I really enjoyed the piece by Barber, Macedo, and Fleming this week, about Adrian Vermeule and positive constitutionalism. They describe positive constitutionalism as constitutional thinking that focuses “on positive ends (including the economic and cultural conditions that foster respect for some negative liberties).” If I’m perfectly frank, I think this is the only sensible way to think about constitutionalism: even negative liberties exist for the sake of other, positive ends (like freedom of conscience, peace, flourishing, etc).
I said my own bit about Vermeule’s Atlantic piece via two Twitter threads back in March, which I replicate down below. At the time, I took issue with the publication of the piece. I still sort of do. Barber, Macedo, and Fleming are clearly right that Vermeule’s piece has generated conversation, but I still think it flies in the face of the purpose of the Atlantic’s constitution series. In that sense, it exploited readers’ credulity.
Here are three other great pieces on Vermeule that might be of interest:
A very thoughtful overview of Vermeule’s philosophical and legal trajectory. I appreciated how ** connected some dots here for me, re: Vermeule’s work with Cass Sunstein):
Until quite recently, Vermeule was a part of the intellectual mainstream. During his most formative years, the “law and economics” school of legal thinking (which was attractive to Elizabeth Warren at the same time) transformed the way many academics thought about the law. Its basic insight was that legal decisions should be adjudicated using economic criteria, seeking the most rational and utility-optimizing solutions rather than the ones that might cohere best with musty precedent. As one might expect, this school found its home base at the University of Chicago, where Vermeule was hired in 1998. While there, he began to work closely with two colleagues, Posner and Sunstein, the latter of whom became regulatory czar in the Obama administration. Neither of them are conservatives in the traditional sense: both presume that abstract questions of ideology have little place in legal analysis, and both can best be described as technocrats—or, perhaps, apologists for technocracy. And yet, somehow, they found themselves working cheerfully with a future reactionary. This says something about Vermeule, to be sure. But it says something about them, too.
And then there’s this stuff, about Carl Schmitt:
Vermeule’s work on administrative law with Sunstein led, therefore, to a classic question: Who, in the end, has the capacity to employ the awesome powers of the modern state? This is where Vermeule’s work with Posner comes into play. Both of them look to the German jurist (and prominent Nazi) Carl Schmitt. Together, they set out to translate his sometimes gnomic insights into the language of contemporary legal scholarship. Schmitt showed, they believe, that the executive branch is the proper locus of sovereignty and the one that is most legitimately linked with the people. It is also the only one with the capacity and speed to act in times of emergency. In response to the furious national debates over the scope of the executive prompted by the Patriot Act, Vermeule and Posner published two books, Terror in the Balance (2007) and Executive Unbound (2009), that brought Schmitt’s insights into the context of contemporary America and its global War on Terror. The books mount a robust defense of executive leeway, including the right to use “enhanced interrogation”—or, in layman’s terms, torture.
And then there is this, about the lengths to which the state might go to promote its positive ends:
It is chilling to consider what kinds of activities Vermeule would like to see for children at the local library. He is well aware that drag queen story hour is in line with many people’s sensibilities; he is aware, too, that no amount of somber roundtables about the collapse of natural law will change that fact. As such, he has begun to entertain dark visions about how the administrative state might coerce the unruly people toward virtue. He positively cites Joseph de Maistre, a Catholic critic of the French Revolution and fellow defender of torture. Vermeule dreams of a world in which we will “sear the liberal faith with hot irons” in order “to defeat and capture the hearts and minds of liberal agents.” A less honest thinker would be sure to remind readers that this is all meant metaphorically. Vermeule does no such thing and goes out of his way to assert that “coercion” ought to be on the table. There is only one way to read this: he is arguing that actual violence could legitimately be used to convert hearts and minds.
Chappel suggests in this article that Patrick Deneen takes a more moderate approach to his reform efforts. I think it’s worth repeating here that Deneen has expressed public support for Vermeulism this summer (as part of a series of since-deleted tweets).
Blakely also addresses the Schmitt connection, and I appreciated how he identified Vermeule’s willingness to translate “Schmitt’s authoritarianism into the sober findings of social-science research and the institutions of American democracy.”
