Adventures in Christian AuthoritarianismSonja DeWitt July/August 2023
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’s an approach some call “bold” and “thought-provoking” and others simply describe as “dangerous.”
Adrian Vermeule, the controversial professor of law at Harvard University, first described his judicial philosophy—common-good constitutionalism—in a May 2020 article in The Atlantic 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—a government dominated by an absolute moral authoritarianism.
Some of Vermeule’s shocking statements in that article include:
Unlike legal liberalism, common-good constitutionalism does not suffer from a horror of political domination and hierarchy, 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— . . . in a famous trinity of principles—peace, justice, and abundance.
Even more explicitly:
The Court’s jurisprudence on free speech, abortion, sexual liberties, 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—that government is forbidden to judge the quality and moral worth of public speech . . . [should]—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.1
After reading this, I couldn’t help wondering, Under Vermeule’s regime, what exactly would be left of our democratic institutions and values, our civil rights, and our civil liberties?
An Innocuous Beginning
I started reading Vermeule’s book, Common Good Constitutionalism, 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:
“In brief, the common good is, for the purposes of the constitutional lawyer, the flourishing of a well-ordered political community” (p. 18).
“I look to the precepts of legal justice in the classical law—to live honorably, to harm no one, and to give each one what is due to him in justice” (p. 18).
“[The central goods at which constitutionalism should aim] include, in a famous trinity, peace, justice, and abundance” (p. 18).
“Common good constitutionalism shares the view that the positive provisions of the ius civile [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” (p. 17).
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’t 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.
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’s book was startling.
The closest he comes to a definition of “common good” is little more than a restatement of the ordinary meaning of the phrase itself.
In brief, the common good is, for the purposes of the constitutional lawyer, the flourishing of a well-ordered political community. The common good is unitary and indivisible, not an aggregation of individual utilities (p. 18).
To be sure, the phrase “not an aggregation of individual utilities” might raise a faint alarm, but it’s not necessarily problematic.
Also in the first chapter, Vermeule makes the sweeping claim that “classical law”—which he equates with his own legal philosophy—was “deeply 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” (p. 12).
Now, that is a big contention, which requires correspondingly strong proof. So what is his proof? Well, we’ll return to that. But for now, suffice it to say there is nothing at all to support it in the first chapter.
Well, he’s setting up his foundation, I thought. The specifics will come later. So I continued reading, waiting for definitions, explanations, and clarifying examples. But I waited in vain.
Throughout most of the book Vermeule continues in the same vein, with bland generalities about “common good,” “classical law,” and “natural law.” Along the way are also credible critiques of originalism—a 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’s liberal view of morality.2
Vermeule carefully avoids discussions of the most controversial aspect of his philosophy—draconian 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 “virtual” child pornography (p. 271). Not an analysis most of us would passionately dispute.
He does, as would be expected, condemn the 2015 Supreme Court decision Obergefell v. Hodges, 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.
Occasionally, though, he does break cover. The most significant of these outbreaks is this scathing paragraph in his chapter on “living constitution” interpretations.
The progressive judge instrumentalizes the law in the service of a very particular liberationist narrative, in which “rights” are continually “expanded” 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 “liturgy of liberalism”—the 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).
I can’t help wondering what are these rights that “progressive judges” have so recklessly expanded. The rights of African Americans to vote (South Carolina v. Katzenbach), or to obtain an equal, integrated education (Brown v. Board of Education)? The right to marry someone of another race (Loving v. Virginia)? The rights of women to equal treatment under the law (Reed v. Reed) and to control when they get pregnant (Griswold v. Connecticut)?
And as for the “darkness and unreason of the traditional past,” 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’t 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?
Whose Natural Law?
It is what Vermeule carefully avoids saying, however, that is crucial to understanding his theory. Although he claims his approach is based on “classical law” and “natural law,” what he fails to say is that there is more than one theory of natural law.
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’s brand of natural law, the reader would have to have an existing knowledge of the subject and read carefully between the lines.
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’s philosophy is complex and has been interpreted in many different ways, but “medieval” and “Catholic” 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—a time the church ruled the Western world, controlled secular rulers, and enforced its theology through the law and criminal penalties. I don’t think we need to be reminded of the disastrous consequences of that combination of secular and religious power.
Here are a few representative examples of Aquinas’s conclusions that flow from his conception of natural law.
On religious liberty. Aquinas agrees in principle that unbelievers, such as Muslims and Jews, should not be forced to convert, because “to believe depends on the will.” However, believers can wage war against unbelievers to prevent them “hindering the faith.” And heretics (believers who have changed their beliefs) can be put to death.3
On adultery. 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’t be convicted.4 Of course, there’s no discussion of penalties for a man who commits adultery.
On the role of government. Aquinas states that one of the primary roles of the state is to “foster religion.”5 This is directly opposed to the democratic conception of separation of church and state. And also, that it be “helpful to discipline,” meaning that it enforces his conception of natural law.6
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.
