{"id":6663,"date":"2023-07-01T00:00:00","date_gmt":"2023-07-01T00:00:00","guid":{"rendered":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2023\/07\/01\/adventures-in-christian-authoritarianism\/"},"modified":"2023-07-01T00:00:00","modified_gmt":"2023-07-01T00:00:00","slug":"adventures-in-christian-authoritarianism","status":"publish","type":"post","link":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/2023\/07\/01\/adventures-in-christian-authoritarianism\/","title":{"rendered":"Adventures in Christian Authoritarianism"},"content":{"rendered":"

Book Review<\/strong><\/i><\/p>\n

In his recent book, <\/i>Common Good Constitutionalism (Cambridge, UK: Polity Press, 2022), Harvard University law professor Adrian Vermuele lays out a provocative judicial philosophy. It\u2019s an approach some call \u201cbold\u201d and \u201cthought-provoking\u201d and others simply describe as \u201cdangerous.\u201d<\/i><\/p>\n

Adrian Vermeule, the controversial professor of law at Harvard University, first described his judicial philosophy\u2014common-\u200bgood constitutionalism\u2014in a May 2020 article in The Atlantic<\/i> magazine. The article ignited strong reactions within legal academia, as one would expect given the content. The approach he outlined in his article represented the type of top-down, paternalistic government that the founders of our country so justifiably feared, and that the balance of powers was carefully calculated to prevent\u2014a government dominated by an absolute moral authoritarianism.<\/p>\n

Some of Vermeule\u2019s shocking statements in that article include:<\/p>\n

Unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy<\/i>, because it sees that law is parental, a wise teacher and an inculcator of good habits. . . . Constitutional law must afford broad scope for rulers to promote\u2014 . . . in a famous trinity of principles\u2014peace<\/i>, justice<\/i>, and abundance<\/i>.<\/p>\n

Even more explicitly:<\/p>\n

The Court\u2019s jurisprudence on free speech<\/i>, abortion, sexual liberties, <\/i>and related matters will prove vulnerable under a regime of common-good constitutionalism. . . . The libertarian assumptions central to free-speech law and free-speech ideology\u2014that government is forbidden to judge the quality and moral worth of public speech<\/i> . . . [should]\u2014fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go<\/i>, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.1<\/sup><\/p>\n

After reading this, I couldn\u2019t help wondering, Under Vermeule\u2019s regime, what exactly would be left of our democratic institutions and values, our civil rights, and our civil liberties?<\/i><\/p>\n

An Innocuous Beginning<\/strong><\/p>\n

I started reading Vermeule\u2019s book, Common Good Constitutionalism, <\/i>curious to learn how he would justify his incendiary theories. In the first chapter Vermeule sets out the foundation for his philosophy with a series of statements, including:<\/p>\n

\u201cIn brief, the common good is, for the purposes of the constitutional lawyer, the flourishing of a well-ordered political community\u201d (p. 18).<\/p>\n

\u201cI look to the precepts of legal justice in the classical law\u2014to live honorably, to harm no one, and to give each one what is due to him in justice\u201d (p. 18).<\/p>\n

\u201c[The central goods at which constitutionalism should aim] include, in a famous trinity, peace, justice, and abundance\u201d (p. 18).<\/p>\n

\u201cCommon good constitutionalism shares the view that the positive provisions of the ius civile<\/i> [civil law], including at the constitutional level, can only be interpreted in light of principles of political morality that are themselves part of the law\u201d (p. 17).<\/p>\n

This was hardly the inflammatory rhetoric I expected. Most of these statements would not raise eyebrows, except perhaps those of legal positivists, who claim that morality doesn\u2019t come into it, and the law is whatever society says it is. There were none of the incendiary comments about unlimited executive power or restrictions on individual rights that Vermeule had made elsewhere.<\/p>\n

Also, there were no definitions of his primary terms. As any lawyer knows, a well-crafted statute or regulation always commences with a section defining terms. Clear definitions are crucial for legal argument, and their absence in Vermeule\u2019s book was startling.<\/p>\n

The closest he comes to a definition of \u201ccommon good\u201d is little more than a restatement of the ordinary meaning of the phrase itself.<\/p>\n

In brief, the common good is, for the purposes of the constitutional lawyer, the flourishing of a well-\u00adordered political community. The common good is unitary and indivisible, not an aggregation of individual utilities (p. 18).<\/p>\n

To be sure, the phrase \u201cnot an aggregation of individual utilities\u201d might raise a faint alarm, but it\u2019s not necessarily problematic.<\/p>\n

Also in the first chapter, Vermeule makes the sweeping claim that \u201cclassical law\u201d\u2014which he equates with his own legal philosophy\u2014was \u201cdeeply inscribed in our legal traditions well before the founding era, and was explicit in legal practice through the nineteenth century and into the twentieth century\u201d (p. 12).<\/p>\n