Vermeule’s debt to Schmitt is no secret. In a 2017 First Things essay, “A Christian Strategy,” he praises Schmitt for grasping that “the universal jurisdiction and mission of the Church require it to be flexible in different places and times, willing to enter into coalitions that would be unthinkable for anyone with a merely political horizon.” Vermeule displays similar flexibility himself, drawing from Schmitt but adapting him to contemporary debates. Unlike Schmitt, he uses the prestige of the social sciences in order to advance his often tendentious ideological claims. (He’s not alone in that, a phenomenon I critically examine at length in my recent book, We Built Reality). Vermeule makes clear the need to replace Schmitt’s metaphysical obscurities with what he calls the “simple causal intuitions and models” of “the social sciences, including economics, law-and-economics, and political science.” It’s a sophisticated strategy of translating Schmitt’s authoritarianism into the sober findings of social-science research and the institutions of American democracy.
Blakely’s overall argument is that Vermeule’s approach to politics, while pretending to Catholicism, fails to address the very many ways in which liberalism serves genuine Catholic ends quite well. I think this is a weakness that is shared by Deneen.
Levitz offers an analysis of the political responses to Vermeule’s Atlantic piece, and the claims made by several conservative commentators that Vermeule’s position is actually quite banal. He sums things up like this, tying Vermeule’s moment last year to the (then-) current state of the GOP:
The party that represents these constituencies does not forthrightly endorse the political domination of hostile subjects. But it does seek to subordinate democracy to its vision of the common good through voting restrictions, jurisdiction stripping, and gerrymandering. In fact, just yesterday, the Republican Speaker of Georgia’s House of Representatives argued that allowing voters to cast ballots by mail would be “extremely devastating to Republicans and conservatives in Georgia” because it “will certainly drive up turnout.”
Vermeule may be little more than an overread crank with a coveted sinecure. But the fact that conservatives can read his theocratic manifesto as “banal” is alarming. If calling for the persecution of the “urban gentry” is merely giving liberals a taste of their own medicine, then how could any God-fearing conservative object to a little garden-variety mass voter suppression?
Here’s my original twitter thread, edited a bit for clarity:
All meaningful constitutionalism is “common good” constitutionalism. Traditional liberal democratic constitutions consider individual human rights to be in the public interest: democratic liberty and constitutional limits ARE ends-in-themselves, integral parts of the common good.
Vermeule’s overt celebration here of “THE RULER” and authority are patently anti-democratic, illiberal, and, dare I say it, un-American (even for people who don’t care an inch about originalism).
His ideas about the common good are more complicated.
Reactionaries like Vermeule, Deneen, Ahmari, typically operate within a very narrow, often theological, conception of the common good (or “The Common Good”), which typically involves a singular + settled conception of The Good Life. In such a view, power ought to aim for this Good.
Vermeule’s piece bears this out. His view of what counts as in public interest is awfully pinched. He talks of the “traditional family” for example; “liberty” and “rights” are in scare quotes; he can’t understand why sexual freedom might be good for anyone, etc. Such a narrow account of the good is inconsistent with basic principles of liberal democratic constitutionalism. Liberal constitutionalism doesn’t abandon the common good, but it DOES insist on making room for a large (not unlimited) plurality of understandings of what counts as good, or as a good life, and it makes room for a wide variety of ways of life. And yes, liberal democratic constitutionalism values individual choice and variety as essential dimensions of morality and the human condition.
Usually, when reactionaries talk about liberalism being dead, promoting “illiberal legalism,” etc, they are making an extremely savvy and effective rhetorical choice. It allows them to tap into all the anti-Democratic, anti-liberal partisanship of the right, while masking the fact that they are at the same time attacking the liberal democratic underpinnings of the American constitutional order (including “originalism”). In other words, if you’re not paying attention, Vermeule sounds like just another conservative who can’t stand liberals, but he’s actually operating against the whole idea of participatory liberal democracy. He gets to amp up the base and at the same time veil-over the threat he poses to the constitutional order that they too (presumably? still? maybe?) hold dear.
To be fair, Vermeule is far less hand-wavey here than, say, Patrick Deneen. Vermeule is pretty explicit, it seems to me, about his rejection of constitutional limits. I think this is very frightening. I guess he sees it as his moment.
That Vermeule’s essay seems at all interesting makes it clear that it continues to be important for the left to mount a strong, principled, values-based defense of liberal democracy. No taking it for granted, no flinching in face of uncomfortable “moral talk” from the right.