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.

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  1. Ed G. Member
    Ed G.
    @EdG

    Larry3435 (View Comment):

    Ed G. (View Comment):

    Larry3435 (View Comment):
    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,

    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.

    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.

    Larry, nothing in that direct quote actually says what you say it does. I offered a definition of fascism – and Vermeule didn’t say any part of it. Do you prefer a different definition? Ok, offer another and we can discuss it. Otherwise you’re just reading into the quote things that aren’t actually there.

    What do I think he’s saying? I think he’s saying that common good, rather than liberty, is the end of government (not that government is the only institution concerned with it). I also think he’s saying that limiting abuse of power should not be the primary concern of a constitution, but that just use of legitimate power should be the aim of a constitutional system. 

    • #91
  2. Ed G. Member
    Ed G.
    @EdG

    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.

    Dennis, let’s try it out. What definition of fascism do you want to test out first?

    • #92
  3. Stina Inactive
    Stina
    @CM

    Primary purpose does not equal only purpose.

    • #93
  4. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (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.

    Dennis, let’s try it out. What definition of fascism do you want to test out first?

    Given the above I say this with little hope of a productive exchange. But whatever, here goes.

    Fascism is the totalitarianism of the nation. Believe it or not I’m giving Vermeule a certain amount of credit in that I define the term more narrowly than anyone I know and recognize that fascism is the least bad 20th century totalitarianism. Communism is the totalitarianism of the class and Nazism the totalitarianism of the race. Those were eliminationist ideologies. There is no particular group that has no room under fascism within the national family, an observation born out by the greater part of Mussolini’s tenure when he was functionally independent from Hitler. But neither is there any room for freedom.

    By contrast I give Vermeule less credit than mere authoritarians like. Franco or most of our anti-Communist client regimes who discounted the individual but recognized that certain spheres like church and family were conceptually outside the state.

    To convince me otherwise you’d have to show that Vermeule recognizes some limit to state power under the constitution. That  Vermuele may not claim to want to exercise federal authority in certain ways doesn’t cut it; we all have our notions of how we’d behave prior to slipping on the ring of power. Such limits, in our system are found in the constitution and Vermeule’s piece offers not an interpretation but a means for abolishing it. To the extent that he bothers to discuss the document itself, which is minimal, he gives no indication that the president would ever have to consult the document before acting, only a reserve of post-hoc justifications which could be made by toady fascist jurisprudes.

    • #94
  5. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (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.

    Dennis, let’s try it out. What definition of fascism do you want to test out first?

    Given the above I say this with little hope of a productive exchange. But whatever, here goes.

    Fascism is the totalitarianism of the nation. Believe it or not I’m giving Vermeule a certain amount of credit in that I define the term more narrowly than anyone I know and recognize that fascism is the least bad 20th century totalitarianism. Communism is the totalitarianism of the class and Nazism the totalitarianism of the race. Those were eliminationist ideologies. There is no particular group that has no room under fascism within the national family, an observation born out by the greater part of Mussolini’s tenure when he was functionally independent from Hitler. But neither is there any room for freedom.

    By contrast I give Vermeule less credit than mere authoritarians Franco or most of our anti-Communist client regimes who discounted the individual but recognized that certain spheres like church and family were conceptually outside the state.

    To convince me otherwise you’d have to show that Vermeule recognizes some limit to state power under the constitution. That Vermuele may not claim to want to exercise federal authority in certain ways doesn’t cut it; we all have our notions of how we’d behave prior to slipping on the ring of power. Such limits, in our system are found in the constitution and Vermeule’s piece offers not an interpretation but a means for abolishing it. To the extent that he bothers to discuss the document itself, which is minimal, he gives no indication that the president would ever have to consult the document before acting, only a reserve of post-hoc justifications which could be made by toady fascist jurisprudes.

    I think you have the burden of proof backwards. You’re the one calling Vermeule a fascist (or an almost-fascist) – isn’t it on you to tell me what he said that makes you think so? Because Vermeule certainly doesn’t say that there’s no room for freedom, nor does he say that church and family should be subordinate to the state, and I’m not sure what you mean by “discount the individual”. So why do you attribute those things to him?