Now, that is<\/i> a big contention, which requires correspondingly strong proof. So what is his proof? Well, we\u2019ll return to that. But for now, suffice it to say there is nothing at all to support it in the first chapter.<\/p>\n

Well, he\u2019s setting up his foundation<\/i>, I thought. The specifics will come later<\/i>. So I continued reading, waiting for definitions, explanations, and clarifying examples. But I waited in vain.<\/p>\n

Throughout most of the book Vermeule continues in the same vein, with bland generalities about \u201ccommon good,\u201d \u201cclassical law,\u201d and \u201cnatural law.\u201d Along the way are also credible critiques of originalism\u2014a conservative judicial philosophy that supposedly grounds constitutional interpretation in the original meaning of the words of the Constitution at the time it was written. My overarching impression is that Vermeule has written this book with liberal readers in mind and has downplayed the more radical aspects of his philosophy. He frequently quotes liberal legal scholar Ronald Dworkin, whose methods of moral analysis of law he accepts, while explicitly disclaiming Dworkin\u2019s liberal view of morality.2<\/sup><\/p>\n

Vermeule carefully avoids discussions of the most controversial aspect of his philosophy\u2014draconian restrictions on individual rights. The few places he does allude to such restrictions, he is careful to use the least controversial examples he can find. For example, in his treatment of free speech restrictions, he references a case in which the Supreme Court invalidated a statute prohibiting \u201cvirtual\u201d child pornography (p. 271). Not an analysis most of us would passionately dispute.<\/p>\n

He does, as would be expected, condemn the 2015 Supreme Court decision Obergefell v. Hodges<\/i>, which defined a federal right to same-sex marriage. But for the most part, he engages in very little discussion of individual rights, and he spends a lot of his book proposing expansion of executive power to enact economic and environmental regulation, in another apparent attempt to court liberals.<\/p>\n

Occasionally, though, he does break cover. The most significant of these outbreaks is this scathing paragraph in his chapter on \u201cliving constitution\u201d interpretations.<\/p>\n

The progressive judge instrumentalizes the law in the service of a very particular liberationist narrative, in which \u201crights\u201d are continually \u201cexpanded\u201d to free an ever-larger set of individuals from unchosen obligations and constraints. . . . I have argued elsewhere that progressive constitutionalism is the embodiment, in law, of the \u201cliturgy of liberalism\u201d\u2014the repetitive impulse of liberal political theology to celebrate a sacramental moment of overcoming of the unreason and darkness of the traditional past (pp. 202, 203).<\/p>\n

I can\u2019t help wondering what are these rights that \u201cprogressive judges\u201d have so recklessly expanded. The rights of African Americans to vote (South Carolina v. Katzenbach<\/i>), or to obtain an equal, integrated education (Brown v. Board of Education<\/i>)? The right to marry someone of another race (Loving v. Virginia<\/i>)? The rights of women to equal treatment under the law (Reed v. Reed<\/i>) and to control when they get pregnant (Griswold v. Connecticut<\/i>)?<\/p>\n

And as for the \u201cdarkness and unreason of the traditional past,\u201d does he mean the traditional past in which people of faith (including Catholics) were persecuted and even killed for their religious beliefs? in which Native Americans were slaughtered when they couldn\u2019t be driven from their native lands? in which African Americans were property and women little more than property? in which only propertied Protestant White men had the right to vote?<\/p>\n

Whose Natural Law?<\/strong><\/p>\n

It is what Vermeule carefully avoids<\/i> saying, however, that is crucial to understanding his theory. Although he claims his approach is based on \u201cclassical law\u201d and \u201cnatural law,\u201d what he fails to say is that there is more than one theory of natural law.<\/p>\n

The concept of natural law has been developed by multiple philosophers and political theorists throughout the centuries of the modern age, and Vermeule crucially fails to identify which version of the theory he subscribes to. To recognize Vermeule\u2019s brand of natural law, the reader would have to have an existing knowledge of the subject and read carefully between the lines.<\/p>\n

The biggest clue is that Vermeule frequently quotes Thomas Aquinas, a medieval priest, theologian, and philosopher. He peppers his book with Thomistic (related to Thomas Aquinas) code-words. Aquinas\u2019s philosophy is complex and has been interpreted in many different ways, but \u201cmedieval\u201d and \u201cCatholic\u201d is a fairly accurate, if overly simplistic, summary. Aquinas was a great thinker with some profound insights, but he was a product of his time\u2014a time the church ruled the Western world, controlled secular rulers, and enforced its theology through the law and criminal penalties. I don\u2019t think we need to be reminded of the disastrous consequences of that combination of secular and religious power.<\/p>\n

