Adrian Vermeule wired up the explosive but didn’t stick around to watch it go off.
A Harvard law professor and conservative scholar, Vermeule had been working on a new legal philosophy for years when the Atlantic magazine asked him to write about it in March 2020. Known in academia for his provocative commentary, Vermeule let loose, declaring that the dominant conservative legal theory in the US had “outlived its utility”.
Originalism, the theory arguing that the US constitution should be interpreted in the light of its original intended meaning, had united social conservatives and free-market libertarians for 40 years. It was as simple for average voters to understand as it was effective at poking holes in liberal reasoning. And it was instrumental in notching up a string of legal victories at all levels of American jurisprudence. But here was a legal light arguing forcefully that it was time for something better. Vermeule proposed an alternative called “common good constitutionalism” and argued conservatives should focus less on limiting government and more on ensuring it has “the power to rule well”.
Vermeule filed his essay, and then the recent Catholic convert gave up social media for Lent.
While he was on hiatus, law Twitter blew up. Critics on the left dubbed him a fascist and an authoritarian flirting with “bargain-basement theocracy”. One suggested he might’ve gone “stir crazy” during the early days of lockdown. On the right, establishment lawyers attacked Vermeule as an apostate, a traitor, a fraud. William Pryor, a potential Supreme Court nominee, has since given three speeches and written two articles castigating Vermeule as “absurd” and “wrong”, charging that he relies on “invented history”.
The debate quickly took on a life of its own. A crowd of young social conservatives rallied around Vermeule, starting a website to discuss his work, at the same time as old-line conservative publications and leading originalist scholars made him a target. The death of originalism has been a more-or-less permanent topic of discussion at rightwing think-tanks and universities ever since.
This is much more than a tempest in a law-school teapot. American conservatives waged a well-funded, shrewdly co-ordinated, decades-long campaign to take over the country’s legal system. With Donald Trump’s appointment of three conservative Supreme Court justices, they decisively won. The consequences became clear this June when the court revoked the constitutional right to abortion, struck down a New York gun control law and limited the federal government’s power to fight climate change. Affirmative action and voting rights are next on the court’s long list of agenda items.
Two years ago, Vermeule’s essay set off a storm precisely because it prefigured the intellectual crisis now engulfing American conservatism. Namely, how to wield judicial power and how to explain it to a sceptical public? On that, the pugnacious 54-year-old Harvard prof has a few more radical proposals.
“He’s a really sweet guy,” John Yoo explained. Yoo, a conservative law professor at the University of California, Berkeley and best known for writing the legal memo authorising the use of torture by the George W Bush administration, has known Vermeule for nearly three decades. “He reminds me of an eccentric aristocratic Englishman, a Brideshead Revisited kind of guy collecting butterflies. He doesn’t even know how to drive a car.”
This is the Adrian Vermeule who shows up to lunch at a restaurant near the Harvard campus in August. Owlish and gentle, he is wearing a rumpled polo shirt and tennis shoes. Vermeule may delight in skewering online opponents but, in person, he is unfailingly mild-mannered and polite — to our waiter, to the staffer who cleans up the shards of the empty glass he inadvertently knocks over, to me when I dive into my salad before he has even had a chance to say a blessing over his food.
It’s a Friday, when observant Catholics eschew meat, so Vermeule orders an Impossible Burger, noting as an aside that because the Jesuits declared capybara, the South American rodent, to be non-meat, he could have eaten that.
Vermeule is also a man who wants to turn American jurisprudence upside down. “From the perspective of my academic cloister, the Atlantic piece was just an incremental step,” he says. “I think originalism is coming unglued in a number of ways. There really is such a thing as natural law and natural reason about the governance of society. When our society gets sufficiently violent and decaying, people start to notice more that maybe there really is an intrinsically better way to do things.”
The “natural law” he is referring to is the belief that society should be governed by unchanging moral principles. The idea is rooted in classical law dating back to Greco-Roman times and was fleshed out by the medieval Catholic theologian Thomas Aquinas. While most legal scholars, both on the left and the right, prioritise individual rights and liberties, Vermeule argues that the community is paramount. “Almost all liberties are, in a sense, social. That is, all exercises of human powers affect the society around one and vice versa,” he says.
Vermeule’s “better way to do things” means that laws should be interpreted to conform with precepts “written in the hearts of all people”. When he talks about the US government ruling “well”, he means not just conservative concerns such as preserving traditional family structure and banning abortion, but also addressing inequality, the opioid epidemic and climate change.
