Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
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 is a good point. I think arguments can be made that not every custom whereby the rules politely say one thing, but really mean another, is bad custom. Indeed, if this was custom at the time of the Founding, then originalists could make the argument. I wouldn’t want to, because whatever good comes from customs like that, it’s also really confusing, even fraudulent, for laws to say one thing but mean another.
To Vermeule’s credit, as a good Catholic, he may be game for enforcing laws against any sex act excluding the possibility of procreation, even among married heterosexual couples.
Aside from the pushback on the criticisms in the OP, I think Vermeule gets much wrong in his essay.
His assessment of the current political and legal landscape seems incorrect to me. He says that “One often hears the catchphrase ‘We are all originalists now.'” I’m no professor of constitutional law at Harvard so maybe Ivy League academia is chock a block with originalism, but I honestly have never heard that catchphrase and I don’t see how it’s true in any sense, even some narrow one.
I also disagree with his other major assessment that
I think he’s conflating a specific tool for use by one function of government (originalism as used by the judiciary to interpret whether particular law is legitimate according to the organizing charter) with the proper, just, and legitimate aims of government as a whole to begin with.
Originalism, as I understand it, is neutral to the fundamental question of what constitutes “just” and “legitimate” except insofar as it takes the legitimacy of the charter by which it operates as a given. From there, originalism is a pushback against a few illiberal (sometimes masquerading as liberal) ideas. 1) that the meaning by which law was passed can change without any words or intervening language changing, and 2) that courts are deciding on the worth, value, or morality of a matter before them instead of deciding what the governing charter allows, what a legitimate law allows. Originalism doesn’t argue that justice according to the founders is always and forever correct and must always and forever be guarded and enforced, instead it argues that it’s unjust to change law without actually changing the law via the legitimate processes established in the organizing charter.
Better to exercise restraint and exercise that power only when necessary to prevent immediate dissolution of the commonwealth. The default position should be restraint.
It seems to me that Vermeule’s problem isn’t really with originalism. Rather his problem is with antifederalism, antisubsidiarity, and the interpretation that the Constitution applies universally to government at all levels in relations to individuals instead of applying to the federal government in it’s relationship to the several states.
And it’s shocking how such a person seems to get it so mixed up. It might be interesting to hear how Vermeule would respond to some of this. I’m probably missing something. Or at least I hope I am. Then again, my skepticism of elitism isn’t without plenty of cause.
Sure, maybe. I’m not really sure what you mean by restraint.
The President is authorized to conduct foreign affairs. Should he exercise that legitimate duty fully and justly? I think he should. Are you saying that that duty should be restrained? Or are you using restraint more like a synonym for prudence?
Which goes farther to oppose morality laws than there’s any reason to infer a “Frenchist” would. I just mentioned in another comment,
French seems to have gotten a lot of grief, as a flesh-and-blood litigator for liberty – especially religious liberty – for working with the living tradition of Constitutionalism we actually have, rather than the one we may have had 200 years ago, or that originalists might wish we had. Originalists aren’t wrong for wishing. It’s just that, to see a wish become reality often takes long, grinding, incremental work.
Work which a guy like French, whatever his other shortcomings, has actually done.
A living tradition isn’t always true to its source. It may drift over time, and working within it means working with what you’ve got. Nothing says you can’t work with what you’ve got to restore it to a earlier form – it’s only reasonable for those working within a tradition to do that, as needed. But a complete break from where a tradition is now in hopes of restoring a probably-mythic past “tradition” is not working within living tradition. It’s breaking from it.
Oddly enough for French, the other living tradition he’s known for participating in, Evangelical Christianity, is a tradition that broke pretty radically from earlier Christian tradition in hopes of restoring a more original, authentic Christianity. And, as more liturgical Christians would argue, that break permitted a literal-minded modernism to sneak into Evangelicalism, much more alien to the spirit of the Early Church than many Evangelicals could recognize. That said, whatever break Evangelicalism took from Christianity’s living tradition at one point, Evangelicalism is now a living tradition in its own right, and the Frenches have actively participated in it – especially, it seems, in youth mentorship, which, again, is doing something to pass on wholesome Christian morals to the next generation.
