top of page

Adrian Vermeule’s Hyper-Modernist Politics

On Adrian Vermeule’s Common Good Constitutionalism



Harvard law professor Adrian Vermeule first came to my attention in my own third year of law school. Vermeule’s insightful 2017 essay in First Things, “A Christian Strategy,” helped me to formulate and clarify my own thinking. The essay also offered a penetrating description of cultural progressivism as the celebration of a sacrament—the “Festival of Reason”—in which ideological enemies are destroyed.


Vermeule is usually classified as a Catholic jurist and, in “Strategy,” Vermeule’s political eschatology had a thought-provoking Marian focus. At the time, I would have been surprised if you’d told me that Vermeule had only become a Catholic in 2016.


In addition to being a strategist, however, Vermeule is also a political philosopher. In 2020, he published a seminal essay in The Atlantic advocating “Common Good Constitutionalism.” While this phrase may suggest a school of jurisprudence, what the essay actually offered was a political theory.


Vermeule observed that, because cultural conservatives are now disfavored outsiders, their goal is to limit the power of the present Regime. This is the wrong approach, Vermeule claims.   


To “minimize the abuse of power,” he wrote, is “an incoherent goal.” Rather than seeking to protect liberty from the state, conservatives should—counterintuitively—work to aid the present Regime by removing any lingering limitations on its power. In fact, they must actively help the federal government to attain comprehensive power over all areas of society: "the power needed to rule well.”


Vermeule’s essay was, and has been, widely mischaracterized. In 2020, many readers—including a number of pearl-clutching progressives—read the Atlantic piece as implying that that right-wingers should first take control of the Regime and then remove any limits on its power. Vermeule himself never says this. In fact, the same year his Atlantic article was published, Vermeule coauthored a book with progressive jurist Cass Sunstein on administrative law. Subtitled “Redeeming the Administrative State,” the book called for expanding the power of existing federal agencies.


Vermeule’s left-wing critics and right-wing admirers both failed to grasp the central thesis of his Atlantic piece. By “reading between the lines,” each group heard what they feared or hoped Vermeule was saying: that right-wingers should seek totalitarian power as a means to pursue culturally conservative ends. In reality, the taproot of Vermeule’s political philosophy is his view that any concrete limits on centralized power—regardless of who wields that power—are inherently wrong. Greater and greater state power, as such, must be pursued as a fulfillment of the essential nature of government.


In his 2022 work Common Good Constitutionalism, a 200-page treatise, Vermeule summarizes and greatly expands on this political philosophy. If anyone doubted the power-as-good reading of Vermeule’s Atlantic essay, Vermeule’s book razes those doubts to the ground.


Common Good sometimes presents itself as an assault on “originalism.” Accordingly, some responses to the book by legal scholars have been defenses of originalism. I see this debate about originalism as peripheral to Vermeule’s central theory and, in any case, have no dog in the fight. I have even less in common with Vermeule’s “originalist” critics than I do with Vermeule. My interest here is in considering Common Good Constitutionalism as a work of political philosophy.


As a political theorist, Vermeule has a singular focus on one unwavering theme and conclusion. While Common Good Constitutionalism addresses a broad range of theoretical topics, Vermeule liturgically recites the same answer to every question he raises. Once the reader grasps the basic principles of the book, he can easily predict—with algorithmic accuracy—what Vermeule is going to say about any subject in political theory.


Vermeule’s political ideal can be briefly, but comprehensively, summarized with one image. To understand his vision of rightly-ordered government, it is helpful to imagine a single, isolated throne hovering above an open horizon. Beneath this throne, a flat surface extends in every direction. This surface is featureless, with no mountains or valleys that might threaten or provide any shelter from the throne. All parts of the surface are equally exposed to the eye and power of the One Throne.


The reader will find that this one image and description perfectly anticipates and captures every twist and turn of Vermeule’s politics. Each aspect of Vermeule’s program is directed towards his simple ideal of state power as indivisible, perfectly centralized, and absolute.

To be clear, Vermeule has no particular preference for monarchical or one-man rule. As far as he is concerned, the throne we’ve pictured could be occupied by an oligarchy or a democracy. What is essential is simply that the Regime be concentrated in a top-down, unitary, and mono-organizational state.


