Adrian Vermeule is Ralph S. Tyler, Jr. Professor of Constitutional Law at Harvard Law School, where he writes and teaches on administrative law and constitutional law and theory. He recently spoke with first things assistant editor Connor Grubaugh about three books on constitutionalism from a Catholic perspective.
The first book you’ve selected is Joseph de Maistre’s Essay on the Generative Principle of Constitutions.
Maistre here deals a short sharp blow to the liberal vision of contract and consent as the foundations of constitutionalism, a blow that was never successfully parried. The main thesis is that constitutions are begotten, not made; grown, not engineered; so that there is in effect no such thing as written constitutionalism. Maistre here deliberately overstates for literary effect; his exposition makes clear that, although of course there are written things that purport to be constitutions, they at most restate antecedent unwritten law, and are not causally efficacious in structuring what lawyers call “the small-c constitution”—the actual operating rules and norms of a political order. (The precursor of the Essay was a chapter in Maistre’s Considerations on France, which applied a similar analysis to the Revolution and its failed experiments with written constitutionalism.)
Maistre embeds this insight in a more general account of the divine origins and growth of constitutions. The English constitution, “the most propitious equilibrium of political powers that the world has ever seen,” is best described as a gigantic unintended consequence, the result of human action but not of human design. Maistre sees here an instrument of the Divine Hand, which invisibly designs constitutions through the cross-cutting plans and political blunders of the unwitting agents of Providence.
Is Maistre’s illiberal constitutionalism compatible with the American system of law, and the ideals presented in America’s founding documents?
It’s complicated. Maistre saw the U.S. Constitution as largely a restatement of the traditional rights of Englishmen, and hence less arrogantly rationalist than the French constitutions. Yet his mockery of the rationalist project of Enlightenment constitutionalism certainly encompasses the central ambition of the Federalist Papers: to “establish good government from reflection and choice,” as opposed to “accident and force.” Maistre was most skeptical of the most intentional and innovative parts of our Constitution; today, he would certainly observe with elegant sarcasm that the innovations the Framers prided themselves on have become vestigial (the Electoral College), whereas they failed to anticipate the main operating mechanisms of our small-c constitution, such as the administrative state and presidential government. Less comfortably for liberal-democratic sensibilities, he might also applaud those developments as harbingers of a new monarchism. The U.S. Framers and ratifiers, like other constitution-makers, were but agents of Providence, wittingly or unwittingly.
Your second book is Bl. John Henry Newman’s Who’s to Blame? What did Cardinal Newman have to say about constitutionalism?
This second recommendation isn’t really a book. It’s a series of eight long letters to a Catholic publication that Newman wrote in 1855. The letters, occasioned by the Crimean War, amount to a mini-treatise on British constitutionalism. But they transcend their context and offer a precise and clear-headed account of the competing risks and trade-offs present in constitutionalism generally—particularly the central trade-off between limiting agency on the one hand (the vertical exploitation of the governed by the governors), and limiting lawlessness on the other (the horizontal exploitation of the governed by one another). Although Newman allows more scope for intentional political action to shape the constitution than Maistre does, he joins Maistre in rejecting the core liberal model of written constitutionalism. For Newman, a constitution is “a set of traditions, depending, not on formal enactment, but on national acceptance.”
An interesting feature of Newman’s constitutionalism is its relentlessly optimizing and consequentialist character. Neither the risks of government, nor the risks of not having government, can be strictly minimized, because the costs on the other margin would become unacceptable. Rather an institutional equilibrium must arise or be established, one that shifts with changing political circumstances. In Newman’s words, which read as though they might have been written by Samuel Johnson or by Bentham, “no one in this world can secure all things at once, but in every human work there is a maximum of good, short of the best possible.” Apart from moral side-constraints on public action, Newman implies that the basic problems of constitutionalism lie within the space of the determinatio—the space within which political ends may be pursued through differing institutional forms, with optimizing prudence as the master principle.
Is Newman’s idea here that most constitutional questions are matters of custom rather than natural law?
Not necessarily; not exactly. The space of the determinatio, the space within which constitutionalism falls, is the zone of rationally arbitrary choice, in which the purposive project of the common good under-determines the precise institutional and legal forms of public arrangements, so that multiple constitutional forms and sources are possible. Custom is certainly a possible source of constitutional law, but it may or may not play a role, depending upon circumstances.
Your final recommendation is Roman Catholicism and Political Form, by the German theorist Carl Schmitt.
This is my favorite work of Schmitt’s, and one of his own favorites. It offers both a grim vision of the spiritual and cultural wasteland of technological and economic liberalism, on the one hand, and a grand vision of the Church’s eventual triumph and universal dominion, on the other. While liberalism curiously attempts to deny its own political character, in a colossal society-wide system of bad faith, the Church is authentically and autonomously political, precisely because it is rooted in the transcendent. It will eventually remain standing after, and because, liberalism negates itself through self-contradiction. He writes: “Should economic thinking succeed in realizing its utopian goal and in bringing about an absolutely unpolitical condition of human society, the Church would remain the only agency of political thinking and political form. Then the Church would have a stupendous monopoly: its hierarchy would be nearer the political domination of the world than in the Middle Ages.” (I offer a full reading of the work in a forthcoming piece, “The Ark of Tradition.”)
Critics of liberalism often seem to make two claims: first, that a political order founded on procedural norms and negative freedoms is socially destructive and morally pernicious; and second, that such an order cannot really exist, because every society is organized around some illiberal view of the common good. Is there a contradiction between these two claims?
A question that deserves a book. I’ll say only that there is no contradiction, because the first half of your antinomy refers to an internal critique that asks whether liberalism accomplishes its professed aims; the second half refers to an external critique that describes liberalism’s real aims, refusing to accept its premises and self-description, especially its pretense of neutrality. One hallmark of liberalism is a kind of organized bad faith: Even to itself, it denies its own substantive character, illiberalism and intolerance.
Last question: Any advice for Catholic lawyers?
Let me appropriate someone’s analogy. The Catholic shoemaker isn’t the one who merely does good work; the Catholic shoemaker makes an excellent shoe whose design is integrated with a decorative cross. To ornament and anoint the living body of the Church through our work pleases God, apart from utilitarian benefit (Mt. 26:6–13).
Adrian Vermeule's review essay, “Liturgy of Liberalism,” appeared in the January 2017 issue of first things. His most recent book is Law’s Abnegation: From Law’s Empire to the Administrative State.