Here are a few representative examples of Aquinas\u2019s conclusions that flow from his conception of natural law.<\/p>\n

On religious liberty.<\/strong><\/i> Aquinas agrees in principle that unbelievers, such as Muslims and Jews, should not be forced to convert, because \u201cto believe depends on the will.\u201d However, believers can wage war against unbelievers to prevent them \u201chindering the faith.\u201d And heretics (believers who have changed their beliefs) can be put to death.3<\/sup><\/p>\n

<\/p>\n

On adultery.<\/strong><\/i> Aquinas states that a man should not kill his wife for adultery, but he can hand her over to the authorities for capital punishment. And if he kills her in a jealous rage, he won\u2019t be convicted.4<\/sup> Of course, there\u2019s no discussion of penalties for a man who commits adultery.<\/p>\n

On the role of government.<\/strong><\/i> Aquinas states that one of the primary roles of the state is to \u201cfoster religion.\u201d5 <\/sup>This is directly opposed to the democratic conception of separation of church and state. And also, that it be \u201chelpful to discipline,\u201d meaning that it enforces his conception of natural law.6<\/sup><\/p>\n

Clearly Aquinas did not believe in individual rights or freedoms, but his philosophy was a product of his historical period and political milieu. The problem comes when a legal theorist such as Vermeule attempts to import Thomistic philosophy wholesale into the 21st century, as if it were equal to divine revelation.<\/p>\n

More seriously, Vermeule explicitly equates his idea of natural law with the kind of \u201cnatural law\u201d understood by the founders of the United States. The only support Vermeule provides for his contention that America was founded on the principles of natural law as he (and Aquinas) understand them is American blasphemy laws.<\/p>\n

It\u2019s true. Many states in America had blasphemy laws on the books until comparatively recently. And they were even enforced.  However, what he carefully avoids saying is that those same blasphemy laws were accompanied by harsh anti-Catholic restrictions.7 <\/sup>Certainly not something of which Aquinas, or Vermeule himself, would have approved!<\/p>\n

Poles Apart<\/strong><\/p>\n

The truth is that Thomistic natural law and the concept of natural law adopted by America\u2019s founders are based on diametrically opposed assumptions.<\/p>\n

In general, Thomistic natural law is based on the assumption that the good of the individual is determined by the \u201ccommon good\u201d of the community.8<\/sup> That is the meaning of Vermeule\u2019s quote, cited earlier, \u201cThe common good is unitary and indivisible, not an aggregation of individual utilities\u201d (p. 18).<\/p>\n

Vermeule is correct in stating that a concept of natural law underpinned America\u2019s founding. Many people don\u2019t realize that the majestic words of the Declaration of Independence are, in fact, a clear statement of the American founders\u2019 conception of natural law\u2014\u201cWe hold these truths to be self-\u00adevident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.\u201d<\/p>\n

The Declaration, with its ringing affirmation of individual rights, <\/i>grounded in natural law, has been the guiding legal principle of our country from the beginning. It has been relied on and affirmed by America\u2019s great leaders at every crucial crisis point in our history.9<\/sup> It was affirmed by the founders and by John Quincy Adams in his Amistad<\/i> argument.10<\/sup> It was relied on by Abraham Lincoln in opposing slavery.11<\/sup> It provided the moral foundation for the Civil War\u2014the \u201cnew birth of freedom.\u201d12<\/sup> It was explicitly cited as moral and legal authority by John Bingham, the drafter of the Fourteenth Amendment, which freed the slaves and granted to the people of the states the full rights of the Constitution.13<\/sup> And it was invoked again as our country\u2019s guiding authority by Martin Luther King Jr., in what could be called \u201cthe second new birth of freedom.\u201d14<\/sup><\/p>\n

These words, based on the philosophy of the Protestant Enlightenment philosopher John Locke,15<\/sup> represent a strong affirmation of individual <\/i>rights and liberties, in direct opposition to Aquinas\u2019s \u201cthe good of the community is the good of the individual\u201d philosophy. These two versions of natural law are not the same and cannot be reconciled. Nowhere does Vermeule acknowledge this key difference, and thus the foundations of his thesis fall.<\/p>\n

Apostle of Authoritarianism<\/strong><\/p>\n

To more fully understand Vermeule and his judicial philosophy, it\u2019s important to know that he is a self-avowed Catholic integralist. In essence, that means he believes the Catholic Church should control the state and Catholic doctrine should be imposed by law. Moreover, as more than one commentator has noted, Vermeule relies on the philosophy of Carl Schmitt, a prominent German Nazi philosopher, who wrote approvingly of dictatorship as a preferred style of government.16<\/sup> These two facts alone are sufficient to inform us regarding the underlying assumptions and the ultimate intent of Vermeule\u2019s judicial philosophy.<\/p>\n

