs of history, the meta-narrative of Christian salvation, down to the pettiest instincts flaring in our own hearts, tells us that it is.

I admire and respect a great many souls who oppose libertarianism or “right liberalism” in various ways. Many of them are fellow Christians, whose opposition comes from their Christian convictions. Some fear the social-justice left most of all. Some fear that economic-liberty advocacy is deluded to believe it advocates any sort of liberty at all, rather than just the tyranny of Mammon. What all these souls have in common, though, is genuine horror at abuse of power. I may worry, for example, that a guy like Rod Dreher is too naive about authoritarian impulses on the illiberal right, but I have no doubt Dreher is a soul viscerally horrified by abuse of power – and that matters. Vermeule? Not so much. For all I know, Vermeule may not delight in abuses of power himself, but he won’t go out of his way to remind the powerful that they shouldn’t.

Published in General
This post was promoted to the Main Feed by a Ricochet Editor at the recommendation of Ricochet members. Like this post? Want to comment? Join Ricochet’s community of conservatives and be part of the conversation. Get your first month free.

There are 146 comments.

Become a member to join the conversation. Or sign in if you're already a member.
  1. Jerry Giordano (Arizona Patrio… Member

    Midge, this is a fascinating post, and it’s nice to think about something other than the current pandemic.

    I don’t think that I agree with your assessment, which (I think) suggests that Vermeule is completely unconcerned about the dangers of abuse of power. My impression is that the libertarian tendency is to over-emphasize the dangers of the abuse of power. Moreover, Vermeule’s article is principally about methods of Constitutional interpretation, so I deduce that his main concern is the tendency of courts to act as a check on legislative or executive power in a way that, itself, sometimes strikes me as an abuse of judicial power.

    Elections are a significant check on the abuse of legislative or executive power. They are not perfect, but neither is reliance on the judiciary.

    My initial impression is that I disagree with Vermeule’s proposition that a new form of Constitutional interpretation is needed — he calls it “common-good constitutionalism,” as you note — to replace “originalism.” I think that the policy goals that Vermeule seems to advocate are consistent with originalism.

    I don’t think that we need to abandon originalism to permit the types of policies that Vermeule seems to favor, such as pro-family, pro-life, pro-community, pro-faith, and anti-obscenity policies. The precedents to which he objects are anti-originalist, in my view, and are relatively recent innovations (mostly from the 1950s through the present). His key paragraph seems to be:

    This is not the occasion to offer a bill of particulars about how constitutional law might change under this approach, but a few broad strokes can be sketched. The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.

    I agree with his criticisms in these areas, and I think that originalism would dictate the these recent precedents should be overturned. The reference to “[l]ibertarian conceptions of property rights and economic rights” is difficult to understand, as there are relatively few jurisprudential limitations on such regulation (except as to “takings,” which is an originalist notion).

    I very much support Vermeule’s position that it is perfectly legitimate to legislate morality.

     

    • #1
    • April 2, 2020, at 11:01 AM PDT
    • 5 likes
  2. Larry3435 Member

    I would offer this Vermeule fellow a variation on Rawls’s “veil of ignorance” idea. Vermeule can decide how much power the leader gets to control, so long as someone else, some random person, gets to choose the leader. I’m guessing that all of a sudden Vermeule would start to get very pale. The benefits of tyranny only seem attractive so long as you assume that you get to be the tyrant. If the tyrant is someone with whom you disagree – not so much.

    • #2
    • April 2, 2020, at 11:01 AM PDT
    • 12 likes
  3. Gary McVey Contributor
    Gary McVeyJoined in the first year of Ricochet Ricochet Charter Member

    A very thoughtful post, and a real contribution to what might be called Ricochet’s extended debate about aspects of Sohrab Ahmari’s writing, in this case at one remove. Thanks, Midge!

    • #3
    • April 2, 2020, at 11:06 AM PDT
    • 6 likes
  4. Jerry Giordano (Arizona Patrio… Member

    Midget Faded Rattlesnake:

    Mothers aren’t supposed to mention this, and conservatives, who regularly defend the good of punishment, aren’t supposed to admit this, but not all our instincts to punish children are wholesome ones. 

    Ideally, punishment is for discipline, and only for discipline. Discipline does not regard the punished as objects, but uses punishment to goad immature subjects into habits of maturity. When we punch a hole in a wall, or snap a vacuum cleaner wand clean in half (and I’ve done both since becoming a mom), the objects we break learn nothing. They merely serve as outlets for our frustration. Our children are people, not outlets. And yet… I’ve lost count of the times my frustration, not my childrens’ need for discipline, has sparked my instinct for punishment. I strive to control this spark, of course – not to avoid disciplining my children, but to ensure I give them discipline and not abuse. Still, I never would have guessed, before becoming a parent, how hard controlling it would be. 

    An all-good, all-loving God may wield parental authority that’s wholly benign, but parental authority in the hands of fallible mortals is not. It has a dark side, a side not to be trusted around too much power.

