Baptizing the State – Vermeule’s Common Good

by | 23 May 2022

In April, Vanity Fair published an article by James Pogue on the ‘New Right’, a new mood in conservative politics in the US. The general idea is a break with neoliberal capitalism towards ‘a more economically populist, culturally conservative, assertively nationalist direction’. Within this broad spectrum there are differences – the ‘neoreactionaries’, ‘accelerationists’, the ‘heterodox’, the ‘tradcaths’, and ‘post-left’ podcasters and bloggers. These are all essentially critical of the dominant liberal ideology of the present. As Pogue puts it, ‘one point shapes all of it: It is a project to overthrow the thrust of progress, at least such as liberals understand the word.’ 

The common thread amongst this loosely defined media ecosystem – made up of bloggers, podcasters, tweeters and so on – is that neoliberal globalisation, transnational liberal institutions, and planetary-scale tech platforms have produced a dystopian order devoid of meaning and truth. Pogue’s article explains the growing influence of Curtis Yarvin, also known as Mencius Moldberg, amongst what used to be called the neoreactionary (NRx) tendency, but is now the more diffuse New Right. It also highlights the financial involvement of Peter Thiel, the tech billionaire famous for backing Donald Trump’s candidacy. Thiel has gravitated away from hyper-libertarian capitalism to the populist nationalism of the New Right movement, and who is currently backing JD Vance’s candidacy in Ohio for the November US Senate elections. Yarvin and those drawn to his ideas – those who are red-pilled – are opposed to ‘the Regime’, or ‘the Cathedral’, the moniker for the neoliberal technocratic order of elite think-tanks, political managers, and media personalities that benefit from, and compete for prestige within, the ideological apparatus of the status quo. As they are not interested in governing for the good of American people – which in Yarvin’s highly racialised world view means white Americans – they must be replaced with a nationalist dictatorship, an entirely different constitutional order imposed through an elite take-over of institutions, which could happen, in Vance’s view, on the back of the re-election of Donald Trump in 2024. 

This is the context for Common Good Constitutionalism, a book by Adrian Vermeule, Ralph S. Tyler Professor of Constitutional Law at Harvard Law School. Vermeule, like JD Vance and others who associate themselves with the New Right, is a convert to Catholicism, and advocates political strategy based on Catholic doctrine. To that end, Vermeule advances an theory of integralism, proposing it as a constitutional model, and expressly tying it to the New Right in an article for Compact magazine. Vermeule writes: 

‘The New Right isn’t identical with Trumpism, and it is internally diverse and to some degree conflicted; it includes strands such as so-called national conservatism, a traditionalist Red Toryism or Blue Labourism and political Catholicism. These sub-movements often disagree, but they broadly converge on the ideas that government isn’t the only possible enemy; that “private” corporate power, tech monopolies, banks engaged in ideological policing of financial access, woke universities, and other nongovernmental bodies are at least as worrisome as overweening state power; that widespread impoverishment, immiseration, family breakdown, sexual adventurism, overdosing, environmental degradation, and spiritual anomie might be problematic, and that public action can do something about these crises; and generally that public authority is right and just when devoted to the common good, the classical conception of the proper purpose of government. This last strand of thought has become so pronounced that many now refer to “common-good conservatism.”’

This makes sense of the alliance between elements of the left-critical tradition and the far right, even fascist elements of the New Right. Put briefly, the book has two main elements: a critique of liberal and conservative judicial positivism in the jurisprudence of the US Supreme Court, a critique of pluralist liberal democracy and individual freedom as an end in itself, and the outline proposal for transposing Catholic social doctrine and elements of the natural law theory of Thomas of Aquinas into an expressly ‘postliberal order’. As Vermeule has stated quite clearly

‘it is a matter of finding a strategic position from which to sear the liberal faith with hot irons, to defeat and capture the hearts and minds of liberal agents, to take over the institutions of the old order that liberalism has itself prepared and to turn them to the promotion of human dignity and the common good.’

