When conservatives interpret the Constitution like progressives
Last week, while most journalists and intellectuals were focused on responding to the global pandemic and looming economic depression, a significant number of writers on both the right and left were busy absorbing and formulating criticisms of what may well prove to be the most important essay written by a conservative thinker in many years.
The importance of Harvard Law Professor Adrian Vermeule's "Common Good Constitutionalism," published by The Atlantic, is not a function of originality. Plenty of legal theorists have made similar arguments in the past. When I was an editor at the conservative religious magazine First Things back in 2003, we published an essay by an obscure academic that tentatively advanced similar claims — but we ran it paired with a stinging rebuttal by none other than Robert Bork, a legend in conservative legal circles. Seventeen years later, the views Bork eviscerated are being advanced in a far more cogent and confident way in the pages of a prominent centrist magazine by an author ensconced in one of the country's foremost elite institutions hoping to influence the dozens of judges recently appointed to the federal courts by a right-wing populist president.
Times have certainly changed. But Vermeule hopes to change them quite a lot more.
His primary target is "originalism" — the view, long favored on the right, that jurists ought to defer in their legal interpretations and decisions to the meaning of the Constitution that prevailed at the time of its drafting and ratification, even if doing so cuts against the policy preferences favored by present-day ideological conservatives. In its place, Vermeule proposes a "substantively conservative approach to constitutional law and interpretation" that would not hesitate to empower the legislators and judges to promulgate and enforce a comprehensive notion of the "common good" rooted in "objective natural morality," even if there is little warrant for doing so in the text of the Constitution itself. Instead of flinching from the charge that conservatives aim to use the law to "legislate morality," Vermeule wants conservatives to do precisely that, with conviction and without apology.
But the importance of Vermeule's essay also derives from the author's deft attacks on and selective appropriation of progressive legal assumptions. This is something that many of Vermeule's early critics have missed. Convinced that his ideas are potentially dangerous (they are), these critics rush to denounce and call him names (fascist!) while failing to realize that the most ominous passages of his essay reproduce and deploy for right-wing ends widely shared progressive arguments and assertions about the legitimacy of using law to advance and enforce comprehensive moral views.
In trying to make headway against Vermeule's legal project, one option is to concede these shared progressive/conservative premises and do battle over which of the two comprehensive moral views deserves to triumph. But there is another alternative, which is to take a stand on different ground — the ground of liberal pluralism — by rejecting those shared illiberal premises.
So many passages in Vermeule's essay seem designed to provoke progressives that it's easy to miss how much they reproduce progressive claims. Take the line of argument found roughly halfway through the essay, where Vermeule asserts that "common good constitutionalism" does not aim at maximizing "individual autonomy" or minimizing "the abuse of power," and neither does it "suffer from a horror of political domination and hierarchy" because it accepts that law is "parental, a wise teacher, and an inculcator of good habits." This leads to one of the most striking passages in the essay — one that sounds remarkably like an impatient dismissal of the need for democratic legitimacy and a full-throated endorsement of political authoritarianism.
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 for the individual and common goods, better habits, and beliefs that better track and promote communal well-being. [The Atlantic]
The authoritarianism seems as novel as it is alarming — at least until one realizes that a long line of progressive jurisprudence stretching from President Woodrow Wilson down to legal philosopher Ronald Dworkin and beyond makes nearly identical assumptions about the relationship of constitutional law to democratic majoritarianism. Think especially of progressive Supreme Court decisions on abortion and same-sex marriage that overturned democratically enacted law in states across the country. Or anti-discrimination law and efforts to use it to enforce conformity to progressive views on race, sexuality, gender, and related issues, even when doing so forces churches, schools, and businesses run by traditionalist religious believers to adjust what they say and claim to believe in public.
The case in favor of upholding and enforcing such laws is that a higher standard of morality (and maybe its emanations and penumbras within the text of the Constitution) demands it — and those who resist or oppose this standard have no right to do so. They are bigots who will eventually come to realize that progressives were right and they were wrong. Which is exactly what Vermeule thinks conservative jurists and lawyers should say to those many Americans who would strenuously object, for instance, to a Supreme Court ruling that overturned Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), and perhaps also acted to ground fetal personhood from the time of conception in the Equal Protection Clause of the Fourteenth Amendment.
