In 2016, I was studying the rise of the National Socialist movement. My project was to investigate the philosophical origins of the National Socialist German Worker’s Party—that is, the Nazi Party. That story is a complicated one, since National Socialism was not a cohesive philosophical movement in itself. It was constituted by a variety of different threads: the master morality of Friedrich Nietzsche, the philosophy of Otto Weininger, Darwinian population medicine, and a number of other influences.
It was during this work that I encountered the work of Nazi jurist and political philosopher Carl Schmitt, famous for his legal justification of Adolf Hitler’s rise to power. Back in 2016, Schmitt’s work was coming again into the public eye, thanks in large part to the influential Harvard Law professor Adrian Vermeule. Schmitt’s sharp critiques of liberalism and his theories of law and politics, Vermeule argued, could be separated from his Nazism, and that to ignore these insights on account of Schmitt’s politics was mere “puritanism.”
More recently, Vermeule has made waves with his idea of “common good constitutionalism,” a new theory of legal interpretation arguing the executive branch can read into the law its own determinations about what serves the common good. (This is in contrast to the traditional notion that the courts make final determinations on constitutional questions.) In making this case, Vermeule makes liberal use of classical philosophical terms like “common good” and “natural law.”
Vermeule’s theories, however, should not be taken as representative of the tradition whose language he borrows. Rather, his project is fundamentally Schmittian and should be distinguished from wider theories about natural law and the common good. The significant and serious risks in Vermeule’s project are not inherent in either natural law or common good political thought themselves. It would be a shame to throw out a tradition of thought, the tradition of natural law, that has so much to offer our public life because of a certain odorous bathwater.
For the past several decades, Adrian Vermeule has been making an extended case for a more powerful executive branch of government. In the wake of the Iraq War, he co-authored The Executive Unbound, which made the case that legal constraints on the executive are really a fiction, and that American legal thinkers have overblown the need for separation of powers and the rule of law. In the modern era, given how quickly technology, markets, and foreign policy dynamics shift and how complex governance is, the legislature and courts are increasingly irrelevant. The executive is, or at least ought to be, “legally unconstrained,” he wrote.
Vermeule draws this line of thinking from Schmitt, a legal academic in early 20th century Germany and the “crown jurist” of the Nazi Party. Schmitt played an important role in the early days of the Reich as chief legal counsel in party meetings. He wrote legal opinions for the party, drawing on his theories about the executive and the state of emergency, in order to justify Hitler’s rise to dictatorial power and the extra-legal murders during the Night of the Long Knives.
As the executive, sole power for determination with regard to the state of emergency—when to declare it, what it meant, and how long it would last—rested with the fuhrer. In this historical case, one element of the emergency was the existence of enemies of the party in important public positions. The fuhrer was, therefore, according to Schmitt, well within his proper role in ordering their killing or removal. Just as Vermeule claims that the executive’s power rests not on what is granted to him by law but on the support of the people, so Schmitt claimed that Hitler’s acts were justified because he had a special “affinity” with what was popular among the German citizenry.
Vermeule and his coauthor, Eric Posner, argue in The Executive Unbound that it is unreasonable to be afraid of tyranny on the part of an executive who is legally unconstrained, because public opinion itself will limit the administration’s power (they have to worry about being ousted or about a lack of political will among the people). This, however, is precisely why Schmitt thought Hitler was justified in his policies: namely, because the German people wanted them.
In the ensuing years, Vermeule has applied a Schmittian analysis to the administrative state—that is, to federal agencies acting under the executive. In articles like “Our Schmittian Administrative Law,” and books like Law’s Abnegation, he has argued that, inevitably, legislatures leave gray areas and gaps in the law, within which agency officials would have an unlimited breadth of action and judgment.
The rise of the administrative state has long been a concern for originalists, who bemoaned the legal doctrine known as Chevron deference (overturned last year by the Supreme Court) which held that courts should defer to agency judgments in matters of the agency’s own expertise. Many originalists regarded the legal doctrine as a problematic violation of the separation of powers since it gave unelected members of the executive wide latitude to exercise lawmaking power via regulations, unchecked by the courts or by Congress. Such a vast expansion of executive power opens the door to abuses of power, they maintained.
But for Vermeule, this is a feature of the administrative state, rather than a bug. It is precisely with the executive, unfettered by law, that this kind of power should rest. “As for the structure and distribution of authority within government,” Vermeule writes, “common-good constitutionalism will favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality with a view to promoting solidarity and subsidiarity. The bureaucracy will be seen not as an enemy, but as the strong hand of legitimate rule.”
