In recent months the world has experienced heightened anxiety and crisis over climate change and COVID-19. At times of extremity, extreme ideas that have long been excluded from the public square, can make a comeback and this is what is happening in relation to the American constitution. While these extreme ideas are getting some media attention, COVID-19 is taking precedence. Still, the ideas have the potential to impact the civil and religious liberties of Americans, after COVID-19, in ways akin to the restrictions imposed by governments during the COVID-19 crisis.
Taken together these ideas represent an attempt to narrow the distance between the American government and Christianity. If implemented they would roll back the religious liberty protections in the American constitution. And as we will see theocracy is not too strong a word to use in relation to these ideas.
A recent article in The Atlantic magazine, in a series named “The Battle for the Constitution,” outlines what is at stake. It is written by Adrian Vermeule, a professor of constitutional and administrative law at Harvard University. It is entitled, “Beyond Originalism: The dominant conservative philosophy for interpreting the Constitution has served its purpose, and scholars ought to develop a more moral framework.”[1]
Vermeule defines originalism as “the view that constitutional meaning was fixed at the time of the Constitution’s enactment.” He writes,
But originalism has now outlived its utility, and has become an obstacle to the development of a robust, substantively conservative approach to constitutional law and interpretation. Such an approach—one might call it “common-good constitutionalism”—should be based upon the principle that government helps 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.
Under common-good constitutionalism, originalism would give way to authoritative rule for the common good. Vermeule describes the starting point for common-good constitutionalism,
This approach should take as its starting point substantive moral principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include 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.
The common good and just and well-ordered societies are codes for a Roman Catholic vision of the American future, as I showed in It’s Sunday in America. Adrian Vermeule, a 2016 convert to Catholicism, is merely the latest Catholic intellectual to promote the church’s conception of the common good and ordered liberty. Yet the agenda is truly radical, as Vermeule outlines it,
This is not the occasion to offer a bill of particulars about how constitutional law might change under this approach, but a few broad strokes can be sketched. The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. 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. 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.
The push back has been vigorous. Garrett Epps, professor of constitutional law at the University of Baltimore, said, “This man’s argument really is for authoritarian extremism.”[2] “His chosen philosophy is called “integralism,” which calls for subordinating the state to the principles of the Catholic Church,” Epps writes.
Randy Barnett, professor of legal theory at the Georgetown University Law Center, is equally concerned. He too describes Vermeule’s integralism as, “an argument for the temporal power of the state to be subordinated to the spiritual power of the Church.”[3] Barnett concludes,
There is nothing subtle or surreptitious about the challenge common-good constitutionalism poses to originalism. This wolf comes as a wolf.
Dan McLaughlin, writing in National Review, is scathing in his assessment of Vermeule’s arguments,
Vermeule makes three separate arguments. First, he argues candidly that courts should pursue their own vision of the common good rather than focus on applying the Constitution as written. Second, he advances a particular vision of the common good, which values order, authority, and virtue above individual liberty. Third, he makes a political argument that it is now possible to launch this project and expect it to produce the common good he envisions. The first and third arguments are so wrong that the second is irrelevant.[4]
Later, McLaughlin focuses on Vermeule’s departure from “the rule of written law” and his reliance on “immemorial” traditions of law,
Common-good constitutionalism” is not law at all, and certainly not constitutional law, because it does not depend on what the law actually says. It is not constrained by any limits; it can pick and choose means and ends as it likes.
It is not difficult to see that the acceptance of Vermeule’s common-good constitutionalism would dramatically change religious liberty in America. Chillingly, McLaughlin suggests that it is Vermeule’s desire “to effect something like a traditional-Catholic theocracy.” Common-good constitutionalism is certainly not the status quo.
But it is not as if Vermeule is a lone voice. In April 2019, Richard Garnett, Professor of Law at the University of Notre Dame, made an argument that, based upon the 1965 Declaration on Religious Freedom, issued at the close of the Second Vatican Council, a liberal society may favor one religion over another.[5] In his five-step argument, Garnett suggested that the first three steps were “conventional” but that the final two steps, “might raise a few First Amendment eyebrows.” Garnett’s reason for suggesting this is that, “They rub against popular understandings of church-state “separation.”
Then in July 2019 Gunnar Gundersen suggested that government reordering of the public square was consistent with the founding of the United States of America and the message of the Declaration of Independence.[6] Gundersen claimed that “America is a Christian Country,” based upon a Supreme Court decision in 1892.
There are two ways to subvert a constitution; challenge it directly or introduce ideas into the conversation that delegitimize it over time. If nothing is done decisively to defend that constitution, erosion of the principles that undergird it will inevitably take place. Richard Garnett and Gunnar Gundersen are exemplars of the softly, softly approach. But Vermeule has taken the gloves off. Without a decisive political repudiation of his challenge, his challenge is destined to prevail eventually.
COVID-19 is a serious but probably temporary challenge to American life. Vermeule’s common-good constitutionalism poses more lasting dangers. It should not escape our attention that Vermeule has chosen a time to go public when America is in lockdown on common-good grounds. If the Constitution ever needed active friends, it is now.
[1] Vermeule, Adrian. “Beyond Originalism: The dominant conservative philosophy for interpreting the Constitution has served its purpose, and scholars ought to develop a more moral framework.” The Atlantic. March 31, 2020. https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/?utm_source=atl&utm_medium=email&utm_campaign=share
[2] Epps, Garrett. “Common-Good Constitutionalism Is an Idea as Dangerous as They Come: It’s an argument for authoritarian extremism.” The Atlantic. April 3, 2020.
[3] Barnett, Randy. “Common-Good Constitutionalism Reveals the Dangers of Any Non-originalist Approach to the Constitution: This wolf comes as a wolf.” The Atlantic. April 3, 2020.
[4] McLaughlin, Dan. “‘Common-Good Constitutionalism’ Is No Alternative to Originalism.” National Review. April 2, 2020.
www.nationalreview.com/2020/04/common-good-constitutionalism-is-no-alternative-to-originalism/
[5] Garnett, Richard. “Mild And Equitable Establishments: Why a Liberal Society May Favor One Religion Over Another.” First Things, April 2019.
https://www.firstthings.com/article/2019/04/mild-and-equitable-establishments
[6] Gundersen, Gunnar. “Reordering the Public Square.” First Things. July 22, 2019.
https://www.firstthings.com/web-exclusives/2019/07/reordering-the-public-square
