The Supreme Court’s decision last week in the Wisconsin election case precipitated a spate of commentary highlighting the Republican party’s efforts to limit access to the vote and its increasingly anti-democratic posture. In that decision, five conservative justices refused to extend the deadline for casting absentee ballots in the middle of the pandemic.
That decision together with Republican acquiescence in President Trump’s frequent attacks on the press and the judiciary as well as his descriptions of elections whose results he dislikes as fraudulent, suggest that the party is increasingly comfortable with authoritarianism. Yet neither President Trump nor his ideological allies on the Court or elsewhere have openly articulated an authoritarian governing philosophy.
All that changed with the March 31 publication of Harvard Law Professor Adrian Vermeule’s essay “Beyond Originalism.”
Because this article was published in a public, not academic, venue, it spoke to a wide readership. It drew immediate responses and stinging criticism from the political left and also from traditional, never-Trump conservatives. And justly so.
However, these criticisms underestimated the significance of Vermeule’s argument by treating it as just another move in ongoing debates over constitutional interpretation. It is in truth the clearest and boldest argument for authoritarian rule in the United States offered since Donald Trump’s election.
Like a modern-day Machiavelli, Vermeule offers advice to the governing class and lays out a theory of governance he calls “common-good constitutionalism.”
Vermeule, who clerked for the late Supreme Court Justice Antonin Scalia, argues that America’s national government “should 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.”
Vermeule’s elevation of the “common good” above individual goods is antithetical to freedom, pluralism, and democracy. It is out of step with the long-held American view that people should be free to choose their own idea of the good life and the government should not favor one or another of those choices. It also is incompatible with respect for cultural difference and with the democratic belief that the people direct the government, not vice versa.
Moreover, instead of a government whose separation of powers and checks and balances have long been regarded as a bulwark against tyranny and, as James Madison wrote in Federalist 51, “essential to the preservation of liberty,” Vermeule unapologetically calls for “strong rule.” Constraints on power, he writes “are good only derivatively, insofar as they contribute to the common good.”
And lest anyone misunderstand him, Vermeule says, “Common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy.” The aim of such an arrangement of power is “not to maximize individual autonomy or to minimize the abuse of power…, but instead to ensure that the ruler has the power needed to rule well.”
Vermeule argues that only “substantive moral principles…conduce to the common good.” These principles include “respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; …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.”
Remarkably, throughout his essay he refers to government officials, whether elected or not, as “rulers.” When he does not use the language of ruling he chooses a synonym—power. The common good, in whose name rulers should act, requires that they must have the power needed to act decisively and the population, though it may not like it, must defer to them and the power they wield. We must, Vermeule writes, “afford broad scope for rulers to promote—peace, justice, and abundance.” Entirely absent from his list are freedom and equality.
Antecedents of “common-good constitutionalism” and its call for a powerful, centralized state can be found in various places, including early American disagreements between Alexander Hamilton and James Madison about the wisdom of centralized, governmental power. Hamilton advocated a strong national government, but Madison was deeply suspicious.
Elements of Vermeule’s position also appear in debates between liberals and so-called “called “civic republicans” who, drawing on philosophical traditions going back to Aristotle, have long held that government should take as its aim the promotion of civic virtue and patriotism.
Some antecedents even can be found in Franklin Delano Roosevelt’s New Deal with, what law professor Cass Sunstein calls, its “rejection of the original constitutional commitment to checks and balances in favor of independent and insulated regulatory administration.”
That there are precedents for Vermeule’s views does not make them correct, but it does suggest that they will find resonance with some thinkers and leaders. In addition, his “common-good constitutionalism” may find a receptive audience among the public as well given mounting evidence of America’s democratic disillusionment and the prospect of lasting dangers and insecurities brought about by the current global pandemic. As Vermeule puts it, “In this time…the need for such an approach is all the greater, as it has become clear that a just governing order must have ample power to cope with large-scale crises of public health and well-being.”
Paradoxically, Vermeule may have done a real service by bringing the conservative embrace of authoritarianism out of the shadows and putting opposition to freedom and democracy in the United States on full-on display. His essay shows just how high the stakes are for all Americans. Despite its avowed purpose, it should remind us as this country comes to terms with the current disaster that the creativity of a free people, limited only by their imagination, is needed more than ever.
