A few years back, the Harvard law professor Adrian Vermeule published an incendiary essay at The Atlantic called “Beyond Originalism.” In it, he laid out a case for a strong, activist state that might use its powers to both instill public morality and address social woes. Readers can be forgiven if they don’t remember it, and the dust-up it occasioned: it came out in March of 2020, as the world was shutting down and most of us were desperately looking for toilet paper. And yet it is worth returning to Vermeule and his ideas now. The sort of conservatism he represents is ascendant, and now on display in his fiery piece for Compact, the new postliberal magazine du jour, where he is a contributing editor. The book-length version of the Atlantic article, Common Good Constitutionalism, was released in February. It presents an opportune moment to take a sober look at his ideas—and why they must be rejected, even and especially by those who, like him, seek a Christian alternative to liberalism.
Vermeule, for the uninitiated, is a Harvard law professor and a Catholic convert who is notorious for his extreme—and some say theocratic—views about the constitutional system (I have written elsewhere about his previous work). He is part of a broad constellation of “postliberal” luminaries that includes Patrick Deneen, Chad C. Pecknold, Sohrab Ahmari, and the Israeli philosopher Yoram Hazony. They are united by a vision of conservatism that pushes beyond the establishment dogma of the past, which attempted an unhappy marriage of social conservatism and free-market liberalism (sometimes called “fusionism”). Conservatives, they think, must get past the idea that they are duty-bound to play by the rules of the liberal order. Its ideals of free speech and individual liberation have, in their view, led straight to the moral confusion that is symbolized most clearly by transgender people. The only response to this morass is to establish, as one of them put it, “[a] public square re-ordered to the common good and ultimately the Highest Good.” Such a project would require a muscular state that defends traditional Christian values and wields its power to create a “rightly ordered” polity.
As a legal scholar, Vermeule is different and more dangerous than his postliberal confrères. Owning the libs is, for him, more of a pastime than a full-time job: he is a formidable expert in administrative and constitutional law, which led Donald Trump to appoint him to an executive agency dealing with those themes. From his post at Harvard Law School, he has a hand in educating the elites who will stock America’s mighty administrative agencies—those that will shape our lives for decades to come, regardless of who is in the White House.
Postliberals have been the subject of a great deal of excellent, and often nervous, journalism in recent years. As a historian, I hope to add something a bit different to this conversation. I’d like to take some time to think through one of postliberalism’s texts, seriously and on its own terms—to peek under the hood of post-liberalism, not as a network of people, but as a style of thought.
I began my reading of Vermeule’s Common Good Constitutionalism with a series of questions, the same ones I bring to any text: what are the ideas here? What evidence is adduced for them? Are the arguments sound, and am I persuaded? And in this case: how does Vermeule deal with the obvious objection that the classical tradition was nightmarish for racial and religious minorities, and was largely and rightly rejected for that reason? It quickly became apparent that these are the wrong questions. Common Good Constitutionalism is a savvy book, well-written and, in its own way, insightful. It is not, however, persuasive, and it does not do what I, naif that I am, imagine scholarship ought to do: gather the best evidence, take counter-arguments into account, and so on.
I came to see that those are in some ways “liberal” questions. When I read, I presume a marketplace of ideas, in which the best ideas take home the prize—if not in the real world, at least in the agora of the reader’s mind. From this perspective, Common Good Constitutionalism is truly a bad book. Postliberals, though, are critical of exactly this model. Vermeule has long been convinced that the anarchic spread of ideas and information is bad for the polis, and that in an ideal world, the guiding hand of the enlightened regime would shape the public sphere. His goal in writing books like this, then, is not to persuade hostile readers, but to provide ammunition for his allies. This kind of drum-beating might seem quaint and irrelevant, a sort of cosplay for Twitter radicals. It always does, until the shooting starts.
Since I do not take this combative approach to intellectual inquiry, I will begin by presenting Vermuele’s argument in the most generous and charitable terms that I can. This is not an unwelcome challenge, because for all of his faults Vermeule is a captivating writer, and a penetrating intellect. And he begins, too, in the right place. He is fully aware that we live on an unequal and rapidly warming planet, and that the aimless and immoral political order that got us here is not going to get us out.
