The Tuesday

Law & the Courts

Dungeons and Dragons and Jurisprudence


I suppose that for the rest of my life my name will be invoked every time The Atlantic publishes something controversial, as any good magazine does from time to time, or something dopey, as even the best magazines occasionally do, despite the efforts of their editors.

And so it has been with the case of Adrian Vermeule, the Ralph S. Tyler Jr. Professor of Constitutional Law at Harvard Law School and one of those Catholic “integralists” we keep hearing about, a recent convert who recently took to the pages of The Atlantic to offer an argument that conservatives should abandon their “originalist” jurisprudence and, with it, “legal liberalism” in toto in favor of a jurisprudence of right-wing authoritarianism in the prescribed Catholic-integralist mode, one that “is not tethered to particular written instruments of civil law or the will of the legislators who created them,” one that does not understand “liberty as an abstract object of quasi-religious devotion,” one that “does not suffer from a horror of political domination,” etc.

He engages in a bit of rhetorical base-stealing that already is tedious and familiar, calling his program “common-good constitutionalism,” cf. Senator Marco Rubio’s “common-good capitalism,” Sohrab Amari’s call “to fight the culture war with the aim of defeating the enemy and enjoying the spoils in the form of a public square re-ordered to the common good and ultimately the Highest Good,” et cetera ad nauseam.

Predictably, the usual people made the usual complaint — not mainly about Professor Vermeule’s views but about The Atlantic’s decision to publish them. This is how we talk about these things now: Professor Vermeule’s ideas must be bad, because Professor Vermeule is bad, which he must be, because only a bad person would hold such ideas. The conversation takes the form not of an argument but of an indictment, as is typical of our times. Professor Vermeule’s offenses include making jokes about making Mass attendance obligatory and celebrating Francisco Franco’s policy of arresting Communists and putting them on chain gangs as a form of rehabilitation through forced labor. I wrote to Professor Vermeule to ask about these, and he answered — and let me just say directly here that I do not believe him, even a little bit — “I don’t know what tweets you’re referring to.” He then suggested I should “find a better topic.” The pettiness of our new right-wing authoritarians is as reliable as the rotation of the Earth, if my fellow Catholics will forgive me for bringing up that sore subject.

Professor Vermeule’s holding certain views and communicating them in a journal that American progressives regard, not without some reason, as their own preserve of polite opinion is in these sanctimonious times to be understood as an offense against public morality. I suppose that Professor Vermeule must smile about that: Bringing back formal sanctions for offenses against public morality is central to the agenda of the sanctimonious anti-liberal project that he seeks to advance. I trust the irony is not lost on him. Reviving comstockery is a very amusing project for a man named Cornelius Adrian Comstock Vermeule.

Professor Vermeule is an étatist in the most direct sense, who describes his political project as an effort “not to maximize individual autonomy or to minimize the abuse of power . . . but instead to ensure that the ruler has the power needed to rule well.”

[L]aw is parental, a wise teacher and an inculcator of good habits. 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.

I suppose there is an ethical objection to be made to the extent that Harvard professors have a positive professional obligation to try very hard not to write stupid things.

It seems too elementary to need to be said, but: We write down laws for a reason. And if we are not to be bound by what the laws actually say, by what we have written down, then there is no law in any meaningful sense. There is only power and rhetoric — which, in fact, is the main contention of “critical legal theory,” which is founded on the familiar Marxian notion that everything is, when seen straight on, about the eternal class struggle. Critical theorists just dig out the ugly truth behind the façade of liberalism, democracy, human rights, whatever. I believe that Professor Vermeule has enough wit to understand that he and others like him have simply taken the intellectual apparatus of progressivism, with its contempt for individual liberties and its faith in the magisterial state, and proposed filling that box with right-wingery rather than left-wingery, albeit right-wingery of the anti-capitalist and anti-liberal kind: Not only will we have to do away with “libertarian assumptions central to free-speech law” but also “libertarian conceptions of property rights.” Another way of saying “libertarian conceptions of free speech and property rights” would be “free speech and property rights.”