    I think that I disagree with this part of the OP, though it depends on what you mean by “discipline.” I do agree with the first part and the last, as it is true that punishment is another occasion for the possible abuse of power. But I do not think that this means that punishment is prohibited, but rather that we must be cautious.

    My main objection is that it appears, to me, that you use “discipline” to mean that the purpose of sanction must be deterrence and reformation, not punishment (or revenge). I may be misinterpreting what you mean.

    C.S. Lewis argued the point better than I ever could, in his essay on The Humanitarian Theory of Punishment. The key quote is somewhat lengthy, and will require another comment.

    [Cont’d]

     

    • #4
    • April 2, 2020, at 11:22 AM PDT
    • 3 likes
  5. Jerry Giordano (Arizona Patrio… Member

    From C.S. Lewis (here):

    According to the Humanitarian theory, to punish a man because he deserves it, and as much as he deserves, is mere revenge, and, therefore, barbarous and immoral. It is maintained that the only legitimate motives for punishing are the desire to deter others by example or to mend the criminal. When this theory is combined, as frequently happens, with the belief that all crime is more or less pathological, the idea of mending tails off into that of healing or curing and punishment becomes therapeutic. Thus it appears at first sight that we have passed from the harsh and self-righteous notion of giving the wicked their deserts to the charitable and enlightened one of tending the psychologically sick. What could be more amiable? One little point which is taken for granted in this theory needs, however, to be made explicit. The things done to the criminal, even if they are called cures, will be just as compulsory as they were in the old days when we called them punishments. If a tendency to steal, can be cured by psychotherapy, the thief will no doubt be forced to undergo the treatment. Otherwise, society cannot continue.

    My contention is that this doctrine, merciful though it appears, really means that each one of us, from the moment he breaks the law, is deprived of the rights of a human being.

    The reason is this. The Humanitarian theory removes from Punishment the concept of Desert. But the concept of Desert is the only connecting link between punishment and justice. It is only as deserved or undeserved that a sentence can be just or unjust. I do not here contend that the question “Is it deserved?” is the only one we can reasonably ask about a punishment. We may very properly ask whether it is likely to deter others and to reform the criminal. But neither of these two last questions is a question about justice. There is no sense in talking about a “just deterrent” or a “just cure”. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds. Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a “case”.

    Lewis then explains other problems with this theory. The whole article is worth reading.

    Lewis concludes:

    This is why I think it essential to oppose the Humanitarian theory of punishment, root and branch, wherever we encounter it. It carries on its front a semblance of mercy which is wholly false. That is how it can deceive men of good will.

    I think that Lewis is quite correct about all of this.

     

    • #5
    • April 2, 2020, at 11:22 AM PDT
    • 4 likes
  6. SkipSul Coolidge
    SkipSulJoined in the first year of Ricochet Ricochet Charter Member

    Gary McVey (View Comment):

    A very thoughtful post, and a real contribution to what might be called Ricochet’s extended debate about aspects of Sohrab Ahmari’s writing, in this case at one remove. Thanks, Midge!

    The whole Ahamri / French debate has been an interesting one for me because I ultimately think they’re both wrong. I mean, they both make good points, but they both make some massive errors because they each read like the proverbial blind men trying to grope out an elephant – they’re trying each to make their narrow preconceptions and models of law, justice, and society fit onto partial sets of facts that simply do not match reality.

    Ahamri and Vermeule are not wrong to observe that modern conservatism has thoroughly boxed itself in with Originalism and too-keen an emphasis on individual rights, to the point where (as is often the libertarian temptation) it cannot advance arguments where societal concerns override the individual ones. To borrow Ahmari’s favorite whipping-boy-thing, if Originalist arguments cannot stop drag-queen story hours for kids in libraries on even obscenity grounds, then what use are they? They become like global warming computer models that consistently show disaster in the future, but cannot accurately even model the past.

    But Ahmari and Vermeule by the same token are guilty of a sort of cargo-cultism where they imagine that a vigorous authoritarianism might forcibly reorder things back towards their right end without also utterly destroying the system. Sulla tried that one. Pinochet might be the only contemporary model of that concept, taken to its logical end, where you could argue it worked, but it worked only with a brutality we should all fear, and it took Pinochet also resigning from power when he deemed his work done, and there’s no guarantee that would ever happen here.

    • #6
    • April 2, 2020, at 11:46 AM PDT
    • 7 likes
  7. Stina Member

    SkipSul (View Comment):
    But Ahmari and Vermeule by the same token are guilty of a sort of cargo-cultism where they imagine that a vigorous authoritarianism might forcibly reorder things back towards their right end without also utterly destroying the system.

    Could it be that your perception of their arguments is largely colored by the existence of the massive central state and they are making an argument independent of that large central state?

    I read their arguments and don’t see authoritarianism on a large order, perhaps because I am looking at their arguments in terms of nations, which are much smaller than our central government.

    The libertarian right, characterized by French, devolves liberal politics to the lowest common denominator – the individual. But politics at the individual level is Anarchy, which isn’t at all conservative and something that is being argued, from many different angles, as being ineffectual at best and enabling of the worst impulses in man at the very worst. Their impulse that I would agree with is that the central state should have little to say on these matters. The problem I have with it is that they think no level of government should.

