Adrian Vermeule | |
|---|---|
 Vermeule in 2018 | |
| Born | Cornelius Adrian Comstock Vermeule (1968-05-02)May 2, 1968 (age 57) Cambridge, Massachusetts, U.S. |
| Spouse | Yun Soo |
| Relatives | Cornelius Vermeule (father) Emily Vermeule (mother) Blakey Vermeule (sister) |
| Academic background | |
| Education | Harvard University (BA,JD) |
| Influences | |
| Academic work | |
| Discipline | Administrative law Constitutional law |
| Institutions | |
| Notable ideas | Common good constitutionalism |
| Website | blogs |
Cornelius Adrian Comstock Vermeule (/vərˈmjuːl/,[2] born May 2, 1968) is an American legal scholar who is the Ralph S. Tyler Professor of Constitutional Law atHarvard Law School. An expert onconstitutional andadministrative law, since 2016 he has voiced support forCatholic integralism.[3] He has articulated this into his theory ofcommon-good constitutionalism.
Vermeule was born on May 2, 1968,[4] inCambridge, Massachusetts.[5] His father,Cornelius Clarkson Vermeule III, was a curator of ancient and classical art at theMuseum of Fine Arts, Boston. His mother,Emily Vermeule, was a professor ofphilology andarchaeology atHarvard University. Vermeule graduated fromHarvard College in 1990 with aBachelor of Arts,summa cum laude, in East Asian languages and civilizations. He then attended Harvard Law School, graduating in 1993 with aJuris Doctor,magna cum laude.
After graduating from law school, Vermeule was alaw clerk to JudgeDavid Sentelle of theU.S. Court of Appeals for the District of Columbia Circuit from 1993 to 1994 and to JusticeAntonin Scalia of theU.S. Supreme Court from 1994 to 1995.[6]
Vermeule joined the faculty of theUniversity of Chicago Law School in 1998.[7] Vermeule became professor of law atHarvard Law School in 2006, was named John H. Watson Professor of Law in 2008, and was named Ralph S. Tyler Professor of Constitutional Law in 2016. He was elected to theAmerican Academy of Arts and Sciences in 2012 at the age of 43.
Vermeule's writings focus on constitutional law, administrative law, and the theory of institutional design. He has authored or co-authored nine books.[8] He teaches administrative law, legislation, and constitutional law.
In 2015, Vermeule co-founded the book review magazineThe New Rambler.[9] Vermeule became a contributing editor toCompact in 2022.[10]
On July 24, 2020, Vermeule was appointed to theAdministrative Conference of the United States.[11]
A convert toCatholicism, Vermeule has become an advocate ofintegralism, a form of modern legal and political thought originating in historically Catholic-dominant societies and opposed to theFounding Fathers' ideal of division betweenchurch and state. Integralism in practice gives rise to state order (identifiable astheocratic) in which the Common Good has precedence over individual autonomy, the value prioritized by American democracy. Rather than electoral politics, the path to confessional political order in integralist theory is "strategicralliement", or transformation within institutions and bureaucracies, that lays the groundwork for a realized integralist regime to succeed a liberal democratic order it assumes to be dying. The new state would "exercise coercion over baptized citizens in a manner different from non-baptized citizens".[12][13][14]
On judicial interpretation, Vermeule believes:
The central question is not "How, in principle, should a text be interpreted?" The question instead should be, "How should certain institutions, with their distinctive abilities and limitations, interpret certain texts?" My conclusions are that judges acting under uncertainty should strive, above all, to minimize the costs of mistaken decisions and the costs of decision making, and to maximize the predictability of their decisions.[7]
Vermeule is ajudicial review skeptic. Jonathan Siegel has written that Vermeule's approach to the interpretation of law:
eschews, and attempts to transcend, the main elements of the long-standing debates over methods that courts should use to interpret statutes and the Constitution ... he sees no need to resolve apparently burning questions such as whether courts are bound by what legislatureswrite, or by what legislaturesintend ... For Vermeule, everything comes down to a simple but witheringcost–benefit analysis.[15]
In 2007, Vermeule said about theUnited States Supreme Court that it should stay away from controversial political matters, such asabortion laws andanti-sodomy statutes and defer to Congress, as the elected representatives of the people, except in extremely obvious cases. This would require both liberals and conservatives to step back and realize that the benefits of such a court would outweigh the drawbacks for both. Vermeule was thus suggesting "a kind of arms-control agreement, a tacit deal".[16]
Vermeule believes that legal change can only come about through cultural improvements. In an interview in 2016 after his conversion to Catholicism, Vermeule said,
I put little stock or faith in the law. It is a tool that may be put to good uses or bad. In the long run it will be no better than the polity and culture in which it is embedded. If that culture sours and curdles; so will the law; indeed that process is well underway and its tempo is accelerating. Our hope lies elsewhere.[6]
In an article inThe Atlantic in March 2020, Vermeule suggests thatoriginalism – the idea that the meaning of theAmerican Constitution was fixed at the time of its enactment, which has been the principal legal theory of conservative judges and legal scholars for the past 50 years, but which Vermeule now characterizes as merely "a useful rhetorical and political expedient" – has outlived its usefulness and needs to be replaced by what he calls "common-good constitutionalism".
