Schmitt, Vermeule, and all that (again)

It is a familiar fact from contemporary political science that in the wider population of contemporary liberal democracies the bottom right, cosmopolitan quadrant is mostly empty in a fairly standard four compass political spectrum (see picture below this post). This is obscured by the fact that this quadrant is more popular among the educated and wealthy (who shape public policy).

All evidence suggests that among university professors the top right quadrant is not especially popular. Many of my friends assume that the Harvard law professor, Adrian Vermeule (and scion of a distinguished academic family), is firmly located there. This is the fourth (recall here; here; and here) in an open-ended series of posts prompted by Adrian Vermeule’s (2022) Common Good Constitutionalism (Polity). If Vermeule’s views are located in the upper right quadrant (I return to that below) that also means that he is willing to promote social goals that are highly popular among old-fashioned, progressive welfare state liberals (which remains highly popular among university professors, although I suspect more are drifting toward democratic socialism). I mention this because I suspect lots of people may come to see Vermeule’s program as tactically useful.

For example, Vermeule thinks that environmental protection is a part of the common good, and he endorses the idea (promoted by the Biden administration) that “the courts ought to recognize the broad principle of public trust and environmental stewardship as a “relevant factor” in any administrative law case.” (p. 178) In addition, unlike, say, many libertarians Vermeule applauds the administrative state’s regulation of business (if this regulation is non-arbitrary and follows procedure in the service of common good). Also, He clearly thinks the state serves the common good by being a countervailing power to the way say “corporate power” contributes to climate change and natural disasters. (p. 37) I have lots of academic friends who would prioritize this part of Vermeule’s program.

One more example: while Vermeule repeatedly situates himself against legal philosophies centered on protection of autonomy and individual rights, his fondness for administrative and legal procedure is formally akin to Rawlsian procedural justice. They do differ on what counts as just. (I don’t mean to suggest this is wholly surprising: Vermeule repeteadly himself presents himself as a right leaning follower of Dworkin.)

Now, there is a further non-trivial commonality with the Rawlsian in Common Good Constitutionalism, the political process is black-boxed. Throughout the book, Vermeule advocates great deference to the administrative and legislative branch provided that law promotes and constitutes “reasoned ordering to the common good.” (p. 1—variants of this phrase recur throughout the book). Because Vermeule refuses to look at the process that generates law — ius and lex are, as it were, immaculately conceived dropping from the heavens —, he can be theoretically rather indifferent about the political structure in which the common good is pursued.

As an aside, in a recent blog-post, Kevin Vallier, distinguishes “between two types of integralist intellectuals: theorists and strategists. Theorists defend the integralist ideal, while strategists pursue it.” He classifies Vermeule among the strategists. And that fits my argument so far. But it is worth noting that in his (2022) book, Vermeule does defend the integralist ideal in two indirect ways: first, by repeatedly criticizing alternative ideals (especially ones that are liberal-individualist and originalist in character). Second, by suggesting that common good constitutionalism is not just compatible with the U.S. constitution, but involve a restoration of the legal and (de facto) political practice of most of the US’s existence.

Now, as the use of ‘integralism’ suggests, lurking in the background are questions of church and supernatural authority (see here for Kevin’s attempt at definition). Vermeule avoids the term in the book, even though he repeatedly cites pieces from Ius & Iustitium (to which he also regularly contributes). His religious views are not exactly hidden: for example, in a endnote (103) Vermeule remarks “suffice it to say I believe there is a straightforward argument, not on originalist grounds, that due process, equal protection, and other constitutional provisions should be best read in conjunction to grant unborn children a positive or affirmative right to life that states must respect in their criminal and civil law…binding through the nation.” (p. 199) In fact, it’s Vermeule’s religious agenda that explains the hostility his project has generated among many of my intellectual friends.

But as very regular readers of my work know, I reject both radical secularism/Laïcité (associated with French republicanism) and Rawlsian public reason (which requires us to justify political projects by way of widely held or neutral principles). True liberty, including religious liberty, allows us to make political claims in whatever vernacular we choose (including the religious one). As I have argued while writing about Tom Pink (one of Vallier’s integralist theorists), it’s healthier for political life and liberalism if organized religions pursued public, spiritual warfare of their choice. As long as the Church does not require the state to act as its coercive agent (in line with Dignitatis Humanae), liberalism’s red lines have not been crossed (see this essay by Pink for that interpretation of Dignitatis Humanae).