Finally, in Common Good Constitutionalism, his most recent book, Vermeule argues that it is within the executive’s prerogative to read into the text of the law its own judgments on what serves the common good. This prerogative, further, ought not be limited by ideas about the original public meaning of the Constitution or later statutes.
Originalists have long argued for their position on the basis that straying from the original public meaning of the text in favor of “reading into” the text the policy priorities of a given judge effectively untethers judicial and executive action from the law altogether. It provides no principled limit to a judge’s ability to disregard the actual meaning of a law in favor of his or her preferred policy objectives.
Here again, this kind of wiggle room is what Vermeule likes, and he likes it not just for judges but for administration officials. In Common Good Constitutionalism, as legal scholars William Baude and Stephen Sachs note, Vermeule’s motivation for attacking originalism seems to be that it has failed to achieve his preferred policy ends (among these are a stricter public health regime, the curbing of elite liberal wealth, and forming “better beliefs” among the public). For Vermeule, the limitations of original public meaning are too constraining.
Despite the introduction of natural law and common good language in his most recent book (following on Vermeule’s recent conversion, in 2016, to Catholicism), that work’s project is the same Schmittian one that Vermeule has been on for decades. Additionally, the elements of Schmitt’s thinking that Vermeule affirms were not incidental to Schmitt’s support for Hitler, but constitutive of it. It was on the basis of the very theories that Vermeule affirms that Schmitt gave to the Nazi party the justifications it needed for dictatorship and political murder. I do not think this is the outcome Vermeule wants. But it is a grave misjudgment to think there’s a nugget of gold hiding within the mottled stone of Nazi jurisprudence.
Again, Vermuele’s latest work has a distinct flavor from his earlier writing, in that it makes liberal use of “the common good” and “natural law” and of quotations from Thomas Aquinas.
The term “natural law” refers chiefly to a tradition of ethical, not legal, thought. It is a tradition as broad as it is deep, and includes ancients like Aristotle and the stoics, medievals like Aquinas and Ibn Sina, and moderns like Hugo Grotius and Jean-Jaques Burlamaqui. On the other side of the world, it includes also the epochal philosophers Mengzi and Zhu Xi. These thinkers are united by the idea that ethical truths can be drawn from facts about human nature.
Within the natural law legal tradition in America today, Vermeule is decidedly on the outskirts. The leading thinkers in this world are people like Jeff Pojanowski, Kevin Walsh, and Robert P. George, none of whom would agree with Vermeule’s particular application of classical or natural law terms and traditions. Where Vermeule sees the meaning of law as open to the unconstrained interpretation of the executive, Pojanowski and Walsh ably argue that the classical tradition has more to say in favor of faithfulness to the original public meaning of duly promulgated law. The differences between these thinkers is enough to show that Vermeule’s line of thought should not be taken as representative of the natural law legal theorists at large.
The strength of natural law theory is that it holds that ethical and political debates may be grounded in facts about human nature that are accessible to all. This does not mean that the answers to moral and political questions are obvious or easy. It simply means that it is possible for us to argue, disagree, deliberate, and reason together constructively, because we all have access to some degree of common ground upon which to argue.
To understand natural law in the American tradition, you might turn to Hugo Grotius, the Dutch natural law legal theorist of the Early Modern era and an influential figure in the legal landscape that shaped America. Working mostly in the early 17th century, Grotius was facing a newly diverse, pluralistic, and interconnected world, one in which the dictates of particular religious traditions would not have universal sway. Was it ever possible to come to any kind of agreement about moral life and the law? Grotius thought so, because essential facts about our human nature, like the fact that we are rational and social animals, are universal, and can ground our deliberation about what constitutes the human good. In his great work, De Jure Belli, Grotius argued that natural law is “a dictate of right reason” based upon human nature, one which could ground the laws of engagement between diverse nations.
We still find ourselves in the same situation: a pluralistic and diverse society. Natural law allows us to govern together based on certain fundamental facts about human nature. We will all bring our own biases and interests to the table, but—unlike the executive branch Vermeule would make all powerful—the legislature is specifically designed for bargaining, reasoning, deliberating, and accommodating in order to achieve stable, moderate, and reformable governance through law. Natural law theory supports the idea that this kind of deliberation is possible, and that politics can be something more than raw expression of preference and power.
