By Kevin D. Williamson
Tuesday, April 07, 2020
I suppose that for the rest of my life my name will be
invoked every time The Atlantic publishes something controversial, as
any good magazine does from time to time, or something dopey, as even the best
magazines occasionally do, despite the efforts of their editors.
And so it has been with the case of Adrian Vermeule, the
Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School and
one of those Catholic “integralists” we keep hearing about, a recent convert
who recently took to the pages of The Atlantic to offer an argument that
conservatives should abandon their “originalist” jurisprudence and, with it,
“legal liberalism” in toto in favor of a jurisprudence of right-wing
authoritarianism in the prescribed Catholic-integralist mode, one that “is not
tethered to particular written instruments of civil law or the will of the
legislators who created them,” one that does not understand “liberty as an
abstract object of quasi-religious devotion,” one that “does not suffer from a
horror of political domination,” etc.
He engages in a bit of rhetorical base-stealing that
already is tedious and familiar, calling his program “common-good
constitutionalism,” cf. Senator Marco Rubio’s “common-good capitalism,” Sohrab
Amari’s call “to fight the culture war with the aim of defeating the enemy and
enjoying the spoils in the form of a public square re-ordered to the common
good and ultimately the Highest Good,” et cetera ad nauseam.
Predictably, the usual people made the usual complaint —
not mainly about Professor Vermeule’s views but about The Atlantic’s
decision to publish them. This is how we talk about these things now: Professor
Vermeule’s ideas must be bad, because Professor Vermeule is bad, which he must
be, because only a bad person would hold such ideas. The conversation takes
the form not of an argument but of an indictment, as is typical of our times.
Professor Vermeule’s offenses include making jokes about making Mass attendance
obligatory and celebrating Francisco Franco’s policy of arresting Communists
and putting them on chain gangs as a form of rehabilitation through forced
labor. I wrote to Professor Vermeule to ask about these, and he answered — and
let me just say directly here that I do not believe him, even a little bit — “I
don’t know what tweets you’re referring to.” He then suggested I should “find a
better topic.” The pettiness of our new right-wing authoritarians is as
reliable as the rotation of the Earth, if my fellow Catholics will forgive me
for bringing up that sore subject.
Professor Vermeule’s holding certain views and
communicating them in a journal that American progressives regard, not without
some reason, as their own preserve of polite opinion is in these sanctimonious
times to be understood as an offense against public morality. I suppose that
Professor Vermeule must smile about that: Bringing back formal sanctions for
offenses against public morality is central to the agenda of the sanctimonious
anti-liberal project that he seeks to advance. I trust the irony is not lost on
him. Reviving comstockery is a very amusing project for a man named Cornelius
Adrian Comstock Vermeule.
Professor Vermeule is an étatist in the most
direct sense, who describes his political project as an effort “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.”
[L]aw is parental, a wise teacher
and an inculcator of good habits. Just authority in rulers can be exercised for
the good of subjects, if necessary even against the subjects’ own
perceptions of what is best for them — perceptions that may change over
time anyway, as the law teaches, habituates, and re-forms them. Subjects will
come to thank the ruler whose legal strictures, possibly experienced at first
as coercive, encourage subjects to form more authentic desires for the
individual and common goods, better
habits, and beliefs that better track and promote communal well-being.
I suppose there is an ethical objection to be made to the
extent that Harvard professors have a positive professional obligation to try
very hard not to write stupid things.
It seems too elementary to need to be said, but: We write
down laws for a reason. And if we are not to be bound by what the laws actually
say, by what we have written down, then there is no law in any
meaningful sense. There is only power and rhetoric — which, in fact, is the
main contention of “critical legal theory,” which is founded on the familiar
Marxian notion that everything is, when seen straight on, about the eternal
class struggle. Critical theorists just dig out the ugly truth behind the
façade of liberalism, democracy, human rights, whatever. I believe that
Professor Vermeule has enough wit to understand that he and others like him
have simply taken the intellectual apparatus of progressivism, with its
contempt for individual liberties and its faith in the magisterial state, and
proposed filling that box with right-wingery rather than left-wingery, albeit
right-wingery of the anti-capitalist and anti-liberal kind: Not only will we
have to do away with “libertarian assumptions central to free-speech law” but
also “libertarian conceptions of property rights.” Another way of saying
“libertarian conceptions of free speech and property rights” would be “free
speech and property rights.”
This is a familiar kind of silliness, even sillier than
Professor Vermeule’s dreaming of a fantastical “Empire
of Our Lady of Guadalupe” accompanied by “the world government required by
natural law.” That is not politics — that is a right-wing Catholic fantasy
role-playing game, Dungeons & Dragons but slightly dorkier and much more
sanctimonious.
