Adrian Vermeule’s Brilliant Essay on Common Good Constitutionalism

The Havard jurist Adrian Vermeule has published a brilliant essay in The Atlantic arguing that American conservatives should move beyond the legal philosophies that dominated the rearguard of the long defeat to hard liberalism, and adopt a jurisprudence of the common good. Vermeule’s common good constitutionalism shows a deeply Augustinian and Thomist of the educative and directive function of law in helping human beings come to the common life of virtue in peace for which they all yearn (even if they don’t all know it):

unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, 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 for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

Michael Hanby, in a recent essay on contemporary integralists (including Vermeule, Gladden Pappin, and me) in First Things, warns that “today’s integralist thought risks degenerating into a conservative Catholic form of Hobbesian power politics.” But Vermeule’s essay shows him to be anything but Hobbesian. Hobbes had a purely subjective and private account of the good: “whatsoever is the object of any mans Appetite or Desire; that is it, which he for his part calleth Good.” Therefore, he thought that there could be no last end or highest good rendering human life intelligible: “Felicity is a continuall progresse of the desire, from one object to another; the attaining of the former, being still but the way to the later.” For all of Hobbes’s totalitarian conception of the commonwealth, then, the end of his political philosophy is deeply individualistic: the security of each individual in the pursuit of his private desires. Vermeule, by contrast, having an objective understanding of the good sees that the end of politics (and therefore ultimately of jurisprudence) is a common good:

Authority is held in trust for and exercised on behalf of the community and the subsidiary groups that make up a community, not for the benefit of individuals taken one by one.

It follows from this that Vermeule sees the state as being obligated to give subsidium to smaller communities in which true common goods are attained:

The state is to be entrusted with the authority to protect the populace from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment. Unions, guilds and crafts, cities and localities, and other solidaristic associations will benefit from the presumptive favor of the law, as will the traditional family; in virtue of subsidiarity, the aim of rule will be not to displace these associations, but to help them function well.

I could go on, but I would end by quoting every line of the essay, which I urge my readers to go read.

14 thoughts on “Adrian Vermeule’s Brilliant Essay on Common Good Constitutionalism

  1. Pater Edmund, if you’ll forgive me a long post copied from elsewhere:

    To start with, I share Vermeule’s fundamental dislike for originalism as a form of legal positivism. I prefer legal theories that allow the jurist to appeal to norms of the natural law. Furthermore, I am neither a libertarian nor, by disposition, a “small-government conservative.” I don’t object in principle to taxation, clean-air or clean-water rules, mandatory vaccination, etc. I might find certain regulations too stringent by an order of magnitude or two, but I’m not a Montana militiaman with a copy of the constitution in my breast pocket saying it’s all Bolshevism.

    So, on first principles, I agree with Vermeule’s argument. From there, though, we run into his idiosyncrasies and hobby horses. He’s a Schmittian proponent of a virtually unfettered executive with a vast bureaucracy. Hmm, well:

    1.) Schmitt was a sinister figure who might have had some good points, but again was the wrong person to make them.
    2.) We have a gigantic government anyway without Vermeule’s theory and does he think it works for his ends?
    3.) The argument is ahistorical.

    While I’m not an originalist or even a fan of Edmund Burke (what little I know of him), surely *some* component of the sociopolitical tradition Vermeule identifies with (conservatism? rightism?) involves the stability of society, and some component of that is rhetorical continuity with past figures in one’s own history. There are in fact lots of good precedents in America for the type of political thought and praxis Vermeule advocates, but it typically comes from legislation, and my impression is that Vermeule despises the legislative branch. He could latch onto Hamilton, Henry Clay and the American System, Lincoln, Teddy Roosevelt, FDR and the New Deal, LBJ and the civil rights legislation of the 1960s, etc., etc., as examples of American statesmen who used robust government power to effect the common good within a specific moral framework.