The reason, he suspects, is that we Americans are captive to an incoherent understanding of the law: what the law is, and how the state might use it to legitimately wield power. For the last half-century, modern conservatives have wedded themselves to a novel and fruitless legal doctrine known as “originalism.” The idea is that interpreters of the law ought to be guided by the original intent of the lawmakers, and above all by the original intent of the framers of the Constitution. Originalism has been hugely influential, and plausibly five of our nine U.S. Supreme Court justices subscribe to it.
Originalism fails, for Vermeule, because it cannot be honest. It is impossible to base contemporary judgments on an imagined consensus of past lawmakers without relying on all sorts of unstated norms about how we access their intentions, and which principles ought to be honored. Because originalists cannot admit to this, well-funded libertarians have rushed in to claim that their own vision was hegemonic for past legislators, and for the founders. This is disastrous for Vermeule, not so much because it is wrong about the founders, but because libertarianism is itself an impoverished account of power and law. Limiting the power of the state does not, in itself, free the individual, nor does it free those communities (families, churches, unions) that the individual inhabits. It tends instead towards the grotesque empowerment of private power holders—namely corporations—who exercise more total forms of control than the state could ever dream of. This partly explains the hysteria in postliberal circles about “Big Tech” and its censorship: the issue, for them, is not that Big Tech censors, because in their jaded view the public sphere will inevitably be shaped by someone. The issue is that it is being shaped by “private tyrants”—the wrong kind of elites—left unchecked by a libertarian account of the state.
Originalism is not, of course, the only understanding of law on the scene today. There are more liberal and progressive visions on offer in the jurisprudence of someone like Ruth Bader Ginsburg. For Vermeule, it is no coincidence that RBG became something of a saint, because he sees in this kind of progressivism a furious, and religious, creed, purposely designed to uproot every established hierarchy in the name of unbridled individual expression. As the Court argued in Planned Parenthood vs. Casey (1992), individuals have the right to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” In the end, this corrosive view of the law, for Vermeule, is just as bad as its libertarian opponent.
Originalists and progressives may battle it out to no end, but Vermeule thinks they have more in common than they acknowledge. Neither camp is prepared to answer a simple question: what is the role of the law in creating the world we want? What, in the end, is the law, and why is it legitimate in the first place?
“Vermeule proposes an activist American state that would intervene precisely because it is in touch with the ancient tradition of law from which we have briefly and regrettably departed.”
Vermeule thus arrives at the legal version of the question that animates much postliberal thinking: why do we, as a society, lack a rich account of the common good, and how might it be restored? The answer, for Vermeule, is to discard superficial and modern accounts of the law and return to the deeper wellspring of tradition. For millennia, jurists have understood that the very concept of “law” only makes sense if we have a common understanding of what goods the law is supposed to cultivate. The precise notion of the good took Catholic, Orthodox, and even pagan forms, but the classical tradition as a whole agreed that the law was designed to cultivate human flourishing by creating a well-ordered polity that would provide, in one classic formulation, “peace, justice, and abundance.” The political good and the individual good are one and the same, since a human being cannot flourish in a corrupt political system. This was understood, for instance, in the Roman Empire, when for Vermeule the law was coherently organized towards social flourishing in a way that it is not any longer.
Vermeule is of course aware that the world has changed since Roman days, and that the law must change too. He does not think, though, that progressives are the only ones with a cogent theory about this. Justinian’s Codes may say nothing about Facebook, but this doesn’t mean, by Vermeule’s lights, that the Codes can’t provide principled guidance for regulating behemoth tech companies. The proper model for development is the one offered by John Henry Newman: a development that clarifies and extends the original principles of law, rather than breaking with them. So just as the classical tradition was always committed to speech suppression in the name of reason and virtue, lawmakers now can regulate or destroy social media companies for the same reasons.
This might sound strange to modern American ears, but Vermeule thinks that it shouldn’t. The American legal tradition, he insists, has been much more “classical” than most of us think. The founders were steeped in the tradition, and even the English common law doctrine that they knew best was, at its core, in line with the tradition in its commitment to the common good. Only quite recently—and most fully in the 1960s—was this tradition wholly abandoned, and the sterile debate between originalists and progressives launched. The results have been, Vermeule thinks, catastrophic, and the rationale for returning to the ancient tradition obvious.