Understanding why these ideas have touched off such a frenzy among American conservatives requires knowing a bit of history. Between the late 1930s and 1970s, the US Supreme Court handed down a series of landmark decisions that ended segregation, removed prayer from public schools and protected privacy and abortion rights, among many others. The federal government, meanwhile, expanded dramatically to fight poverty, regulate business and protect the environment. All of it was made possible by a progressive legal tradition that viewed the US constitution as a living document, one that should be interpreted with changing times.
Right-leaning scholars sought an intellectual framework that would not only justify a U-turn on social issues but also empower them to rein in the federal government. Their answer was originalism. The theory, sometimes known as textualism, was first articulated in the 1970s by Robert Bork, a Yale professor and appeals court judge who was seen as so radical at the time that six Republicans joined Democratic senators to block his 1987 appointment to the Supreme Court.
But in the long run, Bork’s approach allowed conservatives to appeal over the heads of the Supreme Court to a higher, ostensibly less political, authority: the 18th-century authors of the constitution. That authority was all-white, all-male, Christian and included slaveholders, so it unsurprisingly provided ammunition for attacking progressive decisions.
Originalism entered the practical realm in the 1980s when law students at Harvard, Yale and the University of Chicago banded together to form the Federalist Society. Its stated goals included fostering “an appreciation of the rule of law in protecting individual freedom and traditional values”. The group is now one of the most powerful legal organisations in America, with chapters at hundreds of law schools. Six of the nine Supreme Court justices are current or former members. The Federalist Society didn’t just promote originalist ideas through speeches and networking events. It also vetted judicial appointments for Republican presidents and provided financial backing for young conservative scholars. Adrian Vermeule was one of them.
Raised in Cambridge, Massachusetts, Vermeule grew up steeped in classics. His mother Emily was a Harvard professor and one of the leading archaeologists of her generation. His father Cornelius was a curator of classical art at the Museum of Fine Arts in Boston. Childhood summers spent in Cyprus, Greece and western Turkey left Vermeule with a fascination with the societies traditionally seen as the foundation of western culture. “The overall impression that one gets both from the classical world and . . . even the architecture of life in the Mediterranean world today is that polities, even literal cities, should be human-scaled and ordered to the good of humans,” he says. “It shouldn’t be all monumental skyscrapers.”
After a stint at boarding school, he attended Harvard, where he steered clear of the small but vocal band of undergraduate conservatives that included Yoo. Instead, Vermeule buried himself in ancient Chinese philosophy, graduating summa cum laude in 1990. The subject, he says, was akin to the classical tradition in which he had grown up, but different enough to give him scope for independent thinking. At the suggestion of his then girlfriend, he took and aced the LSATs and stayed on to attend Harvard Law School.
Vermeule’s ability to write and his fluency in Mandarin made him stand out among the students vying for prestigious clerkships with conservative judges. He spent the 1993-94 judicial term working for David Sentelle, who is still a senior judge on the DC Circuit Court of Appeals. Federal jurists hire only a handful of clerks each year and rely closely on them to help research and draft the opinions they issue.
Many regard their clerks as a kind of extended family, and Sentelle was no exception. Vermeule “had among the best memories for cases of any clerk I have ever had”, Sentelle says. “My impression of him at the time was that he was a good solid traditionalist and originalist.” Sentelle adds that he is “very surprised” by Vermeule’s current work.
The following year, Vermeule clerked at the Supreme Court for the late Antonin Scalia. This not only marked him as an up-and-coming conservative legal scholar but brought him into close contact with the movement’s most influential intellect. Bork may have articulated originalism, but Scalia wrote much of it into law in the 30 years he sat on the high court. “In that period of his career, he was less interested in originalism than in traditionalism and a classical approach to law,” Vermeule says of Scalia. “He was a proponent of executive power and the administrative state . . . I was a fan of presidential authority. I was a fan of deference to the administrative state because, back then, that’s what he was doing.”
Sentelle told me that Scalia once quipped that Vermeule was “the first person to pass through the Sentelle and Scalia chambers and be a conservatising influence”.
Vermeule has been teaching at Harvard since 2006. One of the country’s largest law schools, Harvard attracts students with a full panoply of political views. It is home to leftist and feminist journals as well as the de facto house organ of the Federalist Society, the Harvard Journal of Law and Public Policy, and produced four of the nine current Supreme Court justices (two liberals and two conservatives).
Though he is on sabbatical this term, Vermeule usually teaches the main administrative law class as well as a seminar on the classical legal tradition. He is popular with students, including some who disagree with common good constitutionalism. “He has been absolutely kind and welcoming of opposing views in the classroom,” says Eli Nachmany, a recent graduate who took three of Vermeule’s classes because “he’s one of the best teachers I have ever had”.