This is a familiar kind of silliness, even sillier than Professor Vermeule’s dreaming of a fantastical “Empire of Our Lady of Guadalupe” accompanied by “the world government required by natural law.” That is not politics — that is a right-wing Catholic fantasy role-playing game, Dungeons & Dragons but slightly dorkier and much more sanctimonious.

But the less-exotic silliness is more immediately relevant. That silliness has a familiar source: It is the fact that specialists reliably overestimate the importance of their own fields. Lawyers believe that the way to reform the world is to change the law; it was a poet who thoughts poets “the unacknowledged legislators of the world”; the self-aggrandizing character of journalists is well-known; scientists often take a utopian view of science and erroneously believe that science can supplant politics, relieving us of the burden of disagreement; members of Congress, who spend their time sitting on committees, reflexively propose to solve problems by convening a new committee.

The law is important and powerful — as are science, poetry, etc. But it is not powerful in the way Professor Vermeule imagines it to be. He gets the arrow of causality backward: We do not have abortion and no-fault divorce because the law professors forced them on the people against their will; we have them because the people demanded them — they were not taught, habituated, or formed by the law, but something closer to the opposite happened. (It is worth keeping in mind that no-fault divorce and abortion rights were brought into force in no small part by the efforts of the nation’s most right-wing governor at the time, Ronald Reagan of California.) The law did not transform the people, even when it was construed, as in Roe, in a way “that it is not tethered to particular written instruments of civil law or the will of the legislators who created them,” i.e., when the judges impose their own moral preferences on the nation under color of law. The people transformed the law. The notion that an authoritarian state, unconstrained by liberalism and “libertarian” notions of rights, is going to reflect the moral vision of . . . a few dozen crackpot Catholic intellectuals, mostly within 125 miles of the Acela tracks, is preposterous.

Professor Vermeule is practicing a kind of Ivy League Trumpism. He derides the “defensive crouch” of originalism and demands instead a more forceful approach “that refuses any longer to play within the terms set by legal liberalism.” That is Harvard Law for “He fights!” (Again, more role-playing games.) But the American Constitution is a defensive document — it offers defense against the princely powers that Professor Vermeule would unleash, and defense against ochlocracy, the mob politics that would in fact dominate the magisterial state Professor Vermeule imagines taking its direction from the Magisterium. Not that there is any mention of the Catholic hierarchy in Professor Vermeule’s essay — Pope Francis seems to have cured the Catholic Right of its ultramontanism, leaving the Holy Father with only two more miracles to go for sainthood.

But there are miracles and there are miracles. That “defensive crouch” is the best thing we’ve got going — long live the defensive crouch in all its expressions: the Bill of Rights, federalism, separation of powers, the rule of law rather than the rule of overexcited Catholic converts . . . .

Words About Words

Ben Southwood, formerly the head of research at the Adam Smith Institute, writes about my hometown: “Lubbock, TX, is a city of 250,000 souls. I can’t find a single high street in the entire city & the ‘downtown’ in its Wiki pic is a gas station and hotel parking lot. Is it the largest city in the world without a ‘downtown’?”

“High street” is a British expression not commonly used in American English. It means a commercial street with shops. “High street” has a connotation of “mass market,” as in “high-street fashion,” meaning the sort of thing that you could buy at an American shopping mall.

“Downtown” in the sense of a core urban business district comes to us from New York City, where the business district was in the oldest part of the city — southern or “lower” Manhattan, hence “downtown.” Downtown meant shops and offices, whereas uptown was more residential and much less densely populated — families were operating farms in upper Manhattan until well into the 20th century.