What Vermeule is proposing, then, is an activist American state that would intervene precisely because it is in touch with the ancient tradition of law from which we have briefly and regrettably departed. Neither the Constitution nor the rights-bearing individual ought to guide our policymaking, but rather the good of the whole. And while that might lead to some trampling on both the Constitution and the rights of some individuals, that is, in the end, not especially important, for the very essence of the law is the creation of a healthy, virtuous community.
I have tried my best to lay out Vermeule’s argument as cogently and persuasively as possible. How, though, to judge a book like this? To begin with, I think it’s a blind alley to act shocked that Vermeule is calling for some sort of theocracy. He may be, but not in this text, which is quite short on details but seems in the main oriented towards the kind of “illiberal democracies” that we find in Hungary and elsewhere. It is precisely the wrong strategy, for the hostile reader, to rehearse once again the dangers of such a regime. Vermeule and his circle positively revel in that kind of liberal pearl-clutching, and it’s best not to feed the beast. I would rather weigh the book on its own merits, insofar as my own lights allow. I am not a legal scholar, and there are aspects of the book that I am not qualified to judge (much of the book is taken up with analysis of case law). I am, though, a historian, and a progressive, and Vermeule’s accounts of history and progressivism are crucial to the argument. And on these grounds, I can say that Vermeule’s account of history and progressivism are entirely unmoored from reality.
It might seem like a foolhardy exercise to submit a book like this to the cold standards of academic reason, but there is at least a small utility: with his Harvard pedigree and his love of Latin, some readers might be bamboozled into thinking that a book like this is an instant classic, a Nicomachean Ethics for our times. It is not. This emperor has no clothes. The echo chamber is deafening, and I have not seen a putatively academic book that emerges so wholly and completely from a particular intellectual hothouse. To make the banal point that governments everywhere rely on practices and norms that are not directly established in their constitutions, he cites Joseph de Maistre—one of the most unapologetic reactionaries of modern times. In his account of the American Revolution, he sees no need to cite or engage the armies of historians who have dealt with it, but he does engage at length with a Cistercian monk who wrote about it for “The Josias,” a website devoted to the establishment of Catholic “integralism.” He draws throughout on blog posts at First Things or at Ius & Iustitum, a website devoted to the classical legal tradition.
“Vermeule’s account of ‘progressivism’ is drawn mainly from his own previous writings, which are themselves a risible caricature derived from other right-wing screeds.”
This method has consequences for every theme that Vermeule touches. But to return to our two: Vermeule argues that progressives are consumed to distraction by issues of gender identity and opposition to religion. This is crucial to his argument because he wants to present himself and his tradition as the only one capable of using state power to solve social issues in a genuinely moral way. A reasonable scholar might, to understand contemporary progressives, pick up a copy of The Nation or Jacobin; maybe she would go to a DSA meeting, or talk to some progressives in her acquaintance. Vermeule wouldn’t even have to go far; as a professor at Harvard, he is presumably surrounded by progressives at every faculty meeting. And yet his account is drawn mainly from his own previous writings, which are themselves a risible caricature derived from other right-wing screeds. Whatever one thinks of progressives, it is empirically absurd to claim that they are concerned above all with, in his words, “the imposition of public morality that constrains personal expression and elite experiments in living.”
Progressives go to great lengths, in articles like this one, to understand their enemies; it is dispiriting but important to realize that the other side is not so inclined. Vermeule has turned progressives into libertines, whose main fixation is with personal and sexual liberation. I don’t mean to downplay the importance of self-expression and experimentation: it’s true that progressives today, in line with old liberal and leftist principles, are committed to expansive rights for minorities and also to what John Stuart Mill called “experiments in living.” But if I had to list the three issues that are convulsing progressives in my own town (which is neither Cambridge, nor Twitter-ville), it would be teacher salaries, affordable housing, and criminal justice reform. And I would add that religious leaders and institutions, Catholics included, are very much on the front lines. Perhaps this should not be so, but it is, and an analysis of progressivism that entirely—and I mean entirely—ignores the actual movement is not a serious one.
So one of my own spheres of competence is not, apparently, Vermeule’s. I can say the same of my other one: history. Vermeule’s story does rely on a historical narrative, but one that is both distorted and overblown. It is clearly true that American lawyers, until around 1900, operated with some understanding of natural law; it is obvious, too, that American lawmakers were committed to a social understandings of rights, and of human flourishing. Thus far, Vermeule is on solid ground.
