Adrian Vermeule, a law professor at Harvard University, wants to use the power of the federal government to make you take a coronavirus vaccine. He argues as much in a recent New York Times article titled “Supreme Court Justices Have Forgotten What the Law Is For.” Lamenting what he views as the Court’s inability to understand law in the same way Adrian Vermeule does (on which more in a moment), he writes:
. . . the court erred in the recent decision in National Federation of Independent Business v. Department of Labor that, in effect, barred the Occupational Safety and Health Administration from requiring vaccination (or a test-and-mask regimen) in large workplaces. The safeguarding of public health is a core duty of governance, and Supreme Court precedent long ago established that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The court held that because the relevant laws gave OSHA the power to regulate workplace safety specifically, it could not regulate more general public health risks, like Covid, that also have important effects in and through the workplace — a libertarian non sequitur. The fear of rule by unelected bureaucrats in government agencies does not justify actual rule by unelected bureaucrats on the bench.
This is no one-off from Vermeule. In September, just after the Biden administration imposed its large-employer vaccination mandate through the Occupational Safety and Health Administration, Vermeule argued definitively in its favor:
I see no objection in principle to the President’s vaccine mandate, as a matter of political morality. The highest aim of just government is to promote the common good, and that surely includes, at minimum, our health, safety and well-being as a community.
Hyperlinks are often forced to do much of the argumentative work in Vermeule’s polemics. In this instance, Vermeule, naturally, cited himself: an Atlantic essay published in March 2020, before there were even vaccines to mandate. In this essay, which purported to explain a “common-good constitutionalism” ostensibly superior to its counterpart that has “outlived its utility,” Vermeule vaunted “a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity.” And, when it came to vaccines, well:
Elaborating on the common-good principle that no constitutional right to refuse vaccination exists, constitutional law will define in broad terms the authority of the state to protect the public’s health and well-being, protecting the weak from pandemics and scourges of many kinds—biological, social, and economic—even when doing so requires overriding the selfish claims of individuals to private “rights.”
So one must give credit to Vermeule for consistency, at least. But in this case, it is consistency in error. And when it comes to constitutional interpretation, error has no rights. Vermeule’s general error here is one evident elsewhere in his work: namely, a conflation of “political power” and various synonyms of his choosing into an unbundled, undifferentiated mass under a sovereign’s control, inducing in him a contempt for its division and distribution. By such logic, Vermeule can transmute Jacobson v. Massachusetts, a case involving a state-level vaccination mandate (for a much-deadlier disease), into a talisman justifying a warping of our constitutional order — a warping that the Supreme Court rightly rejected. And in such a worldview, the Court acting in this way becomes not a healthy exercise in limiting state power, but “rule by unelected bureaucrats on the bench.” It is a topsy-turvy world, whose only real consistency seems to be Adrian Vermeule’s own preferences.
A far more logically coherent alternative was presented by Ryan T. Anderson in Newsweek last December. Explaining how he can be “pro-vaccine and anti-mandate,” Anderson states upfront that he is “not saying that vaccination mandates are categorically wrong,” as vaccines are able “not only to protect your own health, but to protect others—and to advance the common good in a variety of ways.” Whether these particular vaccines, mandated in the fashion the Biden administration chose to, advance the common good, however, depends on certain facts. Anderson identifies the “the risk of death or other serious harms with and without the vaccine,” the identity of those most at risk, the current extent of natural immunity, the duration of the protection offered by vaccines, their side effects and the ethicality of their production, the possibility of alternatives for reducing health risks, the intelligibility of the mandate’s goals, its lawfulness, whether it “respects religious, moral and medical conscientious objectors,” and whether it could induce “social strife.” One must discern these facts, and then “weigh the costs and the benefits, with the burden of proof on the party trying to coerce others,” Anderson writes.
Doing so himself, Anderson concludes otherwise:
President Biden’s OSHA mandate fails the test: It’s illegal, implemented on behalf of a vaccine that is less than fully efficacious and it does not give adequate protections for conscientious objectors—three strikes. In short, it’s unjust. It doesn’t serve and respect all of the demands of the multifaceted common good.
Vermeule’s logic not only blinds him from the rightness of Anderson’s case. It would also sanction a whole host of Covid-era government abuses of power, opposition to which has become a uniting force for the Right. When Vermeule stands virtually alone on the right in endorsing such extreme actions, it is worth asking why. He postures publicly as a genuine threat to modern liberalism. Some threat: a Harvard law professor who has plenty of kind words for former colleagues such as Supreme Court justice Elena Kagan, who can easily get his pro-government screeds placed in mainstream outlets such as the Atlantic and the New York Times, and who co-authors books and articles with Obama administration “regulatory czar” Cass Sunstein defending the administrative state. Truly, the gatekeepers of modern liberalism are quivering in the face of such a threat.
Vermeule may claim to be going against the grain. But his own words suggest a comfort with untrammeled government power that conservatives would find familiar in their opponents and ought to reject — as indeed, in this instance, they rightly have. Why he believes them is a different question — though, again, one to which his own words may supply an answer.
In condemning Supreme Court justice Neil Gorsuch’s bizarre decision in Bostock v. Clayton County, Vermeule writes that “some of the court’s self-described originalists provided the necessary votes to read the Civil Rights Act of 1964, implausibly, to protect sexual orientation and even transgender identity — quite obviously parroting the orthodoxy of the present.” He is right about this. But in endorsing the “biomedical security state” (as Florida governor Ron DeSantis calls it) against which conservatives have rightly set themselves, what is Adrian Vermeule doing other than “quite obviously parroting the orthodoxy of the present”? Conservatives seeking guidance on how best to confront modern challenges should not be swayed by someone so yoked to the present, so familiar with the esteem of liberal institutions and individuals. They would be better off looking to those who know what time it is.
Editor’s note: This post originally described Vermeule’s view as common-good originalism; it is common-good constitutionalism.