The uptown-downtown convention quickly spread from Manhattan to other cities (indeed, the oldest surviving use of the term in print refers to central Boston), even when it made no geographic sense — most cities lack Manhattan’s strong north-south orientation, because they lack its unusual geography, being an eyot. (Or ait, pronounced like “eight,” meaning an island in a river. This is a word you probably will not see outside of Middle English, a crossword puzzle, or a conversation with an old Londoner, who may refer to the aits in the Thames.) It does not have very many competitors, but it does have a few: In Philadelphia, the center of the city is called “Center City” because “downtown” long referred to South Philly and, by metonymy, to the Italian-American mafia that once dominated that neighborhood. To say that a New York businessman has investors from downtown means that he got money from Wall Street; to say that a Philadelphia businessman has investors from downtown means that he got money from the mob.

Or a different kind of mob, anyway.

Downtown Lubbock as it had been ceased to exist on Monday, May 11, 1970, when an F5 tornado stormed through the city, leveling about 25 square miles of homes and businesses and killing 31 people. As I understand it, no tornado of that size has hit the urban core of a city since then. The tornado that just tore up Nashville was an F3, for comparison. The destruction of downtown Lubbock coincided with the beginning of the golden age of the American shopping mall; when the South Plains Mall opened in 1972, there was little incentive for retailers to return to “downtown” or remain there.

Instead, they kept moving down: Continuing in the long history of ignoring the geographic implications of the term, “downtown” Lubbock is far to the north and the east of the city’s geographic center as the city continues growing in a southwesterly direction. 

Rampant Prescriptivism

“Enormity” looks like it should mean “enormousness,” but it does not mean that. An enormity is not something big but something evil — something bigly evil. Intentionally starving 4 million Ukrainians to death in order to make a political point was an enormity, one of the many great crimes of socialism. But to remark upon the enormity of, say, Taylor Swift’s music sales entails a moral judgment that may not be intended.

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Home and Away

On the subject of shopping malls and their long decline, see my National Review report here.

My work sometimes appears in Portuguese, a language I do not speak, because I apparently am a little bit popular in Brazil, a country I never have visited. Here I am, on our coronavirus response, in Gazeta do Povo.

The excellent people over at the Foundation for Economic Education reprinted my essay on manufacturing and the superstition of “job creation” here.

My National Review archive can be found here.

Listen to “Mad Dogs & Englishmen” here.

My New York Post archive can be found here.

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In Closing

Professor Vermeule calls for a “substantive” right-wing jurisprudence, as opposed to a jurisprudence of process. This points to one of the fundamental differences between the classical-liberal tradition and the progressive position. For the classical liberal (the American conservative), justice as a legal matter is mostly a question of process: The parties are given their day in court, they present their arguments before an honest judge or jury, the law is followed, and a decision is rendered.

Hence Robert Bork’s rejection of “substantive due process,” which he rightly considered a contradiction in terms, a license for judicial activism “wholly without limits, as well as without legitimacy.”

In that famous flag-burning case, Justice Antonin Scalia did not rule according to what he wanted — to punish the flag-burners — but according to what the law says. The “substantive” model of justice says, Damn procedure and the letter of the law, I have things that I want, those things are good and just, and you must give them to me!

For progressives, the legal question is secondary to the political question: They will have their abortion rights, or their constitutional gay-marriage mandate, and they will take it on whatever terms they can get, simply back-filling in whatever pretextual legal “reasoning,” if you can call it that, serves for the moment. “Substantive” conservative jurisprudence is the same bad-faith model with a different policy agenda.

That is how advocates go about their business, of course: The defense and the prosecution both know what verdict they want when they go into court. What progressives — and Professor Vermeule — propose is to have judges take on the same role: Pick a side and put down on paper whatever hocus-pocus serves. That is why progressives fight tooth-and-claw to keep non-progressives off the Supreme Court — not because progressives are afraid that these judges will not give them a fair reading of the law as it actually is written but because they are terrified by the prospect that they will do exactly that. To reduce judges to the role of mere political factota undermines the idea of an independent judiciary and with that the possibility of responsible self-government. That kind of judicial politics already has done terrible damage to our republic and to the legitimacy of the very state that Professor Vermeule et al. would seek to aggrandize.

What Professor Vermeule is offering is not a philosophy of law — it is a temper tantrum: “I want! I want! I want!”

No, no, no.

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