But he does not remain there. It is a very different thing to claim—as most scholars do not—that the founders and later American jurisprudence was bound to a specific legal tradition that has any relation to St. Thomas Aquinas. He simply ignores the monumental debates on these themes launched by Bernard Bailyn’s Ideological Origins of the American Revolution. He lavishes attention, instead, on the handful of books and blog posts, mainly by law professors rather than historians, that bolster his strained case. Even the books that he leans on are cherry-picked. He relies heavily on Tamar Herzog’s Short History of European Law for his account of the common law tradition, but ignores the fact that Herzog’s account of the Revolution differs entirely from his own (she thinks that it was modern, based in Enlightenment values, and represented something quite new).
It’s hard to shake the sense that, however much he wants to instrumentalize it, Vermeule does not much care about the American Revolution as a specific historical event, just as he doesn’t much care about what progressives actually think. I should say, too, that his belief that the American legal profession abandoned the classical tradition somewhere around 1960 is presented with no evidence whatsoever, and is disputed by the same legal experts he cites. The idea that the Founders were appropriately “classical” and America was Great until the 1960s is not, in this book, a historical claim at all, in the sense that it is based on evidence, or even on reading people who have looked at the evidence. It is pure ideology, perhaps slotting neatly into Substack postliberalism but far removed from the searching lights of historians—even sympathetic ones.
Vermeule is just as cavalier with the classical legal tradition that purportedly guides him. His claim is decidedly not that the classical tradition is “moral” while others are not. One of his most persuasive points is that every system of law, whether it is recognized or not, expresses some kind of moral viewpoint. His claim, therefore, has to be that the “common good” tradition has a specific code, and one that for reasons of longevity or rationality ought to be preferred to his libertarian and progressive enemies. The reader might expect that this would be the main point of the book. Au contraire, the main point of the book is to skewer Vermeule’s enemies, while the character of “common good constitutionalism” is left almost entirely vacuous.
There really is not much more to it than the claim that law ought to be oriented towards the common good of the community, rather than to the private flourishing of individuals. The section on “defining the common good” is, literally, two pages long, and includes the sophomoric analogy that the political community is like a sports team that only succeeds by playing together. The book is studded with seemingly impressive quotations in Latin from, above all, Ulpian, Justinian’s Codes, and St. Thomas Aquinas. These quotations reiterate the basic point, and Vermeule declines to use them to answer the genuinely challenging questions. How do we balance the different components of the common good? Of its many component parts, which are most important? Who counts as part of the “community” conjured by “common good”? Should national borders make sense in this world? Should illegal immigrants be counted, and if not, why not?
The book does not address these questions at all. It is clear to Vermeule, for instance, that gay marriage, pornography, and abortion are not conducive to the common good. We would expect, then, an argument from either the tradition or from reason that this is so. But we get nothing of the sort. The tradition, in fact, is not so clear on these things. Roman societies, supposedly well-ordered, reveled in pornographic exhibitions that would make Americans blush. Aristotle was fine with abortion and even Justinian’s Code allowed it in some cases. Why should the tradition lead us differently now? The book is silent on this, leading the reader to the inexorable conclusion that “common good constitutionalism” is no less arbitrary or capricious than the traditions that Vermeule despises.
Just as Vermeule does not adequately define the tradition he defends, he does not even attempt to defend it against the most obvious and serious objections. The classical tradition endorsed many kinds of organized oppression, most notably slavery, in its zeal for the common good. The moral titans that Vermeule draws us to were divided on the question of abortion, as they were on many others, but they agreed about this one. The well-ordered community required the suppression or marginalization of those communities who were deemed irrational, naturally inferior, or non-conducive to the good of the whole. None of the classical lawyers seriously questioned the institution of slavery. Other kinds of organized hate were valorized, too. Justinian’s Code was vicious on the subject of the Jews, and St. Thomas Aquinas did not fare much better. From their perspective, the polis had little to gain from the public teaching of flagrantly false doctrine.
“The true danger is that Vermeule’s school will convince certain Christians that they, and they alone, understand the political implications of faith—and then move to enforce their newfound orthodoxy, untrammeled by the silly constraints of equality, dignity, or religious freedom.”