Vermeule opposes any prospective, written constraints on the state’s power, any judiciary capable of enforcing constitutional limits on the state, and any regional power-centers capable of challenging the state. He recoils from any whiff of decentralization and prefers the state to be extended over as large an area as possible. When Vermeule encounters any autonomous institution or organic sphere of life outside of the state, he gently prostrates and vivisects it before the throne.


In his own words, Vermeule categorically rejects the goal of “minimizing the abuse of power.” He reframes the Catholic doctrine of subsidiarity as “fundamentally a positive, empowering principle, one that confers affirmative powers on the highest government authority.” He rejects all “federalism in the sense of state sovereignty” as “a kind of neurosis.” He implies that all regional governments must surrender their autonomy to the largest possible governing unit available—if not to global government, then at least to “continent-wide governance.”


Although local authorities of some kind should exist, they must be purely the creatures and tools of the “highest public authority.” Any remaining “statutes and constitutional provisions should be interpreted to allow the highest public authority in the polity to exercise prudential judgment” over local affairs and spheres of power.


Vermeule seems unsatisfied with merely repelling the unsympathetic reader with this cold vision of a vast and total state. To drive the point home further, he weaves into the book a sort of deliberate joke at the reader’s expense. As he constructs his omnipotent Regime, Vermeule repeatedly and vaguely teases a suggestion that he is going to leave in place, as a sort of concession, one final limitation on the state’s power.


Towards the end of the book, however, Vermeule unveils his limiting principle: he advises that the rulers of a state should voluntarily elect to “certify that they have considered principles of subsidiarity when enacting new laws.” This is the sole “limit” on state power allowed anywhere in the book. Perhaps to Vermeule’s credit, he does not claim that asking a dictator to consider whether his actions are bad has ever prevented any evil person from doing anything.


Although Vermeule appears to have little or no familiarity with pre-Renaissance history—a fact we will discuss in greater detail—he is certainly not ignorant of 20th century history and, controversially, closely identifies his ideas with Carl Schmitt. Yet Vermeule’s book makes no real attempt to address the obvious practical consequences of his political philosophy.

Perhaps the most surprising and incongruous thing about Vermeule is that, despite his candid opposition to all limits on political power, he is rhetorically unwilling to be identified as supporting totalitarianism or even “authoritarianism.”


In order to evade charges of totalitarianism, Vermeule resorts to an extreme version of the motte-and-bailey strategy. When setting forth affirmative positions, Vermeule confidently stretches out in the bailey, rejecting every concrete limitation on government that he encounters. When responding to imagined critics, however, Vermeule retreats to a motte, where he strikes the pose of a moderate fending off anarchists.


Those who disagree with him, he says, believe that all government as such is “wholly tyrannical.” Despite forthrightly opposing the rule of written law, judicial independence, and all vestiges of federalism, Vermeule—in his defensive mode—describes himself as opposing “rigid limits on federal power,” “excessive constitutional constraint,” a “rigid precommitment” to regional autonomy, and so on.


This rhetorical strategy might work on Twitter—where it likely originated—but it is a very strange thing to behold in a 200-page book. Vermeule seems to forget that the reader has read the other things he has just written, and knows perfectly well that Vermeule does not merely oppose “excessive” and “rigid” limits on power.


The weakest aspect of Common Good Constitutionalism is its anachronistic view of history. Vermeule consistently describes his own views as representing the premodern classical and medieval legal tradition—or “classical legal theory”—and depicts any disagreement with his views as “innovative and modernist” and “liberal.”


For example, Vermeule claims that premodern legal theory did not emphasize “minimizing the abuse of power—an incoherent goal in any event.” In traditional legal thought, he says, government was not “intrinsically suspect, as one might infer from certain strands of the liberal tradition.”


This story fits nicely with the Enlightenment’s view of the Middle Ages, but it will not make it past anyone whose knowledge of premodern politics goes deeper than Twitter. Aristotle’s Nicomachean Ethics, for example, famously took it as a first principle that “we do not allow a man to rule, but rational principle, because a man behaves thus in his own interests and becomes a tyrant.” This statement is an inversion of the entire thesis of Vermeule’s book.


The problem of the abuse of power played an important part in the political thought of medieval Christian thinkers including Manegold of Lautenbauch, Gratian, John of Salisbury, and Henry de Bracton, all of whom might be surprised to learn that they espoused “modern” views. Likewise, medieval Christian leaders like Thomas Becket, Gregory VII, and Innocent III sought to curb the abuses of rulers by enforcing institutional limits on their power. These men presumably did not think they were doing anything “incoherent” or “liberal.”