    I read Ahmari and think there’s another level in existence… and where ever that level exists, where the majority can not be in agreement, control devolves to the lower level, ultimately resting with the individual. The higher order the collective, the less control it should have. For instance, individuals and families have the most control over their choices. The local governance (in Originalist structure of our country, the state) should have more control over their citizenry than the federal government.

    That means local communities define for themselves their values, their rules, what they wish to preserve. It could mean one community is very puritanical and another is more libertarian. But it’s a lot easier to leave a community than an entire country.

    I could be wrong that this is the place they are coming from. I don’t know. But I keep applying these “nationalist” ideas to church communities and the rules outlined by Paul in 1 Corinthians on the governance of a church body strongly reflect these ideas of nationalist communities. In other words, the church is a nation inside another nation. If our churches can make that work, then why not cities, towns, or states?

    • #7
    • April 2, 2020, at 12:17 PM PDT
    • 3 likes
  8. SkipSul Coolidge
    SkipSulJoined in the first year of Ricochet Ricochet Charter Member

    Stina (View Comment):
    Could it be that your perception of their arguments is largely colored by the existence of the massive central state and they are making an argument independent of that large central state?

    With Ahmari I’ll try to illustrate my objection with something he himself brought up: the return of the blue laws (forbidding most work on Sundays). He specifically argues that re-implementing these laws would somehow be a step in the right direction, and this is why I say he engages in a degree of cargo-cultism.

    Cargo-cultism (for those who don’t know the term) is a reference to certain South-Pacific island tribes who, during WWII, observed US forces occupying an area, clearing a jungle, building an airstrip and then flying planes in and out with cargo. The natives had no idea how any of this worked, but they did observe all the rituals: uniforms, hand waving, control towers. Years after the war, anthropologists found these natives trying gallantly maintain these airfields and summon the cargo they all remembered. They had the causation all out of order.

    There are only two ways that blue laws could return: imposed from above (authoritarian), or demanded by the people. He advocates the former, but it was the latter who made those laws in the first place, and who later demanded their removal. For Ahmari to get to the ends he wants (a more moral and just society) he seems only able to see it being imposed – it does not occur to him that it might be possible to rally people from the ground up and set about reforming things themselves.

    • #8
    • April 2, 2020, at 12:28 PM PDT
    • 8 likes
  9. SkipSul Coolidge
    SkipSulJoined in the first year of Ricochet Ricochet Charter Member

    Stina (View Comment):

    I read Ahmari and think there’s another level in existence… and where ever that level exists, where the majority can not be in agreement, control devolves to the lower level, ultimately resting with the individual. The higher order the collective, the less control it should have. For instance, individuals and families have the most control over their choices. The local governance (in Originalist structure of our country, the state) should have more control over their citizenry than the federal government.

    That means local communities define for themselves their values, their rules, what they wish to preserve. It could mean one community is very puritanical and another is more libertarian. But it’s a lot easier to leave a community than an entire country.

    I could be wrong that this is the place they are coming from. I don’t know. But I keep applying these “nationalist” ideas to church communities and the rules outlined by Paul in 1 Corinthians on the governance of a church body strongly reflect these ideas of nationalist communities. In other words, the church is a nation inside another nation. If our churches can make that work, then why not cities, towns, or states?

    This is a generous reading. But I also think you have thought these things through far more thoroughly than Ahmari seems to have done. And that’s really the rub with Ahmari – he’s awfully vague, but filled with emotion.

    • #9
    • April 2, 2020, at 12:31 PM PDT
    • 4 likes
  10. Jerry Giordano (Arizona Patrio… Member

    SkipSul (View Comment):
    But Ahmari and Vermeule by the same token are guilty of a sort of cargo-cultism where they imagine that a vigorous authoritarianism might forcibly reorder things back towards their right end without also utterly destroying the system. Sulla tried that one. Pinochet might be the only contemporary model of that concept, taken to its logical end, where you could argue it worked, but it worked only with a brutality we should all fear, and it took Pinochet also resigning from power when he deemed his work done, and there’s no guarantee that would ever happen here.

    I don’t think that Ahmari or Vermeule are advocating anything that could be properly characterized as “authoritarianism,” much less “vigorous authoritarianism.”

    I confess that I have not read everything that they have written, so I may be wrong about this, but it seems unlikely. They seem to be advocating a sensible social conservatism, and pointing out that “Frenchism” seems destined to fail because it adopts the rhetoric and world-view of the opposition. French is not alone in this — many conservatarians seem to take the same position, including Jonah Goldberg, who sometimes expresses an excessive emphasis on liberty, in my estimation.

    I recommend against the use of the term “authoritarian.” This is to accept the framing of the radical Left, as exemplified by Skip’s comment, which seems to equate the idea of reasonable, democratically-supported limitations on things like abortion or pornography as equivalent to the abuses of a Sulla or a Pinochet.