The only place where race, or any kind of minority right, is discussed in any detail comes in a laudatory section on Loving v. Virginia, which legalized interracial marriage. It is striking, though, that Vermeule applauds this decision, which sanctified marriage, as part of his assault on the later legalization of same-sex marriage. In other words, minority rights are only worth mentioning in this book insofar as they can provide a thin justification for denying a different sort of minority rights. And he spares a half-sentence of musing that the Reconstruction-era Constitutional amendments (which ended slavery) ought to be counted as a victory of “classical law.” He provides no reason to believe this, nor does he spend a moment pondering how the overturning of slavery could be a result of the same tradition that had defended it for centuries.
I can imagine a defense of the classical tradition that admitted its unsavory history. The great Catholic philosopher Jacques Maritain, for instance, self-consciously attempted to update the ancient tradition to make room for human equality and human rights. Even a footnote to a figure like this would signal Vermeule’s allegiances. And yet he does not provide one: to the contrary, his preferred interpreter of natural law, Charles de Koninck, became famous for his critique of Maritain, precisely because he thought Maritain was going too far in his attempt to modernize the classical heritage. So the problem isn’t, just, that Vermeule doesn’t mention race or minority rights. It’s that he gives every indication that, were he to do so, the answers would be so revolting that it might send even sympathetic readers back to the well of liberalism.
So, why waste my words on an obscure academic while the world burns? Though Vermeule might appear cryptic and easily dismissable to some readers, he is steadily working to provide legal scaffolding for an authoritarian intelligentsia that is already making significant inroads into U.S. politics. Like the German jurist Carl Schmitt, Vermeule is the kind of right-wing intellectual who rehearses and refines ideas that may seem esoteric in the interregnum but are ready-made to justify an authoritarian regime when the time comes. If the American experiment does indeed hurtle towards violence, people like him, and books like these, will suddenly start to matter.
Perhaps the most successful coup accomplished by the postliberals has been to claim that moniker as their own: “If you do not like liberalism,” that name promises, “then join us, for we will emerge in its wake.” Postliberalism has a frisson to it, doubtless appealing to the many leftist Christians who are sick unto death of the modern world and its many horrors.
But this is the wrong way. It is the stony ground. If Christianity has a political mission at all, it begins in solidarity with the most oppressed and the most downtrodden, and it requires us to organize every element of our thought and action around that solidarity. Postliberals often leverage the Christian concern with suffering by redefining it. If Christ walked among us, I sincerely doubt that he would be concerned with maks mandates for children, or the nurses forced to get vaccinated, or the fascists excluded from the lecture hall, or the professors who must encounter a transgender person at Starbucks. He would be sharing his table with refugees, illegal immigrants, and sex workers. And those voices, the ones that will assume pride of place in Christ’s kingdom, are absent, wholly and completely, from this book and from others like it.
If an encounter with Vermeule is at all useful, it is because it helps us to clarify the nature of the task ahead of us. It might feel fashionable and fun to style ourselves as postliberal provocateurs, able to see through the vanities of the modern age and recover the solid ground of tradition. But as I hope I’ve shown, what postliberals are doing in fact is replacing one set of modern vanities with their own, in an endless game of smoke and mirrors that neither recognizes, nor does anything for, the people in this world who are genuinely suffering.
The true danger is that Vermeule’s school will convince certain Christians that they, and they alone, understand the political implications of faith—and then move to enforce their newfound orthodoxy, untrammeled by the silly constraints of equality, dignity, or religious freedom. I propose, therefore, a new catechism, with some old and obvious truths that are in danger, just now, of being obscured. It is possible to celebrate the virtues of community and family and faith without embracing authoritarianism. It is possible to celebrate the virtues of community and family and faith without oppressing those who do not celebrate them, or who celebrate them differently. And it is possible for a politics of community and family and faith to be, also, a politics of justice: a politics that seeks to transform the social and economic order in ways that make community and family and faith available to all who want them, and on whatever terms they choose. This, and not some sort of perverse new Inquisition, is what is demanded of Christians today.
James Chappel is the Gilhuly Family Associate Professor of history at Duke University. He is the author of Catholic Modern: The Challenge of Totalitarianism and the Remaking of the Church (Harvard University Press, 2018). He is currently working on a book about old age, disability, and the frailty that unites us.