But Vermeule’s eclectic, often snarky Twitter feed puts others off. During the 2020 election, he tweeted numerous claims of fake voting, including “Lol the election isn’t over until Team Joe fixes up your ballot for you”. Separately, he wrote that atheists “can’t be trusted to keep an oath” and posted the advertisement for a conservative conference with the caption: “The very first group for the camps”. He told the student newspaper that it was a sardonic commentary about how if the far left came to power they would eventually send all Republicans to gulags. But critics interpreted it as a Holocaust joke.
Last year, 11 student groups called on Harvard Law School to condemn his “highly offensive, discriminatory, and violent statements in online posts”, including the 2020 election jokes and some they described as “anti-LGBTQ+”. Harvard declined to comment on the episode, as did Vermeule, although he said, “Harvard is doing really well in terms of creating a respectful climate for academic freedom compared to a bunch of other law schools.”
Vermeule enjoys reaching across ideological divides to work with colleagues such as Cass Sunstein, a former Obama administration official and co-author of the behavioural theory book Nudge. Though they disagree on many things, they share an enthusiasm for empowered technocrats and worked together on Law and Leviathan, the 2020 book that Vermeule considers an important precursor to common good constitutionalism.
“People who have an overly narrow or partisan view of the world say, how can you write with Cass Sunstein? First of all, I don’t think of myself as a Republican, but second of all, it’s such a narrow way to look at law,” Vermeule says. “He and I share a bunch of commitments that are very compatible.” Specifically, both are fans of the New Deal, Franklin D Roosevelt’s activist government in the 1930s. “New Dealers thought law had a purpose. It was to serve human wellbeing. To me, it fits like a glove with the classical view of law. It’s not supposed to be some autonomous entity. Positive law is a human judgment that is supposed to promote the good of the community.”
Vermeule’s 2016 conversion to Catholicism contributed to his intellectual development, although he rejects the idea that his theories are purely religiously driven. Raised as an Episcopalian, he became estranged from the denomination at a time when it was becoming more liberal, ordaining female and gay bishops. His Twitter feed sprinkles retweets about Catholic feast days and audiences with Pope Francis among legal matters. His conversion was dubbed a “miracle” by conservative legal scholar Robert George of Princeton, who posted pictures on Facebook of Vermeule and his sponsors after the rite.
Vermeule has given interviews with religious media in which he credited the Virgin Mary (“a very great Lady”) for his conversion and expressed negative views about the power of the law to keep society on track. “I put little stock or hope or faith in law,” he told First Things, a conservative religious journal. “If [the] culture sours and curdles, so will the law; indeed, that process is well under way and its tempo is accelerating. Our hope lies elsewhere.”
Vermeule’s shot across the originalists’ bow two years ago was fired at a time when American conservatives were experiencing a moment of pain and doubt vis-à-vis the courts. Despite delivering victories on gun rights and corporate regulation, justices had repeatedly shied away from overturning Roe vs Wade, the landmark 1973 case holding that the constitution protects abortion rights. On gay rights, the court had moved markedly to the left.
For many, the nadir came with Bostock vs Clayton County, when Neil Gorsuch, one of Trump’s appointees, used textualist techniques to argue that the 1964 civil rights act prohibited anti-gay and anti-transgender discrimination in the workplace. To those committed to traditional definitions of the family, the ruling confirmed that originalists had lost their way. “Expressly originalist decisions like Bostock have been a continuing disaster from a socially conservative standpoint [and] have metastasised through the legal system,” Vermeule says.
But Vermeule had far deeper problems with the direction of American legal thought, and his solution was to reach back even further in time. While the originalists draw their authority from the US’s foundational documents, he argues that the constitution and the Declaration of Independence are simply America’s way of codifying much older principles of a just society. The idea of natural law has been around since at least Aristotle. “This is an appeal over the head of originalism to something even more traditional,” Vermeule explains.
He also looks abroad, arguing that judges should consider whether there is international consensus when determining how to interpret laws and the constitution. In his view, the US has been an outlier on issues such as gay marriage and, until this summer, access to abortion in the second trimester of pregnancy. “One of my targets in all this is the extraordinary parochialism of the American legal scene,” he says. “You can go to a Federalist Society event now and hear American law professors say that if you’re doing something other than originalism, you’re not doing the law. That would imply that there is no law being done throughout most of Europe, Latin America and Asia.”