In a 2018 article, \u201cIntegration From Within,\u201d Vermeule exults in the collapse of liberalism\u2014by which he means governments that grant their citizens freedom and individual rights. Vermeule suggests an important role for those who similarly look forward to liberalism\u2019s demise. He likens these individuals to the biblical figures of Joseph, Daniel, Mordecai, and Esther, who rose to power within pagan governments.<\/p>\n

In the same way, says Vermeule, agents of postliberalism may also come to occupy elite positions in today\u2019s administrative state, where they may \u201chave a great deal of discretion to further human dignity and the common good.\u201d  Yet, he adds: \u201cThey do not evangelize or preach with a view to bringing about the birth of an entirely new regime, from within the old.\u201d17<\/sup><\/p>\n

This quote offers us an illuminating glimpse into Vermeule\u2019s view of himself\u2014a Daniel in the court of decadent liberalism. Given the legal philosophy he preaches throughout his writings, Vermeule\u2019s claim to shun evangelizing or preaching has little credibility. Evangelizing is exactly what he is trying to do, using his position as a teacher of future leaders of the legal system to create a swelling tide of support for his authoritarian philosophy.<\/p>\n

The deep irony of this reference is that Joseph, Mordecai, Esther, and Daniel, far from undermining a \u201cliberal\u201d order of government, were struggling valiantly to save themselves and their people from absolute dictatorships\u2014illiberal, repressive governments with no freedom of religion, and very few other freedoms, much like Vermeule\u2019s vision of the ideal government. It would be dark comedy if it weren\u2019t so terrifying.<\/p>\n

1 Adrian Vermeule, \u201cBeyond Originalism,\u201d The Atlantic<\/i>, Mar. 31, 2020.<\/p>\n

2 See, e.g., Common Good Constitutionalism<\/i>, pp. 10, 16, 45, 46.<\/i><\/p>\n

3 Thomas Aquinas, 4 Summa Theologiae<\/i>, II-II, q. 10, a. 8, c. and ad 3.<\/p>\n

4 Thomas Aquinas, Summa Theologiae, Supplement, <\/i>q. 60, art.1.<\/p>\n

5 Ibid., q. 95, art. 3.<\/p>\n

6 Ibid.<\/p>\n

7 See Kurt J. Lash, \u201dThe Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle,\u201d Arizona  State Law Journal <\/i>27, no. 1085 (1995): 1106, 1119, 1120, 1122\u20131124.<\/p>\n

8 To be fair, Aquinas explicitly states that laws will differ in different times and places, \u201caccording to the customs of the country,\u201d but must always be in accord with his conception of natural law. See Aquinas, Summa Theologiae, Supplement<\/i>, q. 95, art. 2.<\/p>\n

9 I am deeply indebted to Gary V. Wood, associate professor of political science, Andrews University, for pointing out the numerous uses of the Declaration of Independence in American history, and especially for providing me with the citations to the primary research material.<\/p>\n

10 Argument of John Quincy Adams in United States v. The Amistad<\/i>, 40 U.S. 518 (1841).<\/p>\n

11 Abraham Lincoln, speech at Springfield on Dred Scott decision (1857).<\/p>\n

12 See Lincoln\u2019s Gettysburg Address.<\/p>\n

13 Congressional Globe<\/i>, 39th Congress, p. 429.<\/p>\n

14 See Martin Luther King Jr.\u2019s \u201cI Have a Dream\u201d speech.<\/p>\n

15 See Bren\u00e9e Goforth, \u201cHow John Locke Influenced the Declaration of Independence,\u201d July 4, 2019, on the John Locke Foundation website.<\/p>\n

16 See, e.g., Jason Blakely, \u201cThe Integralism of Adrian Vermeule: Not Catholic Enough.\u201d Commonweal Magazine,<\/i> Oct. 5, 2020.<\/p>\n

17 Adrian Vermeule, \u201cIntegration From Within,\u201d American Affairs<\/i> 2, no. 1 (2018).<\/p>\n","protected":false},"excerpt":{"rendered":"

Book Review In his recent book, Common Good Constitutionalism (Cambridge, UK: Polity Press, 2022), Harvard University law professor Adrian Vermuele lays out a provocative judicial philosophy. It\u2019s an approach some call \u201cbold\u201d and \u201cthought-provoking\u201d and others simply describe as \u201cdangerous.\u201d Adrian Vermeule, the controversial professor of law at Harvard University, first described his judicial philosophy\u2014common-\u200bgood<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[354],"tags":[186],"class_list":["post-6663","post","type-post","status-publish","format-standard","hentry","category-july-august-2023","tag-july-august-2023"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6663","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6663"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6663\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6663"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6663"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6663"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}