The cardinal sin of “Frenchists” seems to be that they are hard at work using salami tactics (both on legal and cultural fronts, like litigating for religious liberty and mentoring youth) to make the public square safe for religion and morality again. Arguments can be had over whether salami tactics are the best we can do – evidently Vermeule et al think they’re not. But complaints that “Frenchists” aren’t even trying are pretty risible.
I’m not sure what you mean here. I don’t think Catholic doctrine says anything about politically enforcing sexual morality according to Church dogma.
I don’t think anyone wants to relitigate SSM here, but it was always one of my fundamental arguments that religion had nothing to do with it for me. I argued a lot about public purpose for marriage as a legal institution to exist at all, and it had very much to do with benefits to society and nothing at all to do with God or Jesus. I suppose Common Good would have been an applicable and useful term in that conversation too.
The anti-sodomy laws were borne from religious conviction, not anti-gay animus.
The cultural belief at the time being that Biblical morality is beneficial to civilization. I can’t imagine why they’d think that.
I happen to agree with that. I also know that biblical prohibition on sodomy was not aimed at just male relations with men, but that homosexuality was considered an abomination BECAUSE of the prohibition on sodomy as being harmful to the people engaged in it while seeking non-recreational pleasure – after all, one of the core themes of the moral law through out OT and NT (and anti sodomy continues in the NT) is seeking the best for the people around you. Not to mention the recurring recreational theme throughout.
For Larry to insinuate anti gay animus animated the existence of those laws requires him ignoring the cultural stronghold of the various Christian Faiths that existed at the time and shows he is ignorant of what the Bible actually says about sexual morality. It is more likely that the laws were instituted on faith that this was what was best for their societies. Disparate impact is a bad motivation to legislate.
French (and you and Larry) appear to be ignorant of traditional constitutionalism allowing for strong local governments. French wants to work within the confines of the Big Central Government, simply trying to work in that framework to eke out what limited freedom we can squeak out of that system. That’s what this stupid fight is about. The ones opposing French simply have this to say – THAT ISN’T ENOUGH. But when he hears strong government arguments, he applies them to the central government. For good reason, he rejects that. But strong local governments (and a severely neutered central government and judiciary) should be seen as a viable option.
So why don’t you deal with that argument.
I agree that the driver wasn’t anti-gay animus pe se. I also agree that the cultural background in which morality, justice, good, etc are (were) established was a predominantly Christian background. I don’t think I agree that makes laws like antisodomy laws religious in the sense that you don’t have to believe in the tenets of the religion to also believe that sodomy is harmful. Even less so when it came to marriage more generally and broadly.
Agreed
Agreed
I mean letting people run their own lives and settle their own affairs, so long as they can do so without violence, fraud, and intimidation. Not everything requires government intervention.
I wouldn’t say the duty should be restrained, but again, not everything requires government intervention.
Actually Vermeule goes quite in depth on what he means on this. He even links to another of his essays. I think he claims the term illiberal to the extent that he opposes liberty as an end in itself and to the extent that liberalism holds liberty as the main end. I don’t think that is the same as authoritarian or fascist which was also Jerry’s point.
Here is the key summation from the Common Good essay which brings Vermeule’s use of illiberalism into clearer focus allowing us to see that it’s not at all a call for fascism:
Here I think the problem is that Vermeule is conflating different things. He says specifically:
That means that the problem isn’t that we need more state power than envisioned by the founders, it’s that Originalism only takes us to moral assessments in effect at the founding – and those moral assessments might not be correct and we should be free to add, edit, or delete as we see fit now. His error is that Originalism doesn’t stop him from doing that, but certain notions of liberalism do. His real beef is with certain notions of liberalism and not with Originalism.
This is key too. I don’t think any side of this discussion would find anything to argue with here. Except maybe in how this development is viewed: is such an evolution good, bad, or neutral? I think that depends on the type and extent of reforms required to make adequate corrections.
Right, agreed. When I say “just and full use of legitimate power” there is no implication that government should be involved in everything. Only things where it is just and legitimate to be involved in. Where that line is, is the rub. And it’s one that should be drawn as locally as possible.