    Also, isn’t it up to you to show why you think that Vermeule doesn’t recognize some limit to state power under the constitution? Where you claim Vermeule is silent on important questions, you apparently feel no compunction at filling in your own details. So far, all we have is your assertion still.

    • #95
  6. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (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.

    Dennis, let’s try it out. What definition of fascism do you want to test out first?

    Given the above I say this with little hope of a productive exchange. But whatever, here goes.

    My offer was sincere, and I’m really not sure why you seem to think otherwise. 

    • #96
  7. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):
    I think you have the burden of proof backwards.

    Because here it’s backwards. Vermeule calls himself illiberal. The burden is on you to show that he is in some capacity liberal. Vermeule, believes that the constitution is an impediment to “strong rule” to be overcome by reading his theories into its supposed grand generalities. Vermeule does not believe that the constitution or any written law by itself has intrinsic legitimacy. The burden falls on whoever would argue that there is some constitutional provision he respects.

    The assumption that Vermuele is illiberal only where he writes and liberal wherever he is silent is gainsayed by everything he chooses to let us know about himself and his philosophy. So “Vermeule doesn’t say” is rank sophistry, and the reason for my skepticism about the value of this dialogue. 

    • #97
  8. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):
    I think you have the burden of proof backwards.

    Because here it’s backwards. Vermeule calls himself illiberal. The burden is on you to show that he is in some capacity liberal.

    Well now you’re changing the terms. We were talking about how you think he’s a fascist or an almost-fascist. Illiberal is not a synonym for fascist, especially not as Vermeule goes on to describe what he means by it. 

    • #98
  9. Ed G. Member
    Ed G.
    @EdG

    Dennis A. Garcia (formerly Gai… (View Comment):
    Vermeule, believes that the constitution is an impediment to “strong rule” to be overcome by reading his theories into its supposed grand generalities.

    I think that’s wrong. I think Vermeule thinks that originalism is an impediment to common good. I think Vermeule is wrong about that, for the reasons I’ve already given earlier in the thread, but Vermeule is not anti-constitution. Indeed, the whole point of his piece is a new way for our existing judiciary in our existing constitution to approach decisions and constitutional interpretation. 

    Doesn’t that assumption of the existence of a constitution and a judiciary (as opposed to a dictator) to administer disputes in itself assume limitations on power?

    • #99
  10. Ed G. Member
    Ed G.
    @EdG

    Dennis A. Garcia (formerly Gai… (View Comment):
    Vermeule does not believe that the constitution or any written law by itself has intrinsic legitimacy.

    I don’t recall reading that in the Vermeule piece or any of the items he linked to. I’m not really sure what you even mean by that. However, he did lay out some principles of legitimate government. Do you agree or disagree with any of those? 

    • #100
  11. Ed G. Member
    Ed G.
    @EdG

    Dennis A. Garcia (formerly Gai… (View Comment):
    The burden falls on whoever would argue that there is some constitutional provision he respects.

    He’s talking about how the judiciary should approach decison making. Doesn’t that assume a constitutional framework within which to make decisions?

    • #101
  12. Ed G. Member
    Ed G.
    @EdG

    Dennis A. Garcia (formerly Gai… (View Comment):
    The assumption that Vermuele is illiberal only where he writes and liberal wherever he is silent is gainsayed by everything he chooses to let us know about himself and his philosophy. So “Vermeule doesn’t say” is rank sophistry, and the reason for my skepticism about the value of this dialogue. 

    I don’t assume anything about Vermeule, but “Vermeule doesn’t say” is hardly sophistry. If Vermeule doesn’t say “it”, then by what standard do you ascribe these things to him? How do you know if not by his words?

    • #102
  13. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):
    Well now you’re changing the terms.

    No I’m not. I’m responding to your unfounded assumption that Vermeule is owed a presumption of liberality.

    I concede that Vermuele is concerned with the nation which for a totalitarian means fascism. Do you want to argue that he’s a communist or a nazi?

    That Vermeule believes in a total state is made clear by his intent to read any substantive limitations on state power out of the constitution. To argue that Vermuele doesn’t name check every clause he wants to eviscerate is either childishly pedantic or in bad faith. 

    • #103
  14. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):
    I don’t recall reading that in the Vermeule piece or any of the items he linked to.

    Then your recollection is faulty.

