Adrian Vermeule uses a fundamental question to fashion a straw man and justify abandoning the constitutional order. There is a better way.
Adrian Vermeule uses a fundamental question to fashion a straw man and justify abandoning the constitutional order. There is a better way.
I n his latest essay at the Postliberal Order Substack, Harvard law professor Adrian Vermeule takes aim at conservatives (or, as he likes to call us, “right-liberals”) who resist the post-liberal call for the vigorous exercise of unfettered political power. In it, he uses my recent Law & Liberty piece, “A Maxim for Power-Skeptical Conservatism,” as an example of a naïve failure to recognize that power inevitably infuses all aspects of social life.
To make his point, Vermeule considers two forms of the question “Who decides?” What he calls the “local” question is the familiar issue of how political authority is distributed between various political institutions. The “global” who-decides question is more abstract, asking whether anyone must make such decisions at all. Can’t we allow everyone to decide the issue for themselves, keeping government neutral? To this, Vermeule has an emphatic answer: Every public question is inevitably decided by an exercise of some form of power. We might as well embrace it.
His position depends on the belief, long championed by progressive liberals, that there is no meaningful distinction between state action and state inaction because the latter is merely an affirmation of the status quo — of the various power dynamics already at work in society. When government opts not to decide a particular public question, it empowers other actors within society to make decisions — potentially ones that may be wrong, that may constrain the free choice of others, and that may be socially harmful. Moreover, these social actors can all call upon the aid of the law’s baseline protections to defend their existence and their choices, so the law is always taking a position. Vermeule lists “landlords, corporate personnel departments, and social media monopolies” as his examples, opting not to include parents, churches, private schools, and other less sinister social authorities that also enjoy the law’s protections.
Vermeule’s answer to the global question isn’t wrong — in a certain sense, at least. And it may work to undermine the extreme individualist position that the post-liberals so often use as their straw man. But his great revelation does not upset the conservative case for limited government in the way that he suggests it does. He fancies that his answer to the global question pulls the veil off the various institutional structures that limit political power by showing that they merely shift power around, rather than eliminate it. Once we realize this, Vermeule suggests, we should give up the charade and embrace a bare-knuckled fight for absolute control.
Consider his language near the end of the essay. Though he acknowledges near the outset that power might be “parceled out between or among . . . institutions,” and that the various ways to answer the local who-decides question are “important,” by the end he speaks entirely in the singular about the possible uses of power:
The law always has a living voice. Whose voice will it be? Will it be the voice of someone who believes, say, that teachers’ unions should have sole control of the public school curriculum . . . or will it be the voice of someone who believes the opposite? (Emphasis added.)
Similarly, in his concluding quotation of J. F. Stephen, he endorses the concept that “one of us two must rule and the other must obey.”
Vermeule’s argument has shown only that there can be no purely unrestrained personal choices — that, when the law seems silent, our “free” actions and choices are hemmed in and constrained by various powers around us, all of which have some background legal support for their actions. But he would have us jump from this fact to a zero-sum, winner-take-all battle between Vision X and Vision Y.
Yet for power-skeptical conservatives (and, I would venture, most classical liberals, too), the most important political question is about the diffusion of power, not the elimination of it. There are ways of answering this question that, though they guarantee neither a perfect society nor any form of absolute, unconstrained personal choice, nevertheless offer an alternative to Vermeule’s vision of politics as perpetual struggle. Indeed, that alternative is constitutional self-government.
Conservative constitutionalism starts with a recognition of the obvious difference between the unfettered exercise of state power and the limited and contingent power of “personnel departments and social media monopolies.” While the latter may be onerous and may sometimes unjustly upend individual lives, it is not the power of a single vision over all others; it is not at all “the power to bind all” that Vermeule claims it is. These little bureaucratic empires, even those that share many of the same values, are not all going exactly the same way, and all are hemmed in by the broader social context that sometimes empowers them and sometimes chastens them. For they are all limited by our ability to call upon the baseline protections of law for ourselves, by our ability to change jobs, to leave unions, to move states, or simply “log off.”
While these might not be absolute cures for social disease, we would have no such recourse against unfettered state power “to bind all,” which could follow us anywhere, penetrate into the sanctity of our home, seize our children, and even legally take our life. In their ability to coerce, even private monopolies pale in comparison to the ultimate monopoly backed by the force possessed by the state. (Consider the enormous difference between a business — even the largest ones in the world — choosing to require vaccination for its employees or patrons, and a government policy that, in the name of the common good, forces the unvaccinated “to remain confined to their homes at all times, except for emergencies.” If I read his arguments correctly, Vermeule would seem to have no moral objection to such a policy choice.) Thus, even in an unhealthy society in which corrosive values are utterly ascendant in the halls of social and corporate power, we remain free to read books, publish essays on Substack, send our kids to schools, and attend churches centered around out-of-fashion truths.
So long as political power remains silent on a question, then, society may answer it and exercise power to enforce its answer — but only in ways that are contingent, limited by side-constraints, and always open to exposure and challenge by those cognizant of its errors. This vision of social order, Roger Scruton explained, aims at “cooperation between free and rational beings, and ensures that, acting together, they will not be subordinate to the ‘I’ attitude of any particular person or group of persons, but will always be shaping themselves as a ‘we.’”
Of course, instinctive skepticism of concentrated state power should not lead to hatred or rejection of government. Well-established, constitutionally limited government serves as an essential bulwark of a free society, establishing, reforming, and enforcing the baseline rules of social conduct. But constitutional government ensures that this political power comes only from a broad source — from the community itself — by running it through complex institutions that demand consensus to put government into action. It ensures that when power does command us absolutely, it is not the product of one person or one group, but can at least make a reasonable claim to be the voice of “we.”
Vermeule does not hide his antagonism toward constitutionalism, remarking several times about how comfortable we ought to be with “living human authority” — with the inevitable rule of man rather than dead law. This is, of course, contrary to thousands of years of constitutional ideas. By embedding human rulers in a system of agreed-upon rules and institutions that divide them, overpower them, predate them, and define the limited nature of their authority in the public mind, we make their power more gentle, more agreeable, and more likely to be an expression of society itself. Vermeule seeks to cut through all this, exposing the constitutional regime as a product of man exercising power. He would have us believe that we therefore ought to think only of which man ought to be able to control all.
Thinking, once more, of the global question: Is the conservative constitutional vision not just one rival conception of the good society among others? Well, yes. But it is not the vision “of one moment or one man.” Rather, it is the product of the myriad decisions a society takes over time in response to threats to its internal peace or justice. It is also a constrained vision — one focused on the specific and limited role of the state in ordering and preserving relationships among free citizens, taking them for what they are. Considering that social bond itself to be one human good among others, it protects the freedom to pursue full human flourishing but does not invite the perpetual conflict and likely social disintegration that emanates from attempts to politically decide practically intractable questions about the comprehensive human good.
We shouldn’t buy the post-liberals’ false dichotomy of limited government versus the common good. We can show, rather, that a true common good is better pursued by skepticism of and limits on political power than through confidence in man.