Vermeule, the Popper-Shklar objection and political morality

Early on in Adrian Vermeule’s (2022) Common Good Constitutionalism (Polity), he disarmingly admits “it is not a work of political theory.” (p. 5.) So, I feel a bit uneasy engaging, as I will, with the bits in which he drifts into that subject matter.

But before I get into those polemics, it may be worth stepping back a bit. Emile Perreau-Saussine’s posthumously published (2012) Catholicism and Democracy (Princeton) explores how the Catholic church came to reconcile itself to mass liberal democracy, and turn its back on counter-revolution. Perreua-Saussine concludes that without any fondness for mass democracy or liberal views, that in the middle of the twentieth century it was the encounter with totalitarianism that persuaded the Catholic Church to turn its back on the temptation of political theology and political religion (including Marxism and fascism).

I knew Perreau-Saussine at The University of Chicago, but we were never intimate. And his elegant book left me wondering to what degree he thought the reconciliation with mass liberal democracy would endure once it became clear that it resists the wisdom that, on his view, The Church has to offer, and it would come to be perceived, anew, as a threat to humanity.

After all, on the fringes of the once very successful European Christian democratic parties who helped shape and govern European welfare states one would, throughout the post-war period, often find Catholic jurists — who as Max Weber teaches us are indispensable to the functioning of democratic party life — much more at ease with corporatism and catholic social theory than with the unfolding advance of liberal social mores (and who after a drink also would proclaim that Fascism had been misunderstood).

Vermeule reminds me of such jurists. Except that he is much more brazen. A short section, “a note on democracy,” asserts plainly that “[mass] democracy, like any other regime-form, is valuable only insofar as it contributes to the common good.” (p. 48) To be sure, he acknowledges that from the perspective of the art of government (he uses “technique of government and lawmaking”) due attention to “consultation and representation” are prudent. (p. 48) He is especially concessive to the idea (much beloved I hasten to add by nineteenth century parliamentary liberals) that diversity of perspectives in legislative processes leads to better law. But he steers a long course around any idea that smacks of the thought that (popular) consent is a necessary condition for legitimate law.

So much for set up. Before I get to my criticism, two observations: First, I want to reiterate the point implied in the previous two paragraphs. Ideologically, Vermeule reads as a fairly standard corporatist: he prizes “consultation and representation of persons, cities, professions, civil society groups, and others affected by the acts of public authority.” And, while I wouldn’t call him a New Deal Democrat, he is many ways closer to it than the Conservatives on the current SCOTUS. There is a revealing footnote in which he calls attention to the fact that “the origin story” of originalism, which he rejects, “should be located farther back, in opposition to the civil rights.” (n. 241, p. 210). He is not exercised by the end of Jim Crow.

Second, he describes the aim of his book, written as a lawyer, as follows:

I offer an account that aims to put our constitutional order, including the administrative state, in its best possible light, given our whole history – not merely our most recent history. As against the progressives and originalists, I suggest that the best overall interpretation overall of our public law requires us to revive the principles of the classical law, looking backward so that we may go forward. (P. 5)

There are really four significant elements here: (i) the defense of the administrative state is a defense of the post-New Deal political order. In fact, the administrative state is central to his argument. As he puts it “the centerpiece of our operative constitutional order, the administrative state, is structured and suffused by principles of legality that order it to the common good.” (p. 24) (ii) This also means that Vermeule treats the executive branch with considerable deference as long as its lawmaking acts through reasoned ordinances and serves the public good. I return to that below. (iii) Vermeule explicitly accepts Dworkin’s “moral readings of the Constitution” and embraces the idea that “principles of political morality” are themselves part of the law (and need to be used to interpret it). He disagrees with Dworkin’s left-liberal and individualist morality, but he accepts Dworkin’s critique of originalism. (p. 6)

As an aside, Vermeule’s interest in Schmitt is, thus, not restricted to Schmitt being a source of clever criticism of liberalism (recall yesterday’s post). Vermeule seems to aim to rehabilitate political religion; so it is no surprise that Vermeule treats Schmitt as a theorist of the “constitutional common good.” (see note 180). To what degree a Dworkin style liberal can block this move is worth pondering. (This is an Achilles heel of Dworkin’s jurisprudential project.)

Now (iv) and to introduce my main objection. That is, in adopting the ‘best possible light’ construct, the known problems with the Constitutional order pursuing the common good are structurally minimized. This also becomes clear when he deals with what he calls “a stock concern about political rule, under robust authority directed to the common good: abuse of power.” (p. 49) This is, as promised, in the realm of political theory.

He approaches this objection by way of Karl Popper and Judith Shklar. He summarizes their position as follows, “even political actors or groups who cannot agree on the positive aims of the constitution can agree that minimizing the risk of abuse of power by the state is common ground.” (p. 49) Refreshingly, and forthrightly, he offers two objections to this kind of position.