More seriously, Vermeule explicitly equates his idea of natural law with the kind of “natural law” 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.
It’s 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 Certainly not something of which Aquinas, or Vermeule himself, would have approved!
The truth is that Thomistic natural law and the concept of natural law adopted by America’s founders are based on diametrically opposed assumptions.
In general, Thomistic natural law is based on the assumption that the good of the individual is determined by the “common good” of the community.8 That is the meaning of Vermeule’s quote, cited earlier, “The common good is unitary and indivisible, not an aggregation of individual utilities” (p. 18).
Vermeule is correct in stating that a concept of natural law underpinned America’s founding. Many people don’t realize that the majestic words of the Declaration of Independence are, in fact, a clear statement of the American founders’ conception of natural law—“We hold these truths to be self-evident, 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.”
The Declaration, with its ringing affirmation of individual rights, 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’s great leaders at every crucial crisis point in our history.9 It was affirmed by the founders and by John Quincy Adams in his Amistad argument.10 It was relied on by Abraham Lincoln in opposing slavery.11 It provided the moral foundation for the Civil War—the “new birth of freedom.”12 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 And it was invoked again as our country’s guiding authority by Martin Luther King Jr., in what could be called “the second new birth of freedom.”14
These words, based on the philosophy of the Protestant Enlightenment philosopher John Locke,15 represent a strong affirmation of individual rights and liberties, in direct opposition to Aquinas’s “the good of the community is the good of the individual” 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.
Apostle of Authoritarianism
To more fully understand Vermeule and his judicial philosophy, it’s 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 These two facts alone are sufficient to inform us regarding the underlying assumptions and the ultimate intent of Vermeule’s judicial philosophy.
In a 2018 article, “Integration From Within,” Vermeule exults in the collapse of liberalism—by 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’s demise. He likens these individuals to the biblical figures of Joseph, Daniel, Mordecai, and Esther, who rose to power within pagan governments.
In the same way, says Vermeule, agents of postliberalism may also come to occupy elite positions in today’s administrative state, where they may “have a great deal of discretion to further human dignity and the common good.” Yet, he adds: “They do not evangelize or preach with a view to bringing about the birth of an entirely new regime, from within the old.”17
This quote offers us an illuminating glimpse into Vermeule’s view of himself—a Daniel in the court of decadent liberalism. Given the legal philosophy he preaches throughout his writings, Vermeule’s 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.
The deep irony of this reference is that Joseph, Mordecai, Esther, and Daniel, far from undermining a “liberal” order of government, were struggling valiantly to save themselves and their people from absolute dictatorships—illiberal, repressive governments with no freedom of religion, and very few other freedoms, much like Vermeule’s vision of the ideal government. It would be dark comedy if it weren’t so terrifying.
1 Adrian Vermeule, “Beyond Originalism,” The Atlantic, Mar. 31, 2020.
2 See, e.g., Common Good Constitutionalism, pp. 10, 16, 45, 46.
3 Thomas Aquinas, 4 Summa Theologiae, II-II, q. 10, a. 8, c. and ad 3.
4 Thomas Aquinas, Summa Theologiae, Supplement, q. 60, art.1.
5 Ibid., q. 95, art. 3.
7 See Kurt J. Lash, ”The Second Adoption of the Establishment Clause: The Rise of the Non-Establishment Principle,” Arizona State Law Journal 27, no. 1085 (1995): 1106, 1119, 1120, 1122–1124.
8 To be fair, Aquinas explicitly states that laws will differ in different times and places, “according to the customs of the country,” but must always be in accord with his conception of natural law. See Aquinas, Summa Theologiae, Supplement, q. 95, art. 2.
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.
10 Argument of John Quincy Adams in United States v. The Amistad, 40 U.S. 518 (1841).
11 Abraham Lincoln, speech at Springfield on Dred Scott decision (1857).
12 See Lincoln’s Gettysburg Address.
13 Congressional Globe, 39th Congress, p. 429.
14 See Martin Luther King Jr.’s “I Have a Dream” speech.
15 See Brenée Goforth, “How John Locke Influenced the Declaration of Independence,” July 4, 2019, on the John Locke Foundation website.
16 See, e.g., Jason Blakely, “The Integralism of Adrian Vermeule: Not Catholic Enough.” Commonweal Magazine, Oct. 5, 2020.
17 Adrian Vermeule, “Integration From Within,” American Affairs 2, no. 1 (2018).
Article Author: Sonja DeWitt
Sonja DeWitt is a lawyer with over twenty years of experience handling cases of discrimination, including religious discrimination cases. She has been involved in political advocacy regarding religious liberty issues for several years, including meeting with the staffs of members of Congress, organizing an interfaith lobbying effort, and writing legal briefs. She received the A.T. Jones Award from the North American Religious Liberty Association for her work with religious liberty, and has been published in Liberty Magazine. She currently handles cases for federal agencies and blogs about faith, politics and social justice at voicesfromthewilderness.net.