    One can make a “common-good constitutionalist” argument for all of these while eschewing the narrow parameters of the received rightism. Populist conservatives and centrists and certain figures on the left might latch onto this. But rather than engraft his theory within the American rhetorical tradition, Vermeule invokes “the early modern theory of ragion di stato.” He comes out the other side of the argument recreating America into Confucius’ China run by mandarins, or Canada with her “Peace, Order, and Good Government.”

    No, we’re the country of the homesteader, so argue that common good-constitutionalism is what gave us the Homestead Act, the Louisiana Purchase (which Jefferson made despite thinking he lacked constitutional warrant to do so), and the Northwest Territory. Vermeule’s argument is long on logic and weak on rhetoric–the spoon full of sugar that helps the medicine go down. As written, it will likely persuade few people, least of all Vermeule’s fellow citizens (and he should care about that).

    Like

  2. “Michael Hanby, in a recent essay on contemporary integralists (including Vermeule, Gladden Pappin, and me) in First Things, warns that ‘today’s integralist thought risks degenerating into a conservative Catholic form of Hobbesian power politics.’ But Vermeule’s essay shows him to be anything but Hobbesian. Hobbes had a purely subjective and private account of the good: “whatsoever is the object of any mans Appetite or Desire; that is it, which he for his part calleth Good.”

    I don’t think your response addresses the criticism. What’s at stake here isn’t Hobbesian subjectivism, but rather Hobbesian *power politics.* Vermeule is a disciple of Schmitt, who was a disciple of Hobbes. Additionally, Vermeule is defending a very strong centralized government for the prevention of human beings within society waging a war of all against all. He doesn’t use those terms, but some of his talk strongly implies that a bureaucracy is the only solution to endemic injustice. So, depending on how skeptical one is of centralized bureaucracy (as the Anglo-Saxon constitutional tradition typically is), you could say he arrived at Leviathan without Hobbesian subjectivism.

    He does say that the government should practice subsidiarity. But what does Vermeule think of federalism and states’ rights? That’s the existing basis for subsidiarity as actually practiced in America.

    Like

    • I think my response does address the objection, because Hanby’s objection is precisely that Hobbesian power politics is a politics of “brute force” rather than of cultivating (growth-giving), liberating authority. But the root of Hobbes’s reduction of power to brute force is his subjectivism. Vermeule, on the other hand, sees power precisely not as brute force, but as an aid to growing towards true fulfillment.

      Like

      • “Vermeule, on the other hand, sees power precisely not as brute force, but as an aid to growing towards true fulfillment.”

        He can assert that, but the means he proposes aren’t much different from a Hobbesian Leviathan. He thinks we should love Leviathan and welcome it, but it’s Leviathan (a top-heavy, virtually unlimited executive regime) he champions all the same.

        The pedigree Hobbes-Schmitt-Vermeule should not be ignored or dismissed on the basis of the subjectivism question.

        Like

      • It’s like your problem with Leviathan is that it’s based on Hobbesian subjectivism. Most people’s problem with Hobbesian subjectivism is that it leads to Leviathan. Vermeule keeps Leviathan, and that’s a problem with him as an advocate for integralism because most Americans, rightly, don’t want a centralized government that’s as strong as he wants it. It’s not required by integralism, and it’s not part of our received Anglo-American constitutional tradition.

        Like

        • What makes Leviathan Leviathan is that its power is irrational and unlimited. On Vermeule’s account, the power of rulers is rational (as I argued above) and it is limited by natural and divine law and the principle of subsidiarity. Having a strong authority to pursue the common good is not contrary to local authority. Rightly understood, in fact, it is necessary for the flourishing of the local.

          Like

  3. First I would like to endorse the bulk of what the Wisconsinite says in his two perspicacious comments above. Secondly, with the Wisconsinite, I would like to recognize much soundness in Vermeule’s version of integralism, modulo the reservations expressed above. Vermeule´s version is not wacky. Vermeule has a sharp mind and is well-versed in the historical questions that bear on the theory, and I appreciate thus Pater Edmund’s appreciation of Vermeule.