    I think that this is a serious rhetorical mistake. The radical Left — and radical Libertarians, too — want to conceptualize the choice as between liberty and oppression, so they adopt an axis of “authoritarianism” to “libertarianism.” I might rhetorically categorize the same axis as the difference between “chaos,” on the one hand, and either “law” or “order,” on the other.

    I find the order-liberty debate to be a question of balance in seeking something like an Aristotelian golden mean. This differs from the good-evil axis.

    Thus, I recommend against using the term “authoritarian.”

    • #10
    • April 2, 2020, at 1:00 PM PDT
    • 1 like
  11. SkipSul Coolidge
    SkipSulJoined in the first year of Ricochet Ricochet Charter Member

    Jerry Giordano (Arizona Patrio… (View Comment):
    I confess that I have not read everything that they have written, so I may be wrong about this, but it seems unlikely. They seem to be advocating a sensible social conservatism, and pointing out that “Frenchism” seems destined to fail because it adopts the rhetoric and world-view of the opposition. French is not alone in this — many conservatarians seem to take the same position, including Jonah Goldberg, who sometimes expresses an excessive emphasis on liberty, in my estimation.

    Like I said above, I don’t think Ahmari has really thought things through beyond some generalities, which opens the field wide to all manner of interpretations. Perhaps he would shrink thoroughly from anything we might consider repressive. Vermeule, however, seems rather more vigorous. In either case, I’m not adopting the rhetoric of opposition when I or others use term authoritarian here – the yearning for a strong executive is unmistakable.

    Like I said above though, I think both “sides” to this are ultimately wrong. As a case in point, a different critique I’ve encountered of the “French” side is related to what you said. It’s not merely that they have somewhat adopted the rhetoric and world view of their opposition, but that they have committed themselves to a sort of “god of the gaps*” perpetual ordered retreat from narrower and narrower grounds, without any ideas or desire to win back lost ground. To use a different analogy, they’re perpetual George McClellans. Mind you, I don’t that’s entirely fair, but I also don’t think it’s entirely false either – French and company have chosen a very narrow battlefield.

    *God of the gaps is a critique leveled at many deists who will posit the existence of a deity by of citing various things science cannot explain (gaps in our corpus of knowledge), who then have to later retreat from those citations to ever narrower grounds as science fills in those gaps.

    • #11
    • April 2, 2020, at 1:22 PM PDT
    • 3 likes
  12. Jerry Giordano (Arizona Patrio… Member

    Skip, I don’t see anything “authoritarian” about a strong executive. If the strong executive is a dictator, that would be authoritarian. If the strong executive is an elected President enforcing laws passed by an elected Congress, I don’t think that it is authoritarian at all. I don’t think that either Ahmari or Vermeule is advocating a dictatorship.

    I think that you’re probably right about Ahmari not having thought everything through, but I think that he makes good points. He is quite young (at least to me).

    I think that you’re right about Ahmari’s main point, too — that the Frenchians are like McClellan. Great analogy. We seem to agree that he’s right about this.

    • #12
    • April 2, 2020, at 1:49 PM PDT
    • 1 like
  13. Jerry Giordano (Arizona Patrio… Member

    There’s a response to Vermeule’s article today at National Review, by Dan McLaughlin (here). I think that his points are generally good, though I think that it would be better if he emphasized the fact that an originalist approach would serve Vermeule’s goals as well as his alternative, without the negative consequence of the abandonment of our Constitutional moorings. I guess that’s to say that I think that McLaughlin should agree with my comment #1 above. Which he should. You should, too. :)

    I object to one part of McLaughlin’s article in which he writes: “And in a final irony, given Vermeule’s desire to effect something like a traditional-Catholic theocracy, it would promote a distinctly un-Catholic approach to tradition, legitimacy, and rules.”

    Man, that’s just pure Frenchism. Advocate reasonable socially conservative positions — pro-family, pro-life, pro-traditional morality — and you’re accused of wanting to impose a “theocracy.”

    I find this quite reprehensible in McLaughlin. I find nothing in Vermeule’s article that suggests any sort of dictatorship. He principally seems to advocate the overturning of dreadful, non-originalist SCOTUS decisions in areas of concern to traditional social conservatives.

    As I said, the rest of McLaughlin’s article is pretty good.

    • #13
    • April 2, 2020, at 2:01 PM PDT
    • 1 like
  14. Nick H Coolidge

    This is a great look at one of the things that confused me about that Vermeule article. He claimed that the left is obsessed with individual autonomy. I look at the progressive agenda and don’t see that at all. They are certainly more tolerant of individual libertine behavior, but they have little to no commitment to individual liberty. As you rightly point out, it’s the libertarians that are focused on autonomy, albeit in different ways. I especially liked the framing of it in terms of how people view moral inequality. Very insightful. 

    • #14
    • April 2, 2020, at 2:20 PM PDT
    • 3 likes
  15. Midget Faded Rattlesnake Contributor

    Jerry Giordano (Arizona Patrio… (View Comment):
    I don’t think that I agree with your assessment, which (I think) suggests that Vermeule is completely unconcerned about the dangers of abuse of power. My impression is that the libertarian tendency is to over-emphasize the dangers of the abuse of power.