The idea of ‘common good constitutionalism’ is rooted in what Vermeule calls the classical legal tradition, abbreviated to CLT. For the purposes of administrative and constitutional law, the ‘temporal common good’ (bonum commune) is: 

‘(1) the structural political, economic, and social conditions that allow communities to live in accordance with the precepts of legal justice, combined with (2) the injunction that all official action should be ordered to the community’s attainment of those precepts, subject to the understanding that (3) the common good is not the sum of individual goods, but the indivisible good of a community ordered to justice, belonging jointly to all and severally to each.’ (30). 

In other words, the measure of legitimacy that should apply to all governmental action, and legal evaluation thereof, concerns the attainment of the necessary conditions for realising the common good in a defined community. Drawing on the ragion di stato tradition that he attributes to Giovanni Botero, Vermeule holds that the common good consists of a kind of trinitarian knot of ‘justice, peace and abundance’, each of which is both a condition and consequence of the others. These values he finds in various treaties and statutes, including the list of justifications for legitimate state interference with qualified rights (such as privacy and family life, freedom of thought, conscience and religion, and freedom of expression) found in the European Convention of Human Rights (see, respectively, Articles 8(2), 9(2), 10(2)). (31)

The book then offers examples of these values as manifested in American constitutional and administrative law to show that where administrative government has required justification against libertarian, small-government challenges based on the US Constitution, courts have relied on various formulations of the public good to justify the necessity and rightness of governmental power to the growth and happiness of the community, and indeed that it underpins the preamble to the Constitution. (32-39) Vermeule argues that the resources for American judges to adopt a ‘common good’ approach can be located within the history of American jurisprudence, and therefore justifiable related to the existing American order. Principles derived from the ius commune and ius gentium, key doctrinal theories derived from natural, already exist within US common law as latent resources that could be reactivated today (Chapter 2: The Classical Legal Tradition in America). He dismisses both ‘progressivism’ and ‘originalist-positivism’, the broadly defined liberal and conservative approaches currently hegemonic in the American legal order, as creatures of the post-Hobbesian, Lockean inheritance. 

But this is by no means a project aimed at judicial empowerment. The task of determination – that is, of deciding on the specificities of what the common good entails in a concrete situation – falls primarily to the authority of the executive and legislature. They must be oriented to the common good, and the courts must in turn recognise their legitimate authority to make authoritative determinations. Only where an institution acts ultra vires its competence, or in an unreasoned, arbitrary manner, or where its actions have no ‘imaginable public purpose’, does an authority act outside of the law. Common good constitutionalism thus implies a smaller role for judicial interpretation of substantive questions of justice than contemporary liberal judicial approaches. Judicial deference to the determinations made by administrative agencies thus arises not from positive constitutional procedural rules, but flows from the higher order of substantive good that the state exists to promote (151-154). Similarly, the theory does not permit judges to overturn positive legal ordinances in the name of natural rights or natural justice. Rather it is a mode of interpretation that is oriented to the broader structure of common good as justification: where judges are required to interpret the correct meaning of a statute, precedent, or constitutional principle in ‘hard cases’, they should do so in a manner oriented to the common good, rather than towards other values such as individual liberty, textual ‘originalism’, or the judge’s personal concept of what social and cultural norms should apply. 

Vermeule writes that a range of institutional orders can theoretically be oriented to the realisation of the common good, and therefore considered just. (47) It follows that any order not oriented to the common good is tyrannical. There can be a role for democracy in such orders, not because the will of the individual is the locus of natural political rights as presupposed by liberal social contract theorists, but because it allows the expression of consensus (or acclamation of the leader), and this makes for more effective government. Democratic forums are necessary, because participation in the community is a key element of human flourishing and dignity, but democracy is empowered only insofar as it is oriented towards realising the common good. Legislatures need not be democratically elected as democratic consultations can comfortably co-exist with aristocratic rule. Neither the measure of legitimacy nor of abuse of power turn on formal institutional designs, nor on the abstract rights of citizens. (47-51). There is no place for pluralism here. Different ways of life are tolerated only insofar as they do not conflict with the core determination of the common good – which is, as we have seen, anti-liberal, anti-pluralist, and in Vermeule’s ideal situation, based on Catholic social doctrine.