    But not to the point of convincing me to board the integralist ship. The Wisconsinite, perspicaciously associates integralism with power politics, and I would like to add to that analysis that the power politics behind integralism is typically animated by a type of historical resentment. This combination of power politics with resentment reveals the fatal flaw in integralism, and without that flaw, I don´t see a clear concept of what integralism can represent, or of what the word is useful in describing.

    The solidities of Vermeule are all reflective of his assimilation of the Social Doctrine of the Church. But the Social Doctrine of the Church is not to be identified with integralism (its covert power politics and its resentment).

    Recognizing the exigencies of the Principle of the Common Good does not make of one, as by definition, an integralist.

    You know who stands with Vermeule in his admiration for bureaucracy? Zizek. But I would say that Vermeule is no more a typical integralist than Zizek is a typical communist. Both are intelligent men, and perhaps they are making the same point as regards to bureaucracy, and that it is, to an extent, a legitimate point.

    Zizek flys the flag of Marx, Lenin, and Stalin (albeit in a jocose half-ironic way). Vermeule flies the flag of Schmitt, who made himself useful for Nazism. That is also curious. What does it mean?

    The Popes, and the Church herself with them, has presented a social doctrine that is not troubled by the shadows that accrue to Zizek´s communism or to Vermeule´s winks at Power Politics of another stripe: Namely, the Christian personalism articulated in GS and by John XXIII, Paul VI, John Paul II, Benedict XVI and Pope Francis. The Church´s doctrine is, moreover, the Evangelical doctrine: ¨Among you, it is not to be so, but he would be great must become the servant of all¨

    This personalism is not in conflict with the Church´s ecclesiological doctrine. It is not in conflict with the doctrine that the Church is our mother, and that there is no salvation outside of her.

    This is what the integralists with all their arrogant sniping at Vatican II, do not get.

    Like

    • I am currently listening to a conference of Vermeule after having listened to another…with fascination and admiration. He reminds me not to despair entirely of conservatism (and tradition) in, let us say, the Chestertonian sense. And I don´t find here that touch of the over-clever which I found in his twitter account (while admiring much of what I found there as well.)

      Like

  4. Is a thoughtful integralism possible?

    A question like that can only be answered when one defines adequately what one means by integralism.

    (I have listened to a wonderful conference of Vermeule entitled ¨Sacramental Liberalism and Ragion di Stato (https://www.youtube.com/watch?v=QRBKn55gGlA) in which Vermeule realizes a powerful criticism of liberalism which is powered by the simple fact of beginning with an adequate definition of what he means by liberalism.)

    If we are therefore to discuss integralism in a sensible way, we must define what we mean by the term.

    There authors who call themselves integralists who are also capable of explaining adequately what they mean by the term. (I think of Vermeule and Michael Paterson Seymour, who refers to Blondel´s unwillingness to jettison integralism.) There will be more;. but there is, I am afraid, a paucity and that tells us something.

    (Similarly among the masses of those who place themselves as liberals there is also a remarkably small number of those who have a truly clear idea of what they mean by the term liberalism. And this is equally telling, in spite of , or rather because of the extent to which liberalism has become the default ideology.)

    I find it safer to speak not of what integralism means, but of what I would like it to mean.

    I would like integralsm to mean that correct and necessary appreciation of the substantial nature of the Church´s social teaching, as a coherent and unchanging doctrine affirming a social order ordained to the Common Good, rooted essentially in the Deposit of Faith and in reason, and thus not merely in the Spirit of the Times.

    Integralism, thus understood, would be a necessary and decisive value.

    But where are the integralists who are willing to acknowledge that the substantiality of the Church´s Social Doctrine does not exclude its development?

    If you exclude the development of doctrine you will end by undermining the substantiality of doctrine, and doctrine will end by being reduced to myth and ideology.

    Some integralists, for instance, oppose integralism to the doctrine of the Seamless Garment (something that the Magisterium is delineating in ever clearer terms). But the Seamless Garment, rightly understood, rhymes with integralism, rightly understood. The two things are fundamentally the same thing. The Seamless Garment tells us not to mess with the Social Doctrine of the Church, and that is exactly what integralism, rightly understood, tells us.