Vermeule’s natural law approach resonates with some younger lawyers who reject traditional conservatism’s hostility to big government and its scepticism of climate change. Many of them worry about the waning of the nuclear family, global warming and the opioid epidemic and dream of a much more muscular approach, modelled on progressive successes such as the civil rights movement and the New Deal.
“I went from thinking I have these eccentric gripes to ‘I’m not alone’,’’ says one 30-something lawyer who founded Ius & Iustitium, a website and Twitter account devoted to the subject that has nearly 7,000 followers. “Originalism has exhausted itself. You need a moral framework. If you pretend you don’t have one, you are lying to yourself.”
Natural law enthusiasts also draw strength from the fact that Clarence Thomas, now the longest-serving Supreme Court justice, has frequently referenced the approach despite his status as a leading originalist. Some, including Vermeule, argue that Justice Samuel Alito’s majority opinion in the case striking down abortion rights is traditionalist, rather than originalist, in part because it relies on cases that predate that legal movement.
Quite apart from the content of his views, Vermeule’s efforts to root his theories in history are somewhat problematic. His article and a follow-up book, Common Good Constitutionalism, cites relatively few specific cases — almost none of the really famous decisions — to justify his claim that natural law has always been used in constitutional interpretation. “It strains credulity to suppose that a dissenting opinion from 1905, a Supreme Court decision from 1936 and a state-court decision from 1889 could establish that living common goodism is deeply rooted in the American tradition,” Pryor, the leading originalist judge, wrote in one of his attacks on common good constitutionalism.
Even though the Declaration of Independence specifically references “nature’s law”, Vermeule’s critics believe he relies too much on Aquinas and other Catholic philosophers from the Middle Ages. “A book that tried to seriously investigate the natural law background of the constitution . . . would be a huge contribution. This book uses that opening as a kind of excuse for a bait and switch,” says William Baude, a University of Chicago law professor and an originalist. “The founders did not rely on Aquinas. They had a much more Enlightenment variation on it; it was liberty first and government second. Vermeule paints it the other way around.”
During our conversations, I tell Vermeule that as someone fed up by gridlock in Washington, I find parts of his vision of a just and empowered state appealing. His views certainly sound closer to mine than recent conservative Supreme Court rulings that have hog-tied government efforts to regulate guns, corporate campaign contributions and carbon emissions. But where are the protections for individual liberty and minority rights? It’s all very well to say the government should be empowered to act in the common good, but in a deeply divided America, who gets to decide what the common good is?
Vermeule replies that I am asking for too much detail from an intellectual framework. “We fight all the time over what counts as liberty, whose conception of liberty, whose conception of equality. The common good is no different,” he says.
Yet the real-world consequences of Vermeule’s theories are stark and at times off-putting. In his view, individual rights only matter when they contribute to the betterment of the broader community. He recently gave an interview to the Beijing Review, a magazine owned by the Chinese Communist party, in which he played down the importance of democracy. He also has good things to say about Poland’s traditionalist Law and Justice ruling party, which has been sanctioned by the EU for infringing on judicial independence. “Neither the classical civilian law nor the doctrine of the Catholic Church have ever said that liberal democracy is the only permissible form of government,” he says. “It is just not true that liberal democracy is the sine qua non of a just political order.”
I thought about this last idea when Yoo later told me, “He’s not a real-world, putting-it-into-practice kind of guy. Communism sounded like a good idea in theory, too.”
The obvious question about common good constitutionalism is whether its appeal among conservatives has peaked now that the Supreme Court has overturned Roe. Vermeule’s critics tend to think so. “The end of this [Supreme Court] term took a lot of the wind out of Professor Vermeule’s sails,” says Joel Alicea, an originalist scholar at Catholic University in Washington. If that is the case, Vermeule’s star turn may prove short-lived.
Predicting which intellectual currents will take hold in America these days is a fool’s errand, but there may be some clues later this month. Vermeule will be this year’s speaker at a prestigious Harvard lecture series that Scalia inaugurated in 2008. His ideas will also be centre stage 10 days later at a forum sponsored by the Federalist Society’s journal that lists 23 speakers and moderators, including four sitting judges.
Vermeule plans to take on Scalia’s legacy, arguing that the justice’s best work came in the first part of his career and that that work was consistent with common good constitutionalism. “I am going to say that early Scalia is the hero,” he says. “I’m going to distinguish between ‘original Scalia’ and ‘evolved Scalia’ and say original Scalia is a classical lawyer.” He is smiling as he tells me about the speech. “This is a bit impish, but I can’t help myself.”
Brooke Masters is the FT’s US investment and industries editor, and an associate editor
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