The question of the abuse of power here is similarly not limited to strict positivist rules of public law. Private actors, corporations or individuals, may be challenged in law if they abuse their economic power and freedoms. Judges may be held to have abused their powers of review by limiting government action in the name of the good; in a federal system, state or local governments may abuse their power by resisting federal determinations of the good; and national or federal government may abuse its power through non-intervention into situations where it is required for the good. (50-51) Indeed, governance as such should be organised around the principle of ‘subsidiarity’, a key principleof the Catholic Church’s social doctrine. Under ‘subsidiarity’, society is composed of ‘cells’, units of organisation and authority that are ordered hierarchically from the individual to the community and associations, to local or regional institutions, up to the ‘superior’ order of the state (or empire). Horizontally, there are ‘lower-order’ societies that are, in sociological terminology, functionally differentiated and essentially equal in authority. Subsidiarity holds that life should be managed at the lowest possible levels of society, so that individuals grow and flourish within their communities. This principle is spelled out more clearly at paragraphs 185-186 of the Compendium of the Social Doctrine of the Catholic Church.

In this connection, the figure of Carl Schmitt who has been haunting the book inevitably appears. The hierarchical order of subsidiarity inevitably demands occasional interventions from the higher authority into the affairs of the lower orders. The state’s full power may be operationalised to concretely enforce or realise the ‘positive duties to come to the aid of – provide subsidium to – jurisdictions, institutions, societies, and corporations that are failing to carry out their work in an overall social scheme that serves the common good.’ (155) If and when such a failure happens, when the common good faces a crisis, the ordinary operation of administrative law is suspended, and a state of exception pertains. The word ‘corporation’ here includes family, locality, and professional associations – the family being the ‘vital cell’ of society in the Compendium

The declaration of the exception thus mobilises ‘help’ (subsidium – a term for a Roman military reserve, taken up in the social doctrine of the Church) which has both a positive power to intervene when necessary to ensure the proper functioning of the laws, and a positive duty to refrain when unnecessary. (157-158) It mirrors what Schmitt called the commissarial dictatorship, an idea rooted in the Roman dictatorship, also found at paragraphs 187 and 188 of the Compendium of the Social Doctrine of the Catholic Church. According to the Compendium, such an ‘institutional substitution must not continue any longer than is absolutely necessary since justification for such intervention is found only in the exceptional nature of the situation.’ 

Famously, Schmitt associated true sovereignty with the power to suspend the law in an emergency. In Vermeule’s book, the exception is a question for determination by the ‘highest public authority’. When invoked, it takes on the ‘strength of a giant’. Law might offer ways to ‘temper the exercise of that strength with prudence and self-restraint’, but the nature of exceptional powers is such that the criteria of the decision to declare the exception cannot be codified in advance. (164) It follows that there can be no individual rights that trump the highest authority of the state, or, in Schmitt’s terms, no rule can constrain the properly ‘political’ sovereign decision. Rights are not to be ‘balanced’ proportionately against state authority in all cases. Rights, like democratic participation itself, are derived from, and justified in relation to, participation in the common good. (165-167) In the US, this means freedom of speech, obscenity laws, and even blasphemy laws must be redefined (167-170). On the other hand, stewardship of the environment in the name of the common good – and in the name of future generations – means greatly broaden the scope of standing in relation to protection of the planet. (176-178). Everything flows from and refers itself to the good of the community – and this is the connection to the ‘critique’ of neoliberalism from the red-pilled New Right, which has a reasonably clear idea of the ‘community’ whose good it would defend. 

David Dyzenhaus has twice published forceful critiques of Vermeule’s project, warning of the consequences of following the example of Carl Schmitt, available here and here. Elsewhere, moderate conservative American jurists have pointed out the authoritarianism and implicitly anti-pluralist nationalist tone. 

For critical scholars, and the left more generally, there is space here only to issue a reminder that alternatives to the neoliberal order do not lie only to the left. In the face of multiple political crises – ecological, financial, epidemiological – we inevitably encounter the desire for some radical authority structure to emerge, one that could take away from us the problem of living together ethically, of letting people live freely to determine for themselves what they want, and how to live it. We must restate and re-engage with the problem of the radical freedom: that there is no big Other, no external agency that determines the good, no return to God or the nation that would not be a mere apologia for brute power and the suppression of difference. 

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