I introduced the four-quadrant spectrum because Vermeule does belong in the top right corner. And there are passages where he edges uncomfortably close to its upper edge. This is most explicit in a section entitled, “Subsidiarity as a state of exception.” There he uses the Schmittian conception of the emergency situation to defend Messner’s account of subsidiarity. From a political theory perspective there is a lot to say about Vermeule’s framework and especially his odd use of Schmitt and his non-standard conception of subsidiary. But today I am going to limit myself to defend the claim of the first two sentences of this paragraph.

Messner was an important theorist of corporatism the ideological framework of European Christian Democracy. But as I noted (recall) in my post, where I first linked Vermeule to this view, there is a fascist friendly variant. Messner (a critic of national-socialism) himself was rather close to Dollfuß (an authoritarian conservative dictator not dissimilar from Franco and Salazar) of which he wrote an admiring biography.

Messner’s (1949) Social Ethics — a key text for the revival of post WWII corporatism — is rather important to Vermeule’s overall argument. But here I focus exclusively on a small part of Vermeule’s treatment of it. On p. 157 Vermeule quotes the following passage from Messner’s Social Ethics:

Where the will to moral responsibility in a society shrinks, the range of validity of the subsidiarity principle contracts and the common good function [of the state] expands to the extent that the moral will to responsibility in society fails. In such cases, even dictatorship may be compatible with the principle of subsidiarity.

In larger context, Messner is describing the need for a strong state in the context of social pluralism. Vermeule then offers the following gloss on the passage:

This sounds alarming, of course, but we should understand that Messner with his massive classical erudition is certainly best understood as speaking not at all of the modern strongman or junta, but rather within the tradition of the carefully cabined Roman model of dictatorship – a fundamentally legal and constitutional authority, limited by term, granted for a certain purpose, and authorized by the Senate. Messner’s picture is the restorative and, in a sense, fundamentally conservative one we have mentioned; the purpose of the extraordinary authority called into being by the state of exception is to heal and promote the ordinary and healthy functioning of the subsidiary institutions.— (pp. 157-158)

Let’s stipulate that Vermeule is correct that neither Messner nor Vermeule is re-opening the door to the modern strongman or junta. Even so, this is an alarming position (especially in light in Vermeule’s repeated insistence that American jurisprudence is in unhealthy state). In modern parlance, the Roman dictator model is a transitional or temporary despot. The point of granting the despot unconstrained powers is to solve an important social or political emergency and, thereby, restore the (federated) social organism to health. For Vermeule the restoration involves the promotion of a political authority capable of “reasoned rulership.” (p. 1)

Unfortunately, ‘'the carefully cabined Roman model of dictatorship’' leaves no relatively little room for post-facto accountability.* In this it differs dramatically from the liberal conception of emergency powers that does require such accountability (see especially States of Emergency in Liberal Democracies by Nomi Claire Lazar, who traces this back to Locke). As I have argued Hume, especially, makes space for such accountability.

In principle Vermeule could accommodate or incorporate this point if he were willing to acknowledge the liberal emphasis on accountability on what he calls “classical legal theory” that shapes American jurisprudence (until its corruption in recent generations.) It’s not as if Locke and Hume’s views on these matters were of no interest to American Founders. But as I have noted before in my series of posts on his book, Vermeule shows remarkably little interest in mechanisms of post facto accountability (or bottom up authority) and adopts conceptual frameworks that systematically downplay the need or existence of these.

That is to say, as the start of this post has suggested, there will be many temptations to collaborate with Vermeule’s agenda. But if his juridical philosophy wins many strategically placed converts, his juridical views on the legitimate coercive power of the state are rather scary to those who it will treat as enemy, or pollution.

*I corrected this sentence after a public correction by Lazar. She argues there is informal and political accountability in the roman political. (I partially disagree because I consider this accountability highly attenuated.)