Vermeule’s basic alienation from the premodern tradition can be seen in the authorities he appeals to. The book’s only premodern authorities are a few passing references to Justinian’s Digest, Aquinas, and Bracton—none of whom are used to support any of Vermeule’s central claims. Aquinas, for example, is cited for his definition of law as “an ordinance of reason for the common good.”


This dearth of premodern sources is not due to the short length of the book—for Vermeule draws on a rich range of modern authorities. In particular, he demonstrates a wide knowledge of Renaissance Italian thinkers. He cites, and discusses in detail, Machiavelli, Bartolus de Sasseferrato, and Giovanni Botero. He draws upon 20th century jurists including Carl Schmitt, the Austrofascist thinker Johannes Messner, and Ronald Dworkin. Vermeule also seems to have modeled himself on Darth Sidious, although this is a supposition on my part as Sidious is not credited in any footnotes.


As an aside, my reference to Messner’s politics should not be taken as an attempt to disparage Vermeule. The Austrofascists were in fact significantly more traditional and less authoritarian than Vermeule, famously rejecting Vermeule’s preference for “continent-wide governance.”  


At one point, I thought Vermeule might be alluding to a classical source when he stated that “In the words of… the Spanish theorist Ricardo Calleja, the injunction of classical governance for the common good is imperare aude – ‘dare to command!’” Celleja, an associate of Vermeule’s, invented this Latin saying in a blog post in 2020. The blog post does not reference any classical sources.


Vermeule does not hesitate to attribute evil motives to his own ideological opponents, describing opposing views as being in “bad faith” a number of times. The reader should excuse me, then, for speculating about how Common Good Constitutionalism came to strike such a pseudo-reactionary pose while presenting ideas no older than Renaissance despotism.   


My suspicion is that, at the time Vermeule converted to Catholicism, his view of the premodern legal tradition was based on an Enlightenment caricature of medieval Europe as a highly authoritarian society micromanaged by the Spanish Inquisition. Vermeule embraced this caricature because it complimented his own desire to be seen as a sinister figure.

When he sat down to write Common Good Constitutionalism, then, Vermeule probably expected that he could mine the premodern Christian corpus for statements extolling vast, authoritarian power. I think he was surprised when he opened John of Salisbury’s Policraticus and—instead of finding the droit du siegneur—encountered statements like “None has ever trampled on liberty except for the manifest enemies of virtue.” Accordingly, Vermeule opted to retain a rhetorical veneer of medievalism while falling back upon early modern Italians and hyper-modern 20th century totalitarians.  


If Vermeule can be accused of “bad faith” on one count, it is his abuse of the Catholic Compendium of the Social Doctrine of the Church. Although I am not a Catholic, I discuss the Compendium to illustrate the point that—when Vermule attempts to position himself as speaking for tradition against modern innovation—his own authorities do not support his conclusions.


The Compendium contains an eight-paragraph section defining the Catholic doctrine of “subsidiarity,” a teaching which—among other things—advocates for the decentralization of significant power to “local territorial realities.” The section heavily emphasizes that subsidiarity is a restraining principle which “protects people from abuses” by limiting “centralization” and the “excessive presence of the State in public mechanisms.” For example, the Compendium says that “it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do.”


The last paragraph of the section, however, cabins the principle of subsidiarity by clarifying that decentralization need not be an absolute: “Various circumstances may make it advisable that the State step in to supply certain functions,” such as when “it is impossible for civil society to support initiatives on its own.” Vermeule block-quotes only this final, clarifying paragraph and treats it as the be-all-end-all of what “subsidiarity” is.


According to Vermeule, subsidiarity means that the highest public authority must be given the broadest possible control over local spheres of power. Bringing Johannes Messner to his defense, Vermeule claims that subsidiarity means that we must always “allow the highest public authority… to exercise prudential judgment about whether an exceptional situation exists.”


This is the opposite of what the Compendium states. Subsidiarity, it says, entails “negative implications that require the State to refrain from anything that would de facto restrict the existential space of the smaller essential cells of society.” Likewise, Common Good Constitutionalism knows of no centralization it does not favor, nor of any decentralization that it does not reject as “liberal” somehow. The Compendium states that subsidiarity is “opposed to certain forms of centralization.”


And, of course, Vermeule rejects the entire concept of “minimizing the abuse of power.” Subsection 187 of the compendium begins with the sentence that “The principle of subsidiarity protects people from abuses by higher-level social authority.”


