Nudging Toward Theocracy: Adrian Vermeule’s War on Liberalism

Nudging Toward Theocracy: Adrian Vermeule’s War on Liberalism

A generation of thinkers was raised in the orbit of centrist technocracy. As its luster continues to fade, strange new gods will arise in their midst.

Liberalism has been an easy target in recent years, blamed for everything from climate change to homophobia to racism. Conferences on the crisis of liberalism are as ubiquitous on college campuses as Au Bon Pain. And it is certainly true that, especially since 2008, liberal shibboleths of individual autonomy and human rights have come in for serious criticism from both the right and the left. And yet, as Daniel Luban has recently argued in these pages (“Among the Post-Liberals,” Winter 2020), it is also true that this crisis talk is overblown, and that the critique of liberalism is often more rhetorical than real. Many critics begin with an utter parody of the liberal tradition, according to which liberals view human beings as isolated monads. This allows any invocation of community to fashion itself as post-liberal, ignoring the fact that every liberal worth their salt, from Locke onward, has been committed to various forms of sociability. Much of the criticism, then, is better understood as an internal debate within the broad confines of liberalism about which forms of community ought to be valued, and why.

The ubiquity of funeral rites for liberalism can distract attention from those few who are genuinely committed to its murder. There are intellectuals and politicians out there who are seeking to uproot liberalism, root and branch. This kind of true opposition to liberalism has a long history in our country, most prominently among apostles of legal segregation. And in our own strange times, it is mounting a comeback. This is apparent at multiple levels, from the rowdy “Proud Boys,” who stand up for the rights of white men supposedly under assault, to the genteel climes of the academy, where a number of writers and thinkers are adopting flamboyantly illiberal postures, imagining quasi-medieval visions of social harmony as an antidote to the putative aimlessness of modern consumerism. It is hard to know how seriously to take any of this. It can often seem like a bit of playacting from people who know very well that the basic structures of American society—whose liberalism allows them to speak in the first place—will remain intact. And yet, as our current president knows, the line between reality and reality TV has become blurred. Thinkers and politicians who seem to be half-joking can become, when the tide changes, deadly serious.

One of the most serious and dangerous critics of liberalism today is a Harvard Law professor and recent Catholic convert named Adrian Vermeule. Less ambitious conservatives hope to reinvigorate Christian virtue with the tools of persuasion and localism. This has been the position of Patrick Deneen and Rod Dreher, for instance. Vermeule recognizes, rightly, that this is unlikely to work. He styles himself as a defender of “integralism”—the idea, essentially, that the state be subordinated to the Catholic Church, and that the state use its awesome power to create and defend the particular moral community that the Church imagines. The exact contours of this state are hard to discern, especially as many of his recommendations are made with a Trumpian smirk (albeit masquerading as a Swiftian one). It would certainly ban abortion and pornography, and it would likely mandate Catholic education in schools. It is hard to see what place would be made for homosexuals or religious minorities in such a state. What he has said does not bode well for religious tolerance: he has argued that atheists should not be allowed to hold office, and that Catholic immigrants be given priority over Muslims, Protestants, and Jews.

Whatever this state might look like, it is to be achieved not through a coup but by the installation of a cadre of anti-liberal conservatives into positions of power in the administration. From those perches, they would leverage state power to create a new social order. This is worrisome because, given his position at Harvard Law, Vermeule is in a position to train and influence people who will go on to occupy these roles. And it is worrisome because it stems from a clear-eyed analysis of power, as well as of which strategic positions conservatives ought to target. While leftists storm the English department, Vermeule reasons, reactionaries might storm the Food and Drug Administration.

Vermeule is worthy of our attention, and not simply our opposition, because his trajectory is so surprising, and so indicative of what the true crisis of liberalism actually is. If we imagine that these kinds of dark illiberalism come from the fringes, it’s easy to imagine that they’ll remain there. That, however, is not Vermeule’s story. His reactionary turn is quite recent, dating only from the past few years. For most of his career, he has been a pioneering legal intellectual, writing in or near the mainstream. He has published, and continues to publish, with some of the most feted legal minds of the day, notably Cass Sunstein and Eric Posner. His output appears incoherent: sober legal articles with establishment academics, alongside dark theological musings and ghastly tweets. The contradiction, though, is only apparent. Vermeule’s path represents a painfully coherent solution to the moral and theoretical impasse reached by a certain kind of technocratic liberalism. This is not a story, then, about the crisis of liberalism, but about the crisis of a particular version of it. Most of us are well aware of the political and economic aspects of this crisis, but this intellectual angle is less familiar. A generation of thinkers was raised in the orbit of centrist technocracy, and as its luster continues to fade, strange new gods will arise in their midst.

Born in 1968 to a family of scholars, Vermeule quickly became a star on the conservative wing of legal academia. He began his career with funding from the John M. Olin Foundation, which explicitly aimed at supporting conservative legal thinkers. His earliest articles thank John Yoo, then clerking for Clarence Thomas, in their acknowledgments. (Yoo later became notorious for defending the Bush administration’s policies on torture.) Vermeule himself clerked for Antonin Scalia.

Until quite recently, Vermeule was a part of the intellectual mainstream. During his most formative years, the “law and economics” school of legal thinking (which was attractive to Elizabeth Warren at the same time) transformed the way many academics thought about the law. Its basic insight was that legal decisions should be adjudicated using economic criteria, seeking the most rational and utility-optimizing solutions rather than the ones that might cohere best with musty precedent. As one might expect, this school found its home base at the University of Chicago, where Vermeule was hired in 1998. While there, he began to work closely with two colleagues, Posner and Sunstein, the latter of whom became regulatory czar in the Obama administration. Neither of them are conservatives in the traditional sense: both presume that abstract questions of ideology have little place in legal analysis, and both can best be described as technocrats—or, perhaps, apologists for technocracy. And yet, somehow, they found themselves working cheerfully with a future reactionary. This says something about Vermeule, to be sure. But it says something about them, too.

If power is to be delivered to the technocrats, it has to be taken away from someone else. For Vermeule, that someone is the judiciary. His first book, Judging Under Uncertainty (2006), is about the need for judges to step back and let expert authorities make complex decisions. And his most recent solo endeavor, Law’s Abnegation (2016), is about how they have empirically, and admirably, done so. The reason is simple. Judges, in his view, are ill-equipped to adjudicate on the administrative and regulatory questions that, in modern states, so often come across their desks. Judges have no business, Vermeule thinks, meddling with technical or regulatory matters, and thus they seldom do. So whatever fantasy we might spin about living in a republic of laws, in reality we are living in a republic of administrators.

The abