Double Aspect

A conference on the work of Charles De Konninck is to be held at the Université Laval. Very well. I am not part of it and would not normally be writing about it. But there is something special about this one, namely its keynote speaker: Adrian Vermeule. Now, Professor Vermeule is, on paper, the kind of person who gets invited to give keynotes. He is a professor at Harvard, a big name in constitutional and administrative law since the turn of the century, the rare academic who has a Wikipedia page, as do both his parents and indeed multiple generations of ancestors. But Professor Vermeule is different, too.

He is, after all, the godfather of what he calls common good constitutionalism. He’s written a book by that name, presenting ostensibly a novel approach to the interpretation of the US Constitution which combines Ronald Dworkin’s “moral readings” with a version of Catholic natural law. And beyond the book, he is a prolific public intellectual, most notoriously with a 2020 essay in The Atlantic and his substack. Further still, Professor Vermeule is the spiritual and intellectual leader of a coterie of right wing legal scholars that sets itself up against what they see as simultaneously empty and destructive liberalism and libertarianism, and in favour of his vision of “substactively conservative” legal thinking.

Like his acolytes, Professor Vermeule is also, as I have argued here, a deft practitioner of the art of motte and bailey and his views are not always easy to pin down. Indeed, though they do not say it in so many words, this is an important part on Stephen Sachs and William Baude’s argument in their—quite devastating—review of Common Good Constitutionalism. Nonetheless, some things are reasonably clear.

Above all—and this is a throughline in his work since long before his embrace of Catholic natural law and the attendant Common good language—Professor Vermeule is in favour of strong, and probably unlimited, government power. First it was in the name of public safety, but now it is in the name of the common good so the principle applies across any conceiveable area of government action. A strong government is not to be hemmed is by the courts, least of all counts applying standards of individual rights. Indeed some of these—the right to abortion for example—are to be stamped out not just from the law, but from the realm of what is even thinkable.

As for due process rights—well, Professor Vermeule would remind you that there too can only exist insofar as that is consistent with the common good. So stunning and brave is this fearless truth-teller that he would remind you of this just at the moment when the President of the United States is despearate to prevent courts from interfering with his deportations of people who have not been proven to have done anything wrong to the worst prison of the Western hemisphere.

Some sort of democracy can probably exist ir Professor Vermeule’s world, but just who will be able to vote, and whether a legislature will be able to check the action of the executive and the bureaucracy, those are separate questions. And it is, to say the least, not obvious that the answers are “everyone” and “yes of course”.

In sum Professor Vermeule’s intellectual project is aimed at the subversion and replacement of the American—and Canadian—constitutional order based on a limited goverment accountable to voters and to to courts and respect for individual nights. In a phrase used by his fellow post-liberal Patrick Deneen, it is regime change.

Now, to be clear, I do not say this to advocate any sort of punishment or reprisal against Professor Vermeule, his disciples, or people who think well enough of him to invite him to be a keynote speaker. I believe that academia needs to be far more ideologically neutral and open-minded than it has been in the last 10 years of more. I have made that case here in relation to hiring at Canadian law schools, and elsewhere in a broader context. Professor Vermeule and his followers, just like left-wing authoritarians—whom they greatly resemble—need to be tolerated in academia. Sometimes good scholarship requires one to engage with them, as indeed I have done on a number of occasions on this blog. This is not because there is necessarily anything tremendously valuable in their intellectual project, but because rigour and intellectual honesty compel us to address, at least up to a point, even very bad arguments against our views.

But that is a different matter from awards, recognition, and the like, including invitations to deliver keynotes. These things are not matters of neutrality and tolerance—they are endorsements. Not necessarily signs of wholesale agreement, to be sure, but endorsements all the same, signs that the person singled out for them is in some sense deserving or exemplary. They are quite different from simple invitations to take part in a conference with a view to an exchange of ideas. Members of a conference panel are put on an equal footing and the panel as a whole is, in principle, set up as a venue for discussion. (The Federalist Society Lawyers Conference panels, which almost unfailingly include at least one ideological dissenter and are given ample time for interaction among the panelists, as well as a Q&A, are the best example of the form.) A keynote speech is, even physically, presented as a lecture—it is set up for a particularly important person to deliver his or her thoughts to an audience, not to exchange views even if there is in fact time for a Q&A at the end.

Professor Vermeule should not be given this sort of honour. Not because I simply do not find his ideas sufficiently compelling—that is obviously an assessment over which people can disagree. But because his views and actions are anti-intellectual and anti-scholarly, as well as immoral. He wants to make ideas unthinkable—and to use the force of the state to do so. He would gleefully censor his intellectual opponents, just as he already blocks them on Twitter before they have ever interacted with him. He encourages followers who simply refuse good faith scholarly discussion. He winks and nods at lawlessness and oppression. He is not a model and an example to other scholars. He deserves condemnation, not praise.

To say so—and to say that people who do not understand this are intellectually and perhaps even morally at fault—is not to engage in cancel culture. To repeat, the point is not that Professor Vermeule or anyone else should be driven out of their work, or even simply ignored as unworthy at engagement. But they should not be rewarded and praised for pursuing an intellectual project that cannot be disassociated from authoritorian politics and is altogether antithetical to what academics ought to stand for. Contrary to the caricature that Professor Vermeule is only too happy to adopt, liberalism doesn’t commit one to being amoral or to refraining from judging people, let alone ideas. I am judging Professor Vermeule, and I am judging those who think him praiseworthy. They are free to rebut that judgment, but not to claim that it doesn’t belong in polite society.