An important source of the Compendium, worth mentioning here, is the landmark Non Abbiamo Bisogno, an encyclical in which Pius XI denounced “pagan worship of the State - the ‘Statolatry’ which is no less in contrast with the natural rights of the family than it is in contradiction with the supernatural rights of the Church.”


Although Vermeule claims he does not deny the existence of natural “rights,” he consistently says that the content of these rights must be entirely determined by the state. Vermeule formulates his view in this way: “it is inaccurate to say that rights were ‘defeasible’ in the classical structure. Rather more accurately would be to say that rights were determinable.”


If rights are wholly “determinable,” however, Non Abbiamo Bisogno is utterly meaningless. If the highest state authority alone determines the meaning of the “rights” enjoyed by the family and the church, then—logically—absolute obedience to the state cannot be in “contrast” or “contradiction” with the “rights” of these entities.


It is significant that, while Vermeule relies significantly on Carl Schmitt, Non Abbiamo Bisogno was written to denounce the very worldview that Schmitt represented. After Common Good Constitutionalism inspired me to read more Schmitt, I was struck by the fact that Schmitt even sounds like Vermeule, including in tone and style. In both thinkers, the Christian legal traditions of the rule of law and the separation of powers are looked down upon as paranoid, disputatious, and disorderly.


You could easily construct a challenging game of “Who Said It—Vermeule or Schmitt?” by taking sentences from Schmitt and simply replacing the word “Führerstaat” with the term “classical governance.” For example, after criticizing the “liberal” idea of the separation of powers, Schmitt boasts: “In a Führerstaat, however, legislative, executive, and judicial branches do not distrustfully control one another.” This is peak Vermeule.


I do not claim that Vermeule desires the same policy outcomes that Schmitt did. Actually, it seems far more likely that—if Vermeule had the omnipotent state power he wants to construct—he would use it to pursue bourgeois liberal goals like mandatory Covid vaccinations and banning racism. I do claim that someone who desired to use government power to murder millions of people would find nothing even mildly inconvenient or objectionable about any aspect of the structure that Vermeule wants.


Vermeule has against him the histories and prophets of the Old Testament—as a Catholic, Vermeule’s Bible contains not only Judges, 1 Samuel, and Daniel but also 1 Maccabees—as well as most theorists of classical antiquity, the medieval Christian tradition, and the modern encyclicals of his own church. Even Justinian’s Digest, which gives robust powers to the central government, is a far cry from the pure Führerstaat ideal. For example, the Digest quotes the jurist Paulus as saying that—if a magistrate exceeds his personal or subject matter jurisdiction—he may legally be “disobeyed with impunity.” There is no place for a statement like this in Vermeule. Like Schmitt, Vermeule offers a faux-reactionary but actually hyper-modernist politics that is not at home in the premodern Western tradition it claims to represent.    


Why does Vermeule’s political philosophy, or at least its Twitter incarnation, appeal to some intelligent conservatives? For one thing, conservatives are rightly tired of being scolded into playing by rules which the cultural left flouts.


To take a specific example, consider that progressives have established a monopoly over academia using widespread and unlawful discrimination against Christians. What would happen if a Republican president sought to correct this problem by ordering that Marxist faculty be cleared out of universities?


It goes without saying that many so-called “originalists”—while admitting that the left’s monopoly on academia is fundamentally illegitimate—would oppose the president’s plan on abstract procedural grounds.


In contrast, many on the right now correctly see that sweeping, revolutionary change is both necessary and justified. Vermeule’s “common good constitutionalism,” with its rhetoric of raw and total power—unlimited by anything except “the good”—may strike some conservatives as providing an intellectual framework for that revolution.  


A revolution, however, is an event—not a political system. It is a transition from one constitutional settlement to another one. A traditional revolution must end by creating a new order that, while suited to a new time, is rooted in and informed by the past.


A post-revolutionary political order cannot itself be an unstructured, permanent revolution from the top down. Instead, it must incorporate the enduring, central concepts of the premodern Western tradition which Vermeule rejects: a mixed government with separated powers, regional and local decentralization, and the rule of written law.

 

Ian Huyett is a litigation attorney and publishes academic work on law and religion and on law and technology. You can follow him on Twitter at @IanHuyett.

11 views

Comments


Get Staseos Delivered to Your Inbox

Thanks for subscribing!

Support Staseos

bottom of page