    I agree with you that Vermeule the man may not be completely unconcerned about the dangers of abusing power. Vermeule-the-writer-who-wrote-this-essay-in-The-Atlantic-pour-épater-la-bourgeoisie is another story, though: He seems to have made a deliberate choice, as a writer and gadfly, to sprinkle this particular essay with dismissals of what many Atlantic readers undoubtedly believe themselves concerned about: abuse of power. This may have simply been a stylistic choice to garner more attention, rather than sincere dismissal. But it’s still there on the page.

    To be honest, my reply to what Vermeule wrote comes closer to character assassination than I’d like, but then, I decided a man whose decides to write a work so dismissive of the hazards of abuse of power does, at least partly, deserve it – and ought to be able to take it.

    I also agree that one reason to be not-libertarian is out of a belief that libertarians have taken fear of abuse of power too far. Even so, it’s also obvious to me that many non-libertarians (often very much non-libertarians) still have a healthy fear of abuse of power, a fear I’d characterize as a decent Christian fear, even if the conclusion they draw from it is politics quite different from mine.

    Moreover, Vermeule’s article is principally about methods of Constitutional interpretation, so I deduce that his main concern is the tendency of courts to act as a check on legislative or executive power in a way that, itself, sometimes strikes me as an abuse of judicial power.

    Possibly. But nothing he said in the essay precludes judges from being the parental figures who, in their wisdom, get to decide when to check executive or legislative power for the common good.

    • #15
    • April 2, 2020, at 2:29 PM PDT
    • 3 likes
    • This comment has been edited.
  16. Midget Faded Rattlesnake Contributor

    Jerry Giordano (Arizona Patrio… (View Comment):

    Midget Faded Rattlesnake:

    Mothers aren’t supposed to mention this, and conservatives, who regularly defend the good of punishment, aren’t supposed to admit this, but not all our instincts to punish children are wholesome ones.

    Ideally, punishment is for discipline, and only for discipline. Discipline does not regard the punished as objects, but uses punishment to goad immature subjects into habits of maturity. When we punch a hole in a wall, or snap a vacuum cleaner wand clean in half (and I’ve done both since becoming a mom), the objects we break learn nothing. They merely serve as outlets for our frustration. Our children are people, not outlets. And yet… I’ve lost count of the times my frustration, not my childrens’ need for discipline, has sparked my instinct for punishment. I strive to control this spark, of course – not to avoid disciplining my children, but to ensure I give them discipline and not abuse. Still, I never would have guessed, before becoming a parent, how hard controlling it would be.

    An all-good, all-loving God may wield parental authority that’s wholly benign, but parental authority in the hands of fallible mortals is not. It has a dark side, a side not to be trusted around too much power.

    I think that I disagree with this part of the OP, though it depends on what you mean by “discipline.” I do agree with the first part and the last, as it is true that punishment is another occasion for the possible abuse of power. But I do not think that this means that punishment is prohibited, but rather that we must be cautious.

    I certainly agree that punishment is not prohibited! Rather, as you say, we must be cautious.

    My main objection is that it appears, to me, that you use “discipline” to mean that the purpose of sanction must be deterrence and reformation, not punishment (or revenge). I may be misinterpreting what you mean.

    I think it would be ideal if everyone had discipline. It took me longer than was healthy to realize self-discipline ≠ self-punishment, but rather good habits. Wouldn’t it be ideal if everyone developed good habits? We know not all will – and we usually need look no further than our own selves to see that.

    That God has the authority to determine true deserts I do not question:

    “Vengeance is mine, I will repay, says the Lord.”

    That’s embedded in the longer verse:

    Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, “Vengeance is mine, I will repay, says the Lord.”

    Should the state be trusted to carry out something left to the wrath of God, and prohibited to Christians? Or, is it better for secular power to aim for a more modest goal, like deterrence or correction? I’d point out that neither deterrence nor correction must be particularly namby-pamby or “therapeutic”: corporal punishment and fines are not, for example, and their usefulness for deterrence and correction should be obvious.

    If we include incapacitation as a form of deterrence – for example, bodily deterring someone from committing further crime by locking him up – I am not sure why the law should aspire to more than deterrence and correction in order to keep the peace.

    • #16
    • April 2, 2020, at 2:57 PM PDT
    • Like
    • This comment has been edited.
  17. Midget Faded Rattlesnake Contributor

    Nick H (View Comment):

    This is a great look at one of the things that confused me about that Vermeule article. He claimed that the left is obsessed with individual autonomy. I look at the progressive agenda and don’t see that at all. They are certainly more tolerant of individual libertine behavior, but they have little to no commitment to individual liberty. As you rightly point out, it’s the libertarians that are focused on autonomy, albeit in different ways. I especially liked the framing of it in terms of how people view moral inequality. Very insightful.