But the less-exotic silliness is more immediately
relevant. That silliness has a familiar source: It is the fact that specialists
reliably overestimate the importance of their own fields. Lawyers believe that
the way to reform the world is to change the law; it was a poet who thoughts
poets “the unacknowledged legislators of the world”; the self-aggrandizing
character of journalists is well-known; scientists often take a utopian view of
science and erroneously believe that science can supplant politics, relieving
us of the burden of disagreement; members of Congress, who spend their time
sitting on committees, reflexively propose to solve problems by convening a new
committee.
The law is important and powerful — as are science,
poetry, etc. But it is not powerful in the way Professor Vermeule imagines it
to be. He gets the arrow of causality backward: We do not have abortion and
no-fault divorce because the law professors forced them on the people against
their will; we have them because the people demanded them — they were not
taught, habituated, or formed by the law, but something closer to the opposite
happened. (It is worth keeping in mind that no-fault divorce and abortion
rights were brought into force in no small part by the efforts of the nation’s
most right-wing governor at the time, Ronald Reagan of California.) The law did
not transform the people, even when it was construed, as in Roe, in a
way “that it is not tethered to particular written instruments of civil law or
the will of the legislators who created them,” i.e., when the judges impose
their own moral preferences on the nation under color of law. The people transformed
the law. The notion that an authoritarian state, unconstrained by liberalism
and “libertarian” notions of rights, is going to reflect the moral vision of .
. . a few dozen crackpot Catholic intellectuals, mostly within 125 miles of the
Acela tracks, is preposterous.
Professor Vermeule is practicing a kind of Ivy League
Trumpism. He derides the “defensive crouch” of originalism and demands instead
a more forceful approach “that refuses any longer to play within the terms set
by legal liberalism.” That is Harvard Law for “He
fights!” (Again, more role-playing games.) But the American Constitution
is a defensive document — it offers defense against the princely powers that
Professor Vermeule would unleash, and defense against ochlocracy, the mob
politics that would in fact dominate the magisterial state Professor
Vermeule imagines taking its direction from the Magisterium. Not that there is
any mention of the Catholic hierarchy in Professor Vermeule’s essay — Pope
Francis seems to have cured the Catholic Right of its ultramontanism, leaving
the Holy Father with only two more miracles to go for sainthood.
But there are miracles and there are miracles. That
“defensive crouch” is the best thing we’ve got going — long live the defensive
crouch in all its expressions: the Bill of Rights, federalism, separation of
powers, the rule of law rather than the rule of overexcited Catholic converts .
. . .
Professor Vermeule calls for a “substantive” right-wing
jurisprudence, as opposed to a jurisprudence of process. This points to
one of the fundamental differences between the classical-liberal tradition and
the progressive position. For the classical liberal (the American
conservative), justice as a legal matter is mostly a question of process: The
parties are given their day in court, they present their arguments before an
honest judge or jury, the law is followed, and a decision is rendered.
Hence Robert Bork’s rejection of “substantive due
process,” which he rightly considered a contradiction in terms, a license for
judicial activism “wholly without limits, as well as without legitimacy.”
In that famous flag-burning case, Justice Antonin Scalia
did not rule according to what he wanted — to punish the flag-burners — but
according to what the law says. The “substantive” model of justice says, Damn
procedure and the letter of the law, I have things that I want, those things
are good and just, and you must give them to me!
For progressives, the legal question is secondary to the
political question: They will have their abortion rights, or their
constitutional gay-marriage mandate, and they will take it on whatever terms
they can get, simply back-filling in whatever pretextual legal “reasoning,” if
you can call it that, serves for the moment. “Substantive” conservative
jurisprudence is the same bad-faith model with a different policy agenda.
That is how advocates go about their business, of course:
The defense and the prosecution both know what verdict they want when they go
into court. What progressives — and Professor Vermeule — propose is to have
judges take on the same role: Pick a side and put down on paper whatever
hocus-pocus serves. That is why progressives fight tooth-and-claw to keep
non-progressives off the Supreme Court — not because progressives are afraid
that these judges will not give them a fair reading of the law as it actually
is written but because they are terrified by the prospect that they will do
exactly that. To reduce judges to the role of mere political factota undermines
the idea of an independent judiciary and with that the possibility of
responsible self-government. That kind of judicial politics already has done
terrible damage to our republic and to the legitimacy of the very state that
Professor Vermeule et al. would seek to aggrandize.
What Professor Vermeule is offering is not a philosophy
of law — it is a temper tantrum: “I want!
I want! I want!”
No, no, no.
No comments:
Post a Comment