I’m sorry Ed, but that is exactly a call for fascism. That is, in fact, the very definition of fascism. There are no “inherent norms of good rule,” and the power to “rule well” is just as much the power to rule evilly. Vermeule’s argument in favor of a benevolent dictator goes back a long way in history, and I’m sure that every dictator believes he is benevolent. But one man’s benevolence is another man’s horror, and a self-proclaimed “benevolent” dictator is still a dictator, and still a tyrant, and still a fascist.
And if the moral argument doesn’t convince you, then at least consider the practical argument made quite eloquently by David Boreanz to Nathan Fillion: “You are so going to lose!” If you won’t oppose dictatorship on principle, then at least oppose it because the dictator you are going to get will be Bernie Sanders or AOC or someone even worse. If not immediately, then eventually.
That’s already the case on the trajectory path we have. And I haven’t seen much that David French advocates steering us away from that. Rather, if Bush and Romney are close to his ideal, I think it steers us there pretty directly.
And I’m going to blame the push towards a strong central government as the problem, strongly relating to the control of the courts.
Here’s the definition of fascism: A system of government marked by centralization of authority under a dictator, a capitalist economy subject to stringent governmental controls, violent suppression of the opposition, and typically a policy of belligerent nationalism and racism.
Nowhere in Vermeule’s paragraph is there a call for a dictator benevolent or otherwise. Nowhere is there a call for a non-participatory system. Nowhere is there a call for violent suppression of opposition. Nowhere is there a call for centralization of authority. Nowhere is there a call for stringent government control of capital. Nowhere is there a call for nationalistic belligerence or racism.
The call is for a benevolent dictator. Once you have a dictator, all that other stuff just follows automatically.
If you won’t protect individual autonomy, and you don’t care about the “incoherent goal” of preventing the abuse of power, and you only care about shoveling the guy in charge all the power he needs to “rule well,” then you are calling for a dictator. Period. No way around it. No other way to look at it. The guy who rules on the basis of power alone, with no respect for individual autonomy and no concerns about the abuse of that power – that’s a dictator. By definition.
Repeating it doesn’t make it so. Can you be more explicit about where you see this call for a benevolent dictator.
That’s a lot of IF’s and ONLY’s not actually in evidence in what Vermeule wrote. Seems like you have to add your own spin in order to make your point work.
Begging your pardon ma’am, but that’s just poppycock. Look at Lawrence v. Texas – the Supreme Court case which held these anti-sodomy laws to be unconstitutional. First, Texas had already repealed any laws that made heterosexual sodomy illegal. It applied only to gays. Second, the Texas statute was called the “Homosexual Conduct Law.” Third, amicus briefs filed by the states of Alabama, South Carolina, and Utah (all of which had similar laws) argued that, unlike heterosexual sodomy, homosexual sodomy had “severe physical, emotional, psychological, and spiritual consequences.”
There is no question at all that these laws were based on anti-gay animus. No question. None.
“To Vermeule’s credit, as a good Catholic, he may be game for enforcing laws against any sex act excluding the possibility of procreation, even among married heterosexual couples.”
Yeah. Good luck with that.
Then they were wrong, but that’s not the ORIGIN of the laws.
I think they were wrong to get rid of the heterosexual laws.
It would never get rid of the practice in bedrooms. It would remove the plethora of it outside of the bedroom, including being taught as part of elementary school sex education.
And I’m sorry, Ed. I am all up for relitigating the sexual ethics in this country. So much societal dysfunction is borne out of sexual ethics, I think it is always a fair debate, whether we are too prudish or too licentious.
A gangster who has gained political power may use law to facilitate his crimes.
Otherwise, all law in a particular society is enforcement of its religious and cultural norms. A society that doesn’t legislate morality would be nothing but the fiefdom of a violent tyrant.
Ed, it’s a direct quote of what Vermeule wrote. And you quoted that same passage yourself as your evidence that Vermeule didn’t support fascism. If you think that Vermeule is not saying what he so clearly and unequivocally is saying, then at least tell me what you think he is saying. Because if you put back in the support for individual autonomy and the concern about abuse of power, and if you don’t include the demand for government power limited only by what is needed to rule “well” (presumably by Vermuele’s definition of what rule is “well”), then I can’t see that he would be saying anything at all.