    That said, I do think libertarian emphasis on the sovereign individual is often misguided, and a better libertarian approach would be more communitarian (and more economic), a more An-Cap-y (doesn’t mean you hafta go full AnCap) emphasis on free association. Now, an association cannot be truly free if the individual has no right of exit from it, but it’s not anti-libertarian (just anti-atomistic) to acknowledge that what we are for and from each other makes up so much of our individual selves.

    What am I as an individual if I am not for and from other individuals? Many economists would say, not much – even if they decide to say it in the least interesting way possible ;-P

    (Not that I think economists do say it uninterestingly, but I may simply be weird for finding economists so riveting I went and married one.)

    • #17
    • April 2, 2020, at 3:14 PM PDT
    • 2 likes
  18. Mark Camp Member

    You guys should have waited for me before starting this discussion.

    Now I will never catch up.

    • #18
    • April 2, 2020, at 3:39 PM PDT
    • 2 likes
  19. Larry3435 Member

    Jerry Giordano (Arizona Patrio… (View Comment):
    I don’t see anything “authoritarian” about a strong executive. If the strong executive is a dictator, that would be authoritarian. If the strong executive is an elected President enforcing laws passed by an elected Congress, I don’t think that it is authoritarian at all.

    I suspect that if the strong executive was Obama (or, even worse, Bernie), and the elected Congress was the Congress of 2009-10, you would suddenly see something very authoritarian about complying with the laws they passed. For example, the law saying that the time you spend in church is a selfish individual indulgence, and for the good of the community you will be required to spend your Sundays instead attending classes on the horrors of global warming. 

    Jerry, you talk about law and order. Everyone likes law and order, so long as they agree with the laws. When they don’t agree with the laws, they start appreciating the virtues of liberty. Everyone who has ever supported replacing individual liberty and autonomy with government (or clerical) control has always assured us that the results will be a great improvement over the status quo. Everyone from Stalin to Torquemada to Rasputin to George III. Somehow it never works out that way.

    • #19
    • April 2, 2020, at 4:30 PM PDT
    • 1 like
  20. Dennis A. Garcia (formerly Gai… Member

    I had a discussion recently with a friend about Vermeule’s article. We both agreed that the word fascist isn’t to be thrown around lightly but honestly struggled to discern any definition which wouldn’t fit Vermeule’s philosophy. Considering the question now, the best answer I can think of is that while Mussolini believed that the church (and every other aspect of society) should be incorporated into the state because the state represents the right, Vermeule believes that they should be integrated because the church is right. In effect though, that is a distinction without a practical difference.

    • #20
    • April 2, 2020, at 5:31 PM PDT
    • 3 likes
    • This comment has been edited.
  21. Richard Fulmer Member

    Midget Faded Rattlesnake: regard the punished as objects, but uses punishment to goad immature subjects into habits of maturity. When we punch a hole in a wall, or snap a vacuum cleaner wand clean in half (and I’ve done both since becoming a mom)

    Clearly, you’ve never discovered the secret to good parenting: Duct tape.

    • #21
    • April 2, 2020, at 5:58 PM PDT
    • 2 likes
  22. Richard Fulmer Member

    Midget Faded Rattlesnake: [O]f course a false “common good” may be used as a rhetorical tool to support the abuse of individuals, their coercion for the good of some other person or group. But the true common good simply never can.

    False socialism may result in the abuse of individuals, their coercion for the good of some other person or group. But true socialism simply never can. Unfortunately, true socialism – as true socialists keep telling us – has never been tried.

    • #22
    • April 2, 2020, at 6:02 PM PDT
    • Like
    • This comment has been edited.
  23. Midget Faded Rattlesnake Contributor

    Richard Fulmer (View Comment):

    Midget Faded Rattlesnake: When we punch a hole in a wall, or snap a vacuum cleaner wand clean in half (and I’ve done both since becoming a mom)

    Clearly, you’ve never discovered the secret to good parenting: Duct tape.

    For the kids… or for me?

    (Yeah, yeah, I know. Why not both?)

    • #23
    • April 2, 2020, at 6:59 PM PDT
    • 1 like
    • This comment has been edited.
  24. Jerry Giordano (Arizona Patrio… Member

    Larry3435 (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):
    I don’t see anything “authoritarian” about a strong executive. If the strong executive is a dictator, that would be authoritarian. If the strong executive is an elected President enforcing laws passed by an elected Congress, I don’t think that it is authoritarian at all.

    I suspect that if the strong executive was Obama (or, even worse, Bernie), and the elected Congress was the Congress of 2009-10, you would suddenly see something very authoritarian about complying with the laws they passed. For example, the law saying that the time you spend in church is a selfish individual indulgence, and for the good of the community you will be required to spend your Sundays instead attending classes on the horrors of global warming.

    Jerry, you talk about law and order. Everyone likes law and order, so long as they agree with the laws. When they don’t agree with the laws, they start appreciating the virtues of liberty. Everyone who has ever supported replacing individual liberty and autonomy with government (or clerical) control has always assured us that the results will be a great improvement over the status quo. Everyone from Stalin to Torquemada to Rasputin to George III. Somehow it never works out that way.

    Larry, thanks for the response.