In a legislative body, members will bring many resources to bear in making judgments about what is and is not good law. For deliberation to be possible, however, there must be some common ground, some public set of reasons accessible to all. Otherwise the parties are at an impasse. Natural law holds that this realm of public reason really is accessible to us through observation of human nature. In the rationality and freedom of the human person, for instance, we might be able to ground arguments about rights; in the sociality and fellow-feeling of human nature, we might be able to ground arguments about duties.
This does not mean everyone will come to the same easy conclusions, it just means that there is a common, non-sectarian discourse within which reasons can be exchanged. Natural law holds that there really are objective claims we can make about what is good and bad for the human person. Aristotle, in the Nicomachean Ethics, makes his famous “function argument” to express how this works. In looking at any natural thing, we determine what is good or bad for it based on its characteristic functions. Thus, we know that it is better for a dog to be able to run and play and be with other dogs than to be legless, caged up, and alone. This is because we can observe the nature of the dog is to run, to play, to be social.
So it is with human beings. Our characteristic functions include our health, security, but they also include distinctly human things, like our freedom, sociality, and rationality. Early Americans thought that the law should protect certain liberties, like freedom of speech, worship, and expression, because these were conducive to the characteristic functions of free and rational creatures.
But this exchange of reasons, this deliberative practice where, as a group, we try to come to practical arrangements in accordance with human flourishing and the common good, does not satisfy Vermeule. He would like government to instantiate his own conception of the common good without compromise and deliberation. In his picture, the executive will be in the best position to decide difficult questions of politics and morality. But how can we be sure the executive will use this awesome power well? On the one hand, in The Executive Unbound, he says that public opinion will constrain the executive, but in Common Good Constitutionalism, Vermeule claims that the executive will do what’s best for the people whether they like it or not. How we guarantee that the executive will be so wise, restraining itself from using its unchecked power tyrannically, remains a mystery.
Vermeulism also should not be taken as “the Catholic position.” Although Vermeule quotes St. Thomas Aquinas—a towering figure in the natural law tradition—in support of his legal theory, whether Vermeule’s view represents Aquinas’s, let alone the actual teaching of the Catholic Church, is debatable. Pope John Paul II, in his 1991 encyclical Centesimus annus, affirmed that there should be a balance of power between executive, legislative, and judicial, with the law reigning over all. “This is the principle of the ‘rule of law’,” John Paul II wrote, “in which the law is sovereign, and not the arbitrary will of individuals. … Authentic democracy is possible only in a State ruled by law.”
What is more, Vermeule bases his thinking on the political theology of Carl Schmitt. But no less an authority than Joseph Ratzinger, who would later become Pope Benedict XVI, wrote in 1970 that it was “impossible” for a Catholic to adhere, as Vermeule seems to, to Schmitt’s “political theology.”
Our constitutional system, inspired by the writing of Aristotle among others, is designed with human weakness in mind. An unbound executive was precisely what it meant to avoid because the Founding Fathers recognized, as Aristotle did, that an executive unconstrained by law is a tyranny, and that those in whom such power was concentrated were likely to be corrupted by power. Aristotle thought that it would be lovely to have a perfectly wise and just monarch, but recognized that, human nature being what it is, a tyrant was much more likely.
The solution of our founders was the elaborate system of separation of powers and of checks and balances. And even further, the founders, as expressed in The Federalist and elsewhere, did not believe that their system was self-enforcing or self-constraining. They understood that it could devolve into tyranny in various ways. As John Adams said, our Constitution is only fit for a moral and religious people, and any other would “go through it like a whale goes through a net.”
The founders also believed that, fallen as human nature is, it could still rise to virtue under the right cultural influences and within a well-designed constitutional system. The Constitution is designed for people who have the virtue to adhere to, rather than violate, its limits. As administrative law scholar Adam White argued in his review of Law’s Abnegation, the rise of a more imperial presidency is not a historical inevitability, but a consequence of a lack of public virtue. The loss of the rule of law is, in some respects, a matter of choice.
Today, perhaps, we face a choice. Do we still believe in the Constitution handed down to us, or do we want to slide toward Schmitt’s authoritarian vision? It is a vision that could be embodied on the right or the left alike.Vermeule’s theory and that of the founders both made use of the idea of natural law. If we accept Vermeulism, let us at least not say that natural law made us do it.