The first is that to speak of “abuse of power” is, necessarily, to assume some picture, explicit or implicit, of what goods power may or must legitimately aim to promote. It assumes, necessarily, a theory of the legitimate ends of government. Without agreement on the good, it is impossible even to find agreement on the bad either; “abuse” is ill-defined unless one has an account of the legitimate ends of good government. The Popperstyle theorist believes these two are detachable, and that we can find consensus on what we don’t want even as we have very different positive life plans built around different values. The better view, however, is that the bad is privative and thus defined by the good. Hence it is not possible to agree on an account of bads, of “abuses,” while bracketing the question of what counts as the good and legitimate ends of government. I have stated the classical account of the legitimate ends of civil government earlier; the point here is just that there can be no coherent talk of “abuse of power” without specifying an account of such ends. (p. 49)

This objection contains two claims. First, that the Popperian is committed to the idea that “we can find consensus on what we don’t want.” And second that the Popperian is committed to the denial of the good and legitimate ends of government. Both are false. First, this commitment to a (negative) consensus is not the Popperian position at all (as if Popper is Buchanan & Tullock!) and also doesn’t follow from what is quoted from Popper’s Open Society: “How can we so organize political institutions that bad or incompetent rulers can be prevented from doing too much damage?”

By contrast, Popper explicitly thinks that bad or incompetent rulership is a factual question, not left to a majority or consensus at all. In fact, it is a bit odd that Vermeule (who clearly has read Popper carefully) missed this because not only does he quote Popper’s concern with “concrete evils,” Popper is also explicit that he agrees “with some medieval and Renaissance Christian thinkers who taught the admissibility of tyrannicide that there may indeed, under a tyranny, be no other possibility, and that a violent revolution may be justified.” And he goes on to point out that even in a democratically elected government violent resistance is not just permitted, but a duty: “the citizens have not only a right but also a duty to consider the action of such a government as a crime, and its members as a dangerous gang of criminals.” (Karl Popper (1945 [1994] The Open Society and Its Enemies, 360-361) These quotes also suggest that is is very misleading to suggest that Popper has no substantive conception of legitimate or good government.

Now it is true that Popper’s conception of good government is not ground in a substantive conception of political morality, but in something more akin to proceduralism. The concrete evils turn out to involve in addition to particular harms, violations of principles of accountability and consent. To quote Popper again by ‘democracy’ he means the institutions that provide “public control of the rulers and their dismissal by the ruled, and which make it possible for the ruled to obtain reforms without using violence, even against the will of the rulers.” (Recall here; and here.)

One may well worry that despite the length of the Open Society, that this is both too minimal to really inform constitutional, jurisprudential practice and too permissive toward the moral and policy mistakes of the views of the ruled and (to anticipate Vermeule) too focused on only one kind of problem. Vermeule develops this as follows:

The second basic objection is that the approach focused on abuse of power by the state is often myopic about other constitutional risks. As I have argued at length elsewhere, the “Constitution of Risk” should constitute an order of public law that does not obsess over particular risks, but that should rather take a broad view, considering the risks of inaction as well as action, and the risks posed by the exercise of power by corporations and other “private” actors under delegated legal powers. Myopia here means that the theorist urges constitutional precautions devoted to minimizing one sort of risk, while ignoring that the precautions may themselves create or exacerbate risks elsewhere.

In particular, constitutional theory often takes a libertarian form that becomes obsessed with the risks of abuse of power created by state organs in particular, while overlooking the risks of abuse of power that public authorities prevent through vigorous government. Those countervailing risks are erroneously coded as “private,” overlooking that they are created by economic actors whose power necessarily depends on the protection afforded by legal rules and entitlements. The emphasis on prevention of tyranny in the name of protecting autonomy overlooks that tyranny may itself arise in the very name of protecting autonomy. (pp 49-50)

As in the first objection an odd slide happens. And perhaps this slide is intelligible in virtue of certain peculiarities of American political culture in which certain kind of corporate friendly ‘libertarians’ have an important, outsized role in originalist and law & economics jurisprudence; but it is just very strange to claim that if one worries about the risks of abuse of state power one thereby cannot worry about the risk of abuse of corporate (and union) power as well. So, even if Vermeule were right against such a libertarian, it is an unsatisfying response to the basic worry.

In fact, conceptually it is not even necessary to argue in defense of individual autonomy in order to worry about state and corporate abuses power. (Popper himself is rather reticent to invoke autonomy. Shklar less so.) All one needs is a conception that concentrated power is ipse facto dangerous. It’s odd that Vermeule who writes, “the point here is definitely not that the abuse of power is of no concern,” (p. 51) doesn’t recognize this.

As I noted yesterday, Vermeule thinks that defenses of competitive markets rests on claims of efficiency and coordination. But he completely misses “the dispersed power” defense of competitive markets which was explicitly developed in response to Fascism and National Socialism (and not just Marxism). It is especially peculiar that he misses the dispersed power defense because it is completely compatible with Vermeule’s own (correct) idea that that one should not obsess over particular risks by only one kind of agent. It is also odd sociological oversight because the dispersed power defense historically appealed to catholic legal thinkers who formed the backbone of theorists of the social market economy (many of whom cited in the notes by Vermeule). So, Vermeule’s two objections to the Popper-Shklar worry are unconvincing.

At this point one may suggest that my invocation of ‘danger’ is a bit misleading. Surely, I most invoke some of the substantive goods that are threatened by concentrated power; there is, on might argue, no vita negativa. For the sake of argument: fair enough. But this challenge can be met by appeal to the need to prevent any systematic rights infringements. This is common ground between his target and Vermeule, who is adamant that “rights very much exist.”*