    Ed G. (View Comment):
    He’s talking about how the judiciary should approach decison making.

    The presence of something called a judiciary is meaningful when it can apply substantive restraints on the other branches, not when it provides a guaranteed rubber stamp

    • #104
  15. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):
    Well now you’re changing the terms.

    No I’m not. I’m responding to your unfounded assumption that Vermeule is owed a presumption of liberality.

    Dude! That wasn’t my assumption – I’m not assuming anything. I specifically asked you about why you thought this was fascist. You are changing the terms. 

    • #105
  16. Ed G. Member
    Ed G.
    @EdG

    Dennis A. Garcia (formerly Gai… (View Comment):
    That Vermeule believes in a total state is made clear by his intent to read any substantive limitations on state power out of the constitution. To argue that Vermuele doesn’t name check every clause he wants to eviscerate is either childishly pedantic or in bad faith. 

    What?!? Ok, I think I’m done. Now you know Vermeule’s intent? I prefer looking at his actual words, but apparently that’s just sophistry.

    • #106
  17. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):
    I don’t assume anything about Vermeule, but “Vermeule doesn’t say” is hardly sophistry. If Vermeule doesn’t say “it”, then by what standard do you ascribe these things to him? How do you know if not by his words?

    By the process of applying the general to the specific. Vermeule does not have to say “down with the tonnage clause,” for me to know that he would recognize no restraint on state power through that clause, when his MO is doing away with constitutional restraints on state power.

    • #107
  18. Ed G. Member
    Ed G.
    @EdG

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

    Dennis A. Garcia (formerly Gai… (View Comment):
    Vermeule does not believe that the constitution or any written law by itself has intrinsic legitimacy.

    Ed G. (View Comment):
    I don’t recall reading that in the Vermeule piece or any of the items he linked to.

    Then your recollection is faulty.

    That’s very possible. Where can I find it then? 

    • #108
  19. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):
    He’s talking about how the judiciary should approach decison making.

    The presence of something called a judiciary is meaningful when it can apply substantive restraints on the other branches, not when it provides a guaranteed rubber stamp

    Oh, and I suppose you just know that he assumes the judiciary would only be a guaranteed rubber stamp.

    Makes sense then that he would write an entire essay about the approach that judiciary should use to do their rubber stamping.

    • #109
  20. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):

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

    Dennis A. Garcia (formerly Gai… (View Comment):
    Vermeule does not believe that the constitution or any written law by itself has intrinsic legitimacy.

    Ed G. (View Comment):
    I don’t recall reading that in the Vermeule piece or any of the items he linked to.

    Then your recollection is faulty.

    That’s very possible. Where can I find it then?

    As much as I hate myself for giving in to the “the person I’m arguing with is now my research assistant” school of political debate, here:

    “More important still, thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake; they can be grounded in the general structure of the constitutional order and in the nature and purposes of government. The Supreme Court, like Congress and the presidency, has often drawn upon broad structural and natural-law principles to determine the just authority of the state. “Police power,” which, despite its misleading name, refers to the general power of state governments to protect health, safety, order, and public morality, is nowhere mentioned in the written Constitution. America’s real, “efficient” Constitution is largely unwritten or uncodified, as is true of constitutions everywhere.”

    • #110
  21. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):
    I don’t assume anything about Vermeule, but “Vermeule doesn’t say” is hardly sophistry. If Vermeule doesn’t say “it”, then by what standard do you ascribe these things to him? How do you know if not by his words?

    By the process of applying the general to the specific. Vermeule does not have to say “down with the tonnage” clause, for me to know that he would recognize no restraint on state power through that clause, when his MO is doing away with constitutional restraints on state power.

    Well you might be right. You certainly seem to have your finger on the pulse of an authoritarian mindset. That is, make up whatever you want about your target. It’s obvious. It’s his MO. So you say. Matters not what Vermeule actually says.

    • #111
  22. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):

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

    Ed G. (View Comment):
    He’s talking about how the judiciary should approach decison making.

    The presence of something called a judiciary is meaningful when it can apply substantive restraints on the other branches, not when it provides a guaranteed rubber stamp

    Oh, and I suppose you just know that he assumes the judiciary would only be a guaranteed rubber stamp.

    Makes sense then that he would write an entire essay about the approach that judiciary should use to their rubber stamping.

