Common-Good Constitutionalism Is an Idea as Dangerous as They ComeRoundup
tags: originalism, law, authoritarianism, Constitutional theory
Garrett Epps is Professor of constitutional law at the University of Baltimore.
Adrian Vermeule, the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School, is hardly a marginal figure. At just over 50, he has made his mark as a brilliant but distinctly conservative theorist of administrative and constitutional law. Four years ago, he was received into the Catholic faith, and has adopted a radically conservative posture toward law and society. His chosen philosophy is called “integralism,” which calls for subordinating the state to the principles of the Catholic Church.
Tuesday on this site, in an essay titled “Beyond Originalism,” he called on conservative judges and lawyers to exploit their new ascendancy by remaking the entire country. No longer should they be content to parry the claims of liberal legalists; instead, they must, to paraphrase Vladimir Lenin, proceed to construct the integralist order.
The essay appeared on the eve of April 1, and Vermeule might be having us on. He sometimes aspires to puckishness: Witness a late-February tweet that displayed an advertisement for a conference of anti-Trump conservatives with the comment, “The very first group for the camps.” The sportive conceit here is that these “RINO” conservatives (Republican in Name Only), just like hard-core Trumpists, would one day be shipped off to detention by rampaging liberal commissars. Similarly, his positions in “Beyond Originalism” are sufficiently outrageous that charitably imagining the essay as self-parody is easy.
By contrast, I suspect that Vermeule, with admirable honesty, really is explaining the beliefs that he and others on the right have quietly held for many years. His view of the presidency, for example, echoes some parts of Attorney General Bill Barr’s authoritarian manifesto, delivered in November to an adoring federalist gathering. Let’s examine what Vermeule proposes; it may be our future.