Vermeule's concept of common-good constitutionalism is:
based on the principles 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. ... 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.[17]
Vermeule specified that common-good constitutionalism is "not tethered to particular written instruments of civil law or the will of the legislators who created them". However, the determination of the common good made by the legislators is instrumental insofar as it embodies the background principles of the natural law.[18] In other words, while the legislative intent is not per se controlling, positive law always seeks to put into effect natural law principles, and the intended principles behind the positive law are controlling. In that vein, he also says that "officials (including, but by no means limited to, judges)" will need "a candid willingness to 'legislate morality'" in order to create a "just and well-ordered society."[17]
The main aim of common-good constitutionalism:
is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well ... 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.[17]
In a critique inNew York, politics and economics writer Eric Levitz argued that this theory of jurisprudence "allows thereligious right to impose its vision of the good on the American people, whether they like it or not."[19]Garrett Epps, a professor of law at theUniversity of Baltimore, also wrote a critique inThe Atlantic, linking common-good constitutionalism tointegralism and arguing that Vermeule's approach represents authoritarianism and objects "not [because] it is harmful and antihuman, but simply that, in the end, it is sobanal.[20]
Vermeule's common good constitutionalism has drawn a range of responses, both positive and negative. Legal scholarRichard H. Helmholz, in a review ofCommon Good Constitutionalism, described it as "a serious contribution to some of the most pressing legal debates of our times... Vermeule's book has the merit of providing some of the details about how such a change might occur. It also includes some marching orders."[21]Jack Goldsmith praisedCommon Good Constitutionalism as "the most important book of American constitutional theory in many decades".[22]
Legal scholar Conor Casey has criticized critics of common good constitutionalism as having fundamentally misunderstood it. According to Casey, common good constitutionalism "is entirely consistent with thenatural law legal tradition and emphatically not an argument for authoritarianism unbound from legal and democratic constraint or concern for human rights".[23]
According to Eric Levitz, the values Vermeule promotes are those ofCatholicism and theChristian right.[19] Law professorRandy E. Barnett characterizes Vermeule's essay as "an argument for the temporal powerof the state to be subordinated to the spiritual powerof the Church".[24] Constitutional law professorGarrett Epps characterizes Vermeule as "an authentic Christian nationalist to whom the Constitution is only an obstacle". Vermeule's common-good constitutionalism argument is, according to Epps, really "authoritarian extremism" which "has absolutely nothing to do with the actual United States Constitution, and in many ways flatly contradicts it. ... In fact, the Constitution as such is not a binding text to Vermeule" since it must be, in Vermeule's words, "read into" in order to arrive at the results he prefers. In the end, Epps criticizes Vermeule's concept as a "banal" anti-constitutional theory akin toFalangism.[25] Levitz notes that Vermeule received little support from conservatives for his arguments, although some did object to characterizing him as "authoritarian".[19][17]
In a column inThe Washington Post, libertarian columnistGeorge F. Will described Vermeule's "common-good constitutionalism" as "Christian authoritarianism — muscular paternalism, with government enforcing social solidarity for religious reasons. This is the Constitution minus the Framers' purpose: a regime respectful of individuals' diverse notions of the life worth living." About Vermeule's and some other contemporary conservative views, Will goes on to say that "... American conservatism, when severed from theEnlightenment and its finest result, the American Founding, becomes spectacularly unreasonable and literally un-American."[26]
Elliot Kaufman, writing in the conservative magazineNational Review, has described Vermeule as a "reactionary" and an "illiberal" following in the footsteps of GermanNazi thinkerCarl Schmitt. In Kaufman's view, Vermeule'silliberalism is "dangerous".[27] Law professor Rick Hills described Vermeule's recent writings as a kind of "anti-liberal chic", or "a really cheap way to signal one's willingness to offend without putting any specific cards on the table about one's own specific views about, say, the acceptability of locking up demonstrators who offend the regime in power".[28]
Peter J. Wallison, who served as White House Counsel during the Reagan presidency, described Vermeule's book as "more an embarrassment than a legal masterpiece" and that "the political structure he devises is highly authoritarian, perhaps even totalitarian". Wallison complained that Vermeule "never successfully defines what he means by the common good or how it can be achieved" and for failing to understand the distinction between textualism and originalism.[29]
In February 2020, Vermeule compared attendees of a conservative conference to concentration camp detainees, calling them "The very first group for the camps."[30]The Harvard Crimson wrote at the time that, "The comment drew criticism from professors and Harvard alumni, who interpreted the line as a reference toNazi concentration camps during the Holocaust." UC Berkeley law professorOrin Kerr, whose father survived the Holocaust, similarly responded by saying, "Bummed I wasn't invited, but then my family hasn't had good experiences in the camps."[30]
Vermeule was raised as anEpiscopalian, abandoning the denomination in college, but returning to it later in life.[31] He announced his conversion toCatholicism in 2016.[6] He said in an October 2016 interview that the logic behind his Catholic beliefs is inspired byJohn Henry Newman, and added:
Raised a Protestant, despite all my thrashing and twisting, I eventually couldn't help but believe that theapostolic successionthrough Peter as the designated leader andprimus inter pares is in some logical or theological sense prior to everything else – including even Scripture, whose formation was guided and completed by the apostles and their successors, themselves inspired by the Holy Spirit.[6]
{{cite book}}: CS1 maint: location missing publisher (link)| International | |
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