    Carl Schmitt call your office.

    • #112
  23. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):

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

    Dennis A. Garcia (formerly Gai… (View Comment):
    Vermeule does not believe that the constitution or any written law by itself has intrinsic legitimacy.

    Ed G. (View Comment):
    I don’t recall reading that in the Vermeule piece or any of the items he linked to.

    Then your recollection is faulty.

    That’s very possible. Where can I find it then?

    As much as I hate myself for giving in to the “the person I’m arguing with is now my research assistant” school of political debate, here:

    “More important still, thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake; they can be grounded in the general structure of the constitutional order and in the nature and purposes of government. The Supreme Court, like Congress and the presidency, has often drawn upon broad structural and natural-law principles to determine the just authority of the state. “Police power,” which, despite its misleading name, refers to the general power of state governments to protect health, safety, order, and public morality, is nowhere mentioned in the written Constitution. America’s real, “efficient” Constitution is largely unwritten or uncodified, as is true of constitutions everywhere.”

    This doesn’t say what you said it says. This says nothing about Vermeule’s belief or unbelief in the idea that the constitution or any written law by itself has intrinsic legitimacy.

    • #113
  24. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):

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

    Ed G. (View Comment):
    I don’t assume anything about Vermeule, but “Vermeule doesn’t say” is hardly sophistry. If Vermeule doesn’t say “it”, then by what standard do you ascribe these things to him? How do you know if not by his words?

    By the process of applying the general to the specific. Vermeule does not have to say “down with the tonnage” clause, for me to know that he would recognize no restraint on state power through that clause, when his MO is doing away with constitutional restraints on state power.

    Well you might be right. You certainly seem to have your finger on the pulse of an authoritarian mindset. That is, make up whatever you want about your target. It’s obvious. It’s his MO. So you say. Matters not what Vermeule actually says.

    What matters not is what Vermuele hasn’t said but that his defenders decide to infer from his inauspicious silences.

    • #114
  25. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):

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

    Ed G. (View Comment):
    He’s talking about how the judiciary should approach decison making.

    The presence of something called a judiciary is meaningful when it can apply substantive restraints on the other branches, not when it provides a guaranteed rubber stamp

    Oh, and I suppose you just know that he assumes the judiciary would only be a guaranteed rubber stamp.

    Makes sense then that he would write an entire essay about the approach that judiciary should use to their rubber stamping.

    Carl Schmitt call your office.

    Who’s Carl Schmitt? Does he just know things about people too regardless of what those people actually say?

    • #115
  26. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):

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

    Ed G. (View Comment):

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

    Dennis A. Garcia (formerly Gai… (View Comment):
    Vermeule does not believe that the constitution or any written law by itself has intrinsic legitimacy.

    Ed G. (View Comment):
    I don’t recall reading that in the Vermeule piece or any of the items he linked to.

    Then your recollection is faulty.

    That’s very possible. Where can I find it then?

    As much as I hate myself for giving in to the “the person I’m arguing with is now my research assistant” school of political debate, here:

    “More important still, thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake; they can be grounded in the general structure of the constitutional order and in the nature and purposes of government. The Supreme Court, like Congress and the presidency, has often drawn upon broad structural and natural-law principles to determine the just authority of the state. “Police power,” which, despite its misleading name, refers to the general power of state governments to protect health, safety, order, and public morality, is nowhere mentioned in the written Constitution. America’s real, “efficient” Constitution is largely unwritten or uncodified, as is true of constitutions everywhere.”

    This doesn’t say what you said it says. This says nothing about Vermeule’s belief or unbelief in the idea that the constitution or any written law by itself has intrinsic legitimacy.

    A constitutional theory not grounded in “specific texts” is not a constitutional theory, because it denies the legitimacy of those documents to effect substantive legal restraints. Or did Vermeule not “say” that?

    • #116
  27. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):
    A constitutional theory not grounded in “specific texts” is not a constitutional theory, because it denies the le

    I think I’m picking up on your affinity for Vermuele, you interpret his article the way he would interpret the constitution. It doesn’t “say” that you can’t enact a moralistic police state with a monarchical president. Run a text search and those words are nowhere to be found. Sure it says things that are wholly and utterly incompatible with such a project but it would be unfair to the constitution to apply its principles to situations it didn’t foresee to list in itemized detail.