    The two things are in fact one thing. Integralism means the Seamless Garment.

    Like

      • There is a substantial number of people who are either self-identifying integralists or who unconsciously identify with the integralist camp who defend authoritarian politics, and whose concept of authority is in fact authoritarian. I find this already in the de Koninck versus the personalists thing. (Have you seen this?https://www.firstthings.com/web-exclusives/2020/04/false-notions-of-the-common-good) Without calling de Koninck´s knowledge of St. Thomas into question (a temerarious enterprise) I think that certain people groove on his precipitating attack against ¨¨the personalists¨ because that allows them to defend certain forms of pseudo-Catholic authoritarianism.

        1. They would, for instance, use de Koninck´s conception of the Common Good to defend Franco´s bloodlust, saying that Franco was defending the Rights of God, and that in the person of Franco we have an authentic defense of the Social Kingship of Christ. The problem here is that an authoritarian dictatorship does not effectively model the Kingship pf Christ.

        2. They would use an authoritarian Common Good argument to justify the selfish and cruel immigration policies typifying the age of Trump, Orban, Salvini, Wilders, Le Pen, et al.

        3. They would use a Common Good argument to defend Capital Punishment, to attack Pope Francis, as heretical for delegitimizing the Death Penalty.

        And here we can apply the principle that there can be no authentic Integralism without the Seamless Garment (Cfr. Cardinal Bernardin), that Integralism and the Seamless Garment are consubstantial. That authentic integralism has nothing to do with an authoritarian concept of authority, and is in fact entirely opposed to it.

        In this context I would attack the cliche (defended by Edward Feser and assumed by almost everybody) that St. Thomas defended the Death Penalty.

        What St. Thomas defends is Natural Law, and not the authoritarian concept of authority opposed to the very essence of Natural Law.

        St. Thomas uses the ¨analogy¨ (We shall see if that is in fact the right word.) that just as an amputation of the member of the human body may be necessary in order to preserve health (the Common Good!), so may the amputation of a person from the Social Body (i.e. Capital Punishment.)

        Thus (supposedly) it is clear that that St. Thomas really did supports an authoritarian concept of authority which undergirds the Institution known as the Death Penalty, and that he would have grooved on the same forms of cruelty that certain authoritarians groove on in the contemporary context.

        But, sorry, St. Thomas is NOT prophetically anticipating the thought of today´s authoritarians. He is, rather, prophetically anticipating Christian Personalism and the Theology of the Body. In the language of the Bible, the Body is the Person. The supposed opposition between the Primacy of the Person and the Primacy of the Common Good gets, in this perspective, completely resolved, undone, and falsified. The two principles are not at odds with each other, but rather the two principles are in fact one and the same principle.

        An attack against the Dignity of the Person IS an attack against the Common Good!!
        Analogy is not in play, but rather univocity, that is, IDENTITY.

        Like

  5. I appreciate Vermeule’s essay and thoughts. I very much prefer his Common Good Constitutionalism to some sort of Originalist conception that seeks to make the Constitution into a quasi-biblical text. But as he then goes on to flesh out how his theory would look in the real world, it becomes clear that he doesn’t take into account the principle of subsidiarity. Why would the Federal Government be mandating vaccines? The Feds are going to go around dragging people out of their homes and forcing them to get shots? That is, quite frankly, ridiculous. His whole conception seems to be that the United States is a unitary state. But, the fact is, its not a state at all. It is 50 states. New York is as Different from Texas as Spain is from Mexico. A true conception of the Common Good would recognize the very different cultures and histories of the different states that make up the Federal Government and seek to limit itself only to those things that it can do within its proper bounds. As an Ohioan, I would be quite irritated by the Feds coming into our state and usurping our institutions by claiming that they know better than we do. Each state is capable of attaining the common good. The Federal Union should only be utilized to attain those goods that pertain to the common agreement of all 50 states. But as I said in the beginning, I appreciate Vermeule’s contribution and think that it is definitely food for thought. And its necessary for all people of good-will to hash out our different ideas and conceptions. But I will stop short of calling his essay brilliant.

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.