Because I'm very much at home in "blue" America, I would be far more comfortable living in a country in which the progressive construal of what morality demands was uniformly upheld and enforced by law than I would be in the uniformly pro-life and sexually traditionalist country that Vermeule and other staunch conservatives prefer.
But far better than either absolute extreme would be an America in which the law recognized, reflected, and took its cues from the truth of pluralism. This doesn't imply the denial of a common good. What it denies is that the common good is obvious or simple. Every side of every dispute in our politics is dominated by people trying to advance their construal of the common good against opponents who have their own different views of it.
This jostling and clashing of competing views of the common good is what politics is like everywhere people are free to try their hands at governing themselves, as anyone who has read Book III of Aristotle's Politics is well aware. The main fissure that Aristotle noted in the city states of his time was the clash between the many who were poor and the few who were wealthy. Each class understood the common good in very different ways, and the best that most cities could hope for was a balancing and moderation of each view against the other to form a relatively peaceful and thriving polity.
Our political communities are far larger and far more diverse. Our disagreements are rooted in demographics, as were the ones of Aristotle's time, but the fissures are much more numerous now: class, but also ethnicity, religion, race, age, and others. A few of us, like Vermeule, are conservative Catholics who view the common good in one way. Other Catholics view it somewhat differently. As do white conservative Protestants, white liberal Protestants, black Protestants, Jews, Mormons, Muslims, Hindus, Buddhists, and secular Americans ranging from "spiritual but not religious" to atheist. Add in hierarchies of wealth and education and regionalisms and ideology and many other differences and you end up with a multitude of disparate views about how to define and achieve the good of all 330 million Americans.
Faced with this tableau of pluralistic diversity, a would-be authoritarian like Vermeule will tend to deny its significance — just as a progressive might be unmoved by being told that many millions of Americans don't share his outlook on gay marriage or transgenderism. Sure, people disagree about the good, both camps would say, but if they thought about it as they should, and if the law nudged them along in the right direction, they would eventually come around. Morality is unified and simple, and under the right set of norms and institutions, everyone can be made to acknowledge and affirm it as one.
The great liberal political theorist Isaiah Berlin called this view "monism," and he considered it a recipe for tyranny — not simply because all political communities larger than a small village have too much diversity to be brought around to affirming a single view of the common good without employing coercion, but also because morality itself isn't unified and simple.
Berlin was a moral pluralist, which has implications that go far beyond the banal point that public opinion in nation states is diverse. Berlin's pluralism maintains that our experience of the world tells us there are many objectively good ideals or ends — freedom (in its multiple senses), equality, communal solidarity, piety, justice, to name just a few — and that they inevitably clash with each other. The liberty of a gay couple to marry, for example, will clash with the piety and communal solidarity of the bakery owner who doesn't want to be forced to bake a cake for the wedding ceremony. And of course both sides appeal to conflicting notions of justice as well.
The simple triumph of either side in this conflict represents a real loss. A liberal will be sensitive to the cost — and the civically poisonous consequences of one side being forced to pay it — and will therefore seek to achieve compromise and accommodation whenever possible, using every available means, including appeals to federalism and the crafting of highly nuanced and narrow court decisions that carve out space for different ways of life to flourish as much as possible.
Berlin's pluralistic liberalism teaches us how to live together in pursuit of the common good while honestly facing up and striving to do justice to the irreducible complexity of moral reality.
Adrian Vermeule's monistic authoritarianism, like that of the progressives he mimics, is something else entirely — perhaps its polar opposite. It's an especially vivid example of the troubling tendency of leading writers on all sides of our ideological divides to indulge in the politically pernicious fantasy that they can make Americans who disagree with them disappear.
For those who realize the dangerous futility of such indulgences, a better option awaits us in the liberal tradition. If only we will seek it out.