    • #117
  28. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):

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

    Ed G. (View Comment):
    I don’t assume anything about Vermeule, but “Vermeule doesn’t say” is hardly sophistry. If Vermeule doesn’t say “it”, then by what standard do you ascribe these things to him? How do you know if not by his words?

    By the process of applying the general to the specific. Vermeule does not have to say “down with the tonnage” clause, for me to know that he would recognize no restraint on state power through that clause, when his MO is doing away with constitutional restraints on state power.

    Well you might be right. You certainly seem to have your finger on the pulse of an authoritarian mindset. That is, make up whatever you want about your target. It’s obvious. It’s his MO. So you say. Matters not what Vermeule actually says.

    What matters not is what Vermuele hasn’t said but that his defenders decide to infer from his inauspicious silences.

    Huh? You’re so right. Silence is more damning than words even. How dare he not say the words you just know he thinks but refuses to arm you with!

    This is getting convoluted even for an authoritarian.

    • #118
  29. Dennis A. Garcia (formerly Gai… Inactive
    Dennis A. Garcia (formerly Gai…
    @Gaius

    Ed G. (View Comment):

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

    Ed G. (View Comment):

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

    Ed G. (View Comment):
    I don’t assume anything about Vermeule, but “Vermeule doesn’t say” is hardly sophistry. If Vermeule doesn’t say “it”, then by what standard do you ascribe these things to him? How do you know if not by his words?

    By the process of applying the general to the specific. Vermeule does not have to say “down with the tonnage” clause, for me to know that he would recognize no restraint on state power through that clause, when his MO is doing away with constitutional restraints on state power.

    Well you might be right. You certainly seem to have your finger on the pulse of an authoritarian mindset. That is, make up whatever you want about your target. It’s obvious. It’s his MO. So you say. Matters not what Vermeule actually says.

    What matters not is what Vermuele hasn’t said but that his defenders decide to infer from his inauspicious silences.

    Huh? You’re so right. Silence is more damning than words even. How dare he not say the words you just know he thinks but refuses to arm you with!

    This is getting convoluted even for an authoritarian.

    You should take this up with Vermuele. If you can’t read his piece get him to highlight the parts of the constitution for you, that he thinks should actually mean anything. You’ll be disappointed. 

    • #119
  30. Ed G. Member
    Ed G.
    @EdG

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

    Ed G. (View Comment):

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

    Ed G. (View Comment):

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

    Dennis A. Garcia (formerly Gai… (View Comment):
    Vermeule does not believe that the constitution or any written law by itself has intrinsic legitimacy.

    Ed G. (View Comment):
    I don’t recall reading that in the Vermeule piece or any of the items he linked to.

    Then your recollection is faulty.

    That’s very possible. Where can I find it then?

    As much as I hate myself for giving in to the “the person I’m arguing with is now my research assistant” school of political debate, here:

    “More important still, thinking that the common good and its corollary principles have to be grounded in specific texts is a mistake; they can be grounded in the general structure of the constitutional order and in the nature and purposes of government. The Supreme Court, like Congress and the presidency, has often drawn upon broad structural and natural-law principles to determine the just authority of the state. “Police power,” which, despite its misleading name, refers to the general power of state governments to protect health, safety, order, and public morality, is nowhere mentioned in the written Constitution. America’s real, “efficient” Constitution is largely unwritten or uncodified, as is true of constitutions everywhere.”

    This doesn’t say what you said it says. This says nothing about Vermeule’s belief or unbelief in the idea that the constitution or any written law by itself has intrinsic legitimacy.

    A constitutional theory not grounded in “specific texts” is not a constitutional theory, because it denies the legitimacy of those documents to effect substantive legal restraints. Or did Vermeule not “say” that?

    You’re changing terms again. This is not the same as saying that the constitution or any written law by itself has no intrinsic legitimacy.

    I agree that Vermeule’s constitutional theory is a bit of a mess, but no he didn’t say that the constitution does not have the legitimacy to effect substantive legal constraints, whatever that actually means.

    You can put it in scare quotes all you want, but your insistence that his actual words don’t matter says way more about you than it does about me or Vermeule. 

    • #120
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