The Maistre of Harvard Yard

A signal aspect of Donald Trump’s presidency is the party base’s unrelenting support of him. An underappreciated component of that base is the conservative legal movement. This group is comprised of conservative and libertarian law professors who espouse constitutional “originalism,” the Federalist Society (in both its judicial lobbying shop and debating society guises), self-styled public interest religious and libertarian litigation-production firms, and the conservative donors that allow this alternative legal knowledge structure to flourish. Unlike the Never Trumpers—as a forthcoming book shows, the GOP’s banished policy brain—the conservative legal movement has been delighted with, some merely acquiescent in, the Trump administration’s constitutional politics. These legal “technocrats” see much to like in Trump era constitutional political development. Having convinced themselves there is a meaningful distinction between Trump’s unfortunate vulgarism and his administration’s praiseworthy judicial nominations, the erstwhile tagline “But Gorsuch,” explains well their more, sometimes less, cheerleading for the administration.

Adrian Vermeule has long occupied an unusual position within the conservative legal movement. Though a thorough-going conservative, this former Scalia clerk and administrative law professor at Harvard often made sport of “originalism” as a thin guise for standard-issue GOP legal policy goals. Vermeule styled himself a serious scholar and originalism, for him, wasn’t serious. And there he may have sat, pumping out law review articles on administrative law and Schmittian-inflected monographs on executive power. But after his high-profile conversion to a traditionalist Catholicism in 2016, Vermeule has transformed himself into a full-blown public intellectual, throwing punches at liberals and (in his view) benighted conservatives alike. Now, with his recent constitutional manifesto in the Atlantic, intentionally meant to cause a stir, Vermeule has very publicly upped the ante. Shoving “originalism” to the side (it has “outlived its utility”), Vermeule’s “Common-good constitutionalism” is a call for a Catholic integralist Constitution with “a powerful presidency ruling over a powerful bureaucracy.” In short, this is a Catholic authoritarian governing system enforcing its particularized vision of the “common good.”

Less interesting than the intellectual merits of this mishmash of Carl Schmitt and Catholicism is what it tells us about the constitutional politics of the GOP. The politics of the GOP’s coalition of social and economic conservatives have always been replicated in miniature in the politics of the conservative legal movement. On Capitol Hill and the Supreme Court, economic conservatives and libertarians have been the senior partner in the coalition and religious and cultural conservatives—fixated on abortion and LGBTQ+ rights—their increasingly rambunctious junior partner. With this splashy piece, Vermeule’s proximate target is not small-L liberal democracy, but, for now, economic conservatism’s focus on property rights and economic rights which cashes out in tax cuts and attacks on the administrative state.

The central cleavage is abortion. Many libertarians have long downplayed reversing Roe v. Wade as a third-order goal. In order to bridge this coalitional gap, the internecine fights over abortion in the conservative legal movement have long been salved with an awkward, for this purpose, constitutional medicant: states’ rights. As Reagan Attorney General Meese promised a Clergy for Life rally in 1987, the Reagan administration was working to appoint justices and judges that would relegate Roe alongside “Dred Scott on the ash-heap of history . . . then the states will be free to act.”

The constitutional terrain, however, has fitfully moved rightward since 1987. With a five vote ideological majority on the Supreme Court now in hand and the lower courts well-stocked with young turks filled with constitutional certitude, for cultural conservatives this good enough is no longer good enough. Social conservatives have long paid public fealty to originalism, but their central political goal has always been to ban abortion—simply returning the politics of abortion to the states does not ensure complete success. Originalism’s focus on text and history left little room for a “right” to life based on constitutional language.

So, in a melting pot brew of Straussian-inflected political theory and the Catholic natural law tradition, these actors have kept on the backburner a body of thought that emphasizes the Declaration of Independence’s promise of the “unalienable” right to life. When talking amongst themselves in low-salience venues, this has long been their constitutional grammar for outlawing abortion. From the Human Life Review—established in the wake of Roe—to Charles “Chuck” Colson’s best-selling (in evangelical circles) How Now Shall We Live? these social conservatives have long grumbled about the conservative justices’ and legal elites’ relative lack of attention to the right to life they find in reading the nation’s founding documents.

If we understand this, we can better understand Vermeule’s crashing of this party. Leveraging the decades of intellectual and political work of many others in the movement, Vermeule is staking out his claim to be the junior partner’s well-credentialed intellectual messiah. At bottom, though, Vermeule is simply repackaging (“reassociating”) others’ ideas into an ostensibly original “Common-good constitutionalism” that extends his predecessors collective ideational work to their authoritarian conclusion. By spending down the cultural capital of his chaired appointment at Harvard Law School, the maistre of Harvard Yard is demanding that conventional conservatives sit up and take notice of his “new” and troubling constitutional philosophy.    

It is unlikely Vermeule will be successful is displacing the GOP’s reliance on “originalism.” Too much intellectual and legal policy work—never mind numerous curriculum vitae and paychecks—depend on propagating or “debating” this constitutional philosophy. More plausibly, Vermeule and his fellow Catholic integralists may now be invited to Federalist Society “debates.” This would serve to further mainstream the authoritarian tendencies evident in GOP and conservative politics. If the Federalist Society, and the purportedly anti-Trump conservative and libertarian law professoriate, are serious about the necessity of the “rule of law,” they should ignore Vermeule’s temptation.

Finally, those who style themselves the intellectuals of the Federalist Society might reflect that if indeed “winter is coming” how their own political project created space for Vermeule’s authoritarian constitutionalism. Reducing the Constitution to synonymity with conservative and libertarian political goals with the bad faith subterfuge of originalism has opened the door to a frank ideological project like Vermeule’s. The conservative legal elites, like their establishment predecessors just a few years ago, thought they had the tiger by the tail. Their grip is slipping.            

Hello. My name is Calvin TerBeek and I’m a political science PhD candidate at the University of Chicago. My work is focused on party politics and judicial politics from the Progressive Era to Trump. More specifically, I’m interested in how party politics helped create the constitutional politics of the Democratic Party's legal liberalism and the GOP's constitutional originalism. Before coming to Hyde Park, I clerked for two judges and practiced commercial litigation for large and boutique firms. For more, please see my c.v. -- http://calvinterbeek.com/

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