"To work for the common good is the greatest creed." (Woodrow Wilson)
Adrian Vermeule—former law clerk for SCOTUS Justice Antonin Scalia and for Judge David Sentelle of the U.S. Court of Appeals—teaches law at Harvard. In a highly controversial essay at The Atlantic, he says that we need a new “common-good” interpretation of the U.S. Constitution; fortunately, he also happens to know what the “common good” entails, so there won’t be any need for interminable debate over what it means.
In his essay, Vermeule outlines the guiding common-good principles he wants “read into the majestic generalities and ambiguities of the written Constitution”:
respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality, and that the promotion of morality is a core and legitimate function of authority. Such principles promote the common good and make for a just and well-ordered society.
Bagging two birds with one stone, Vermeule urges the rejection of moral relativism and cultural pluralism, each a longstanding bete noire of the Right:
The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should 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, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax.
Common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule. The state is to be entrusted with the authority to protect the populace from the vagaries and injustices of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment. Unions, guilds and crafts, cities and localities, and other solidaristic associations will benefit from the presumptive favor of the law, as will the traditional family; in virtue of subsidiarity, the aim of rule will be not to displace these associations, but to help them function well. Elaborating on the common-good principle that no constitutional right to refuse vaccination exists, constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private “rights.” Thus the state will enjoy authority to curb the social and economic pretensions of the urban-gentry liberals who so often place their own satisfactions (financial and sexual) and the good of their class or social milieu above the common good.
Professor Vermeule will no doubt take it as proof of the soundness of his proposal that he will receive—and is already receiving—vociferous criticism from both the political Left and the political Right. The latter will accuse him of trying to turn the government into a monstrous social-engineering enterprise, while the former will accuse him of abetting the authoritarian streak in American politics and the theocratic tendencies of the religious Right. Eric Levitz, at New York, characterizes Vermeule as wanting judges “to reinterpret the U.S. Constitution as a charter demanding the subjugation of infidels to ‘rulers’ who share all of Adrian Vermeule’s views on God and good government”; whereas conservative commentator Michael Brendan Dougherty, while not entirely at odds with Vermeule’s proposal, likens it to garden-variety Progressivism, which Dougherty dislikes, in its reliance on government to impose its views of the common good.
According to my crack research team at Wikipedia, Professor Vermeule, a convert to Catholicism, has been known as an advocate of something called “integralism,” which it explains as:
“A Roman Catholic political doctrine which calls for the abolition of the division between church and state, in order that the resulting theocratic state can promote a religiously-determined "Highest Good" in place of the personal autonomy of a liberal democracy. Their ideal is to create this new confessional Catholic regime through "strategic raillement", or transformation from within institutions and bureaucracies, rather than by winning elections. The groundwork for a full integralist regime would then be in place when liberal democracy dies. The new state would ‘exercise coercion over baptized citizens in a manner different from non-baptized citizens’.”
Such advocacy explains why Eric Levitz accuses Vermeule of trying to sneak a Catholic theocracy into America disguised as “common-good constitutionalism”. While Rod Dreher hopes to lead the Christian faithful into quasi-Benedictine exile, Vermeule wants to baptize the government, especially the presidency, and anoint it an instrument of God’s will. The fact that our current Supreme Court includes five members—a voting majority—of the Catholic faith may give Vermuele hope that his proposal can be enacted: with no constitutional amendment even required, the justices can simply apply common-good principles to arrive at godly verdicts on the cases before them.
As things stand, I don’t think Professor Vermeule’s ideas will gain much traction; but if you ever happen to see his name floated for the federal judiciary, please sound the alarm. I’m all for things like the common good, solidarity, and subsidiarity; but I’d rather not have them spelled out for me and enforced by a government claiming not just popular support but divine sanction.
https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/
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