What Happens When The Right Starts Acting Like The Left About The Constitution

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“The Republic” often alarms first-time readers. Not only is Plato’s dialogic style foreign to us, the character of Socrates makes bizarre and even wicked proposals as he outlines a supposed ideal polity, such as a communism not only of property, but also of wives and children. Many readers, including some philosophers, have taken Plato literally and seriously, and therefore condemned him as a proto-totalitarian.

Something similar seems to have happened in response to Harvard Law professor Adrian Vermeule’s recent “Beyond Originalism” article in The Atlantic. Vermeule argued for replacing originalism with “a robust, substantively conservative approach to constitutional law and interpretation … based on the principles that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.” In short, he wants conservatives to read their philosophy and policy preferences into the Constitution, rather than trying to abide by its meaning as understood when it was ratified.

That the legal left would hate this was a given, but the response from the legal right has been just as ferocious. David French called Vermeule’s ideas “Christian authoritarianism,” and writers at National Review queued up to criticize him. Even a self-described integralist writing in the American Conservative condemned Vermeule’s article.

Most of these critiques are correct. They may also miss the point.

Vermeule Demonstrates the Restraints of Originalism

As Vermeule’s critics point out at length, his program is unlikely to succeed, a point he is surely aware of, despite his occasional insistence that unexpected things can happen. It is possible the United States will become a confessing Catholic state, and it is possible philosophers might become kings or kings become philosophers. It is also possible Vermeule has become a crackpot fanatic dedicated to an improbable ideal — not the first Harvard professor to do so.

But perhaps he is less a Twitter Torquemada than a cut-rate Catholic Kierkegaard, the Dane who spent his time and money writing a series of religious and philosophical reflections under a series of pseudonyms that fooled no one. Plato created characters whose dialogue communicated more than can be said directly; Kierkegaard did something similar with his pseudonyms, but went further by becoming a character himself.

This is not to say Vermeule is insincere, but that his presentation and performance are meant to provoke and persuade beyond the explicit argument he presents. This interpretation is supported by some of the implications Varad Mehta picked up on in Vermeule’s piece, as well as Vermeule’s response to some of his critics.

Foremost among these points is that Vermeule demonstrated the legal left’s imperious approach to the Constitution more effectively than a multitude of originalist articles have. If Vermeule didn’t exist, originalists might have needed to invent him. As he sarcastically put it in his follow-up:

I am happy to inform the left-liberal critics that the piece was never actually intended to make a Dworkinian argument for reading the Constitution in light of moral principles of the common good. Rather it was intended to make a Dworkinian argument for reading the Constitution in light of moral principles of equality and freedom, as specified by the programme of the American Civil Liberties Union. … Somehow … the phrase ‘Equality and Freedom’ was everywhere replaced with ‘Common Good.’ That change inadvertently transformed the piece from a banal effort, safely mainstream within the legal academy, into a menacing harbinger of fascism.

As this acerbic commentary notes, Vermeule is simply proposing to repurpose the methodology the legal left has used for years, deploying the same approach in the service of a different moral vision. As Mehta notes, “Progressives have been embarked on a program of constitutional extremism for years. No one should be surprised to see conservatives start demanding one of their own.”

Vermeule’s enthusiastic endorsement of reading a specific moral viewpoint into the text of the Constitution shows what a right-wing version of the dominant leftist approach to the Constitution would actually be like; many on the left have accused originalism of being nothing but a cover for conservatives’ preferred policy outcomes, but Vermeule’s proposal illustrates how restrained originalists have been.

Remember That Originalism Is Defensive

At the same time, Vermeule has provided a warning to originalists of what might replace them if they go wobbly. Originalism promises a rule of law under which conservatives believe they can generally achieve their policy preferences via legitimate political means. But it may not take many betrayals by Supreme Court Chief Justice John Roberts, or by the new Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh, for a more aggressive approach to gain traction on the right.

Social conservatives in particular might conclude that the system, including elite conservative legal scholarship, is rigged against them, that “originalism” is just code for “libertarian legal theory,” and that they should just read their moral preferences into the Constitution like everyone else does.

This also reminds of the extent of the left’s judicial larceny and the impossibility of reparations for it. The left’s judicial coups have changed American culture in ways originalism cannot remedy. For example, even if the court were to vigorously uphold the government’s power to ban obscenity, would the public and its representatives favor such restrictions, or would Big Porn’s hold on something other than hearts and minds win out? Even overturning Roe and Casey would only return abortion questions to the states, many of which would voluntarily retain the abortion-on-demand regime the court had imposed on them.

This highlights that originalism is fundamentally defensive, developed in response to the revolutionary judicial assertion of the Warren and Burger courts. It may launch limited counter-attacks against the worst overreaches of the legal left, but it cannot even return to the status quo ante. This restraint is intentional, but it forces originalists to confront a perennial difficulty of conservatism, which is when and how to become counter-revolutionary.

Conservatism usually attains self-consciousness under threat and is therefore defensive. What it should do to retake the ground it has already lost is often unclear. Thus, Vermeule’s proposed common-good constitutionalism is attractive insofar as it resolves that dilemma by promising, well, everything. What couldn’t conservatives read into the Constitution if they adopted the left’s interpretive approach? But this would require conservatives to jettison their traditional mistrust of concentrating power, especially in unelected parts of government.

This unease will not be assuaged by Vermeule’s support for integralism, which is particularly unappealing to those of us who are not Catholic. To be sure, in a crisis like the Spanish Civil War, I’d rather be a second-class citizen in a Catholic dictatorship than dead at the hands of the communists, but fortunately I do not have to make that choice.

Nor is the dubious allure of integralism increased by its motley band of internet advocates. With a mix of petty feuds and performative fanaticism, integralist Twitter is often more off-putting than stimulating, though Vermeule at least sometimes has a sense of humor about it.

So what is Vermeule’s game? He’s not leading a serious challenge to originalism, let alone the broader left-liberal legal consensus. But neither is he only a Twitter gadfly like some of his fellow integralists. He is a clever man capable of intellectual depth and subtlety, particularly as a critic of mainstream theories and ideologies.

Perhaps his role is not so much a revolutionary as a jester permitted to persist in a usurper’s court, reminding the left-liberal powers-that-be of their crimes, and demonstrating to the conservative loyal opposition the limits they have accepted.

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