    No, I would not — and did not — find the laws passed by the 2009-2010 Congress, and signed by President Obama, to be “authoritarian.” They were legitimately elected. I found many of them to be bad policy.

    My view about “bad” laws is more nuanced, because it is possible for a law passed by Congress to be unconstitutional. I evaluate the constitutionality of a law on an originalist basis.

    Your final paragraph is an example of the problem, I think. It smacks of pure anarchism, frankly. I don’t think that you really mean it, unless you are actually opposed to things like speed limits, statutory rape laws, and the like.

    But this is the unfortunate modern tendency. There is an inclination to elevate every policy disagreement into Stalin or the Spanish Inquisition — which you did, quite literally. As if the Blue Laws, or laws against homosexual sodomy, which we had as recently as the 1980s and 1990s, were comparable to the Gulag or burning someone at the stake for heresy. I was alive back then, and it was a pretty great country. Better than it is now in many ways, I think.

    • #24
    • April 2, 2020, at 7:16 PM PDT
    • 2 likes
  25. Jerry Giordano (Arizona Patrio… Member

    Dennis A. Garcia (formerly Gai… (View Comment):

    I had a discussion recently with a friend about Vermeule’s article. We both agreed that the word fascist isn’t to be thrown around lightly but honestly struggled to discern any definition which wouldn’t fit Vermeule’s philosophy. Considering the question now, the best answer I can think of is that while Mussolini believed that the church (and every other aspect of society) should be incorporated into society because the state represents the right, Vermeule believes that they should be integrated because the church is right. In effect though, that is a distinction without a practical difference.

    What article did you read? Where did he advocate a dictatorship?

    I did not like his proposal about a method of constitutional interpretation. But the idea of enforcing community standards of decency and morality isn’t fascism. It is American traditionalism, prior to the radicalism of the Warren Court and the 1960s. I don’t see how it is remotely fascist — unless you think that everything but extreme libertarianism is fascist.

    • #25
    • April 2, 2020, at 7:18 PM PDT
    • 2 likes
  26. Stina Member

    Jerry Giordano (Arizona Patrio… (View Comment):
    I did not like his proposal about a method of constitutional interpretation. But the idea of enforcing community standards of decency and morality isn’t fascism. It is American traditionalism, prior to the radicalism of the Warren Court and the 1960s. I don’t see how it is remotely fascist — unless you think that everything but extreme libertarianism is fascist.

    I think Skip made a good point that the laws were there because they reflected the values of the populace.

    Skip’s point falls short when you take into consideration how the supreme court has run rough shod over the diverse communities in the USA and forced them into a universal “moral” code. That doesn’t accurately reflect the American community anymore than going back to Closed on Sunday does.

    A consequence of the court pushing all states into the same moral code means every state is equally appealing to people who like those results, so they move to those places that were opposed and bring their other proclivities to those states and communities – like drag queen story hour, transgenderism and sex education for Kindergarteners, and a planned parenthood in ever low income community.

    The anti-feds were right that there were not enough brakes on the judiciary. They really have destroyed whatever ability we had to co-exist. No longer are we fighting over control over our own communities, but the entire country.

    That’s balkanization. And we are balkanized over the Supreme Court.

    • #26
    • April 2, 2020, at 7:52 PM PDT
    • 1 like
    • This comment has been edited.
  27. Larry3435 Member

    Jerry Giordano (Arizona Patrio… (View Comment):

    My view about “bad” laws is more nuanced, because it is possible for a law passed by Congress to be unconstitutional. I evaluate the constitutionality of a law on an originalist basis.

    Your final paragraph is an example of the problem, I think. It smacks of pure anarchism, frankly. I don’t think that you really mean it, unless you are actually opposed to things like speed limits, statutory rape laws, and the like.

    I’m really not opposed to those things, Jerry, and I don’t think I’ve said anything that implies otherwise. The whole point of a Constitution is to carve out certain areas where the government is not permitted to infringe on individual rights, no matter what the majority wants. A lot of things are left to the democratic process, but in some things the rights of minorities are protected against the tyranny of the majority. Free speech, for example. Freedom of religion. The right to keep and bear arms. Obama certainly wanted to trample those rights in all kinds of ways, and a lot of the things he did were thrown out by the courts. Even more of them should have been thrown out by the courts, such as Obamacare.

    But this “common-good constitutionalism” does not seem to do that at all. Instead of protecting the rights of minorities, this version of a constitution wants to be parental. It glorifies the nanny state. Please tell me, what would the state be prohibited from doing under “common-good constitutionalism”? It sounds to me like no government action is out of bounds, so long as it is seen as government being a “wise teacher and an inculcator of good habits.” But, of course, people differ on what is wise and what is good. And even if we could maintain the democratic process under such a regime (which I tend to doubt), it would still be a license for 51% of the population to force the other 49% to do whatever the hell they think is wise and good. Without limits. That is no constitution at all.

    Personally, I prefer limited government. Where there is a compelling need for collective action for the common good – sure, government should act. So everyone can legitimately be required to drive on the right side of the road. Or not steal or murder or rape. Sure. But on most things, government should let people make their own choices. Government is not your parent. It is not your mommy or your daddy. And it is not government’s job to inculcate you with whatever thoughts government believes are “wise” for you to think, and whatever habits government thinks are “good” for you to have. I don’t want Obama to be my mommy and my daddy. I don’t even want Trump to be my mommy and my daddy. Nobody is wise enough for that job.

    • #27
    • April 3, 2020, at 3:27 AM PDT
    • 2 likes
  28. Dennis A. Garcia (formerly Gai… Member

    Jerry Giordano (Arizona Patrio… (View Comment):

    Dennis A. Garcia (formerly Gai… (View Comment):

    I had a discussion recently with a friend about Vermeule’s article. We both agreed that the word fascist isn’t to be thrown around lightly but honestly struggled to discern any definition which wouldn’t fit Vermeule’s philosophy. Considering the question now, the best answer I can think of is that while Mussolini believed that the church (and every other aspect of society) should be incorporated into society because the state represents the right, Vermeule believes that they should be integrated because the church is right. In effect though, that is a distinction without a practical difference.

    What article did you read? Where did he advocate a dictatorship?

    I did not like his proposal about a method of constitutional interpretation. But the idea of enforcing community standards of decency and morality isn’t fascism. It is American traditionalism, prior to the radicalism of the Warren Court and the 1960s. I don’t see how it is remotely fascist — unless you think that everything but extreme libertarianism is fascist.

    What article did you read? He advocated an unbound bureaucratic state under an all powerful president and extolled the both as symbols of the nation and as tools for national purification. The mere formality of an election every four years would not rescue such a system from fascism, especially without the expressive and associational freedoms to make those elections free and meaningful.

    I’m familiar with the school of conservative deference to local tyrannical majorities which you describe. Yes, I disagree with it, and no it’s not fascism. It’s also nowhere to be found in Vermuele’s piece.

    To be clear, I think our knee-jerk “it’s not fascist to- ” response is generally a positive. It’s an expression of the civility that we owe each other as Americans that we presume that all of us are arguing in good faith within the parameters of a broadly liberal-democratic system. But here that response is counterproductive. When someone like Vermuele users the term “illiberal” to describe himself and openly calls for reading material into the constitution which is not there in letter or spirit, then that presumption is rebutted. That alone doesn’t make Vermuele a fascist, but it does make the question of whether he’s a fascist an analytical one rather than a question of civility. We know he’s an illiberal seeking to undermine the American system, the only question is what kind of illiberal, because fascism is only one of many.

     

    • #28
    • April 3, 2020, at 3:31 AM PDT
    • 3 likes
  29. Larry3435 Member

    Oh, by the way, I do get weary of being told that I must be an anarchist if I mention that I favor limited government. Limited government does not mean no government. If the government can make a compelling case that I need to stay home to prevent the spread of a pandemic, hey – I’m okay with that. But if government wants to tell me what size soda to drink or what light bulb to use, I draw the line. My mommy had the right to dictate soda to me when I was a kid. But now I’m 64 years old, and I don’t want no stinking nanny state dictating soda habits to me. To quote Mel Gibson, “FREEDOM!”

    • #29
    • April 3, 2020, at 3:40 AM PDT
    • 3 likes
  30. Jerry Giordano (Arizona Patrio… Member

    Larry, I want to respond to your # 27 and 29, but lack the space to quote them.

    I’m sorry if I gave the impression that I was calling you an anarchist. I did not mean to do so. I said that what you wrote “smacks of pure anarchism,” and pointed out that I did not think that you really meant it. What you wrote did smack of anarchism, as you said:

    Larry3435 (View Comment):
    Jerry, you talk about law and order. Everyone likes law and order, so long as they agree with the laws. When they don’t agree with the laws, they start appreciating the virtues of liberty. Everyone who has ever supported replacing individual liberty and autonomy with government (or clerical) control has always assured us that the results will be a great improvement over the status quo. Everyone from Stalin to Torquemada to Rasputin to George III. Somehow it never works out that way.

    There’s no nuance in this statement. I pointed out that there is room for a great deal of regulation — things like traffic and statutory rape laws — and you agreed. But you actually did make a rhetorical argument that anyone who ever sided with government control, over individual liberty, on any issue, is on the side of Stalin and the Spanish Inquisition.

    I’ve been objecting to the tendency to go to extremes in response to Vermeule’s proposal about a new method of constitutional interpretation, which I do not like. I made this clear in comment #1. However, he’s been accused in this thread (not by you) of being “authoritarian” and “fascist.” I do not think that these criticisms are fair.

    I think that your arguments in comment #27 are inconsistent. You started by saying:

    Larry3435 (View Comment):
    A lot of things are left to the democratic process, but in some things the rights of minorities are protected against the tyranny of the majority. Free speech, for example. Freedom of religion. The right to keep and bear arms.

    I completely agree with this. 

    [Cont’d]

     

    • #30
    • April 3, 2020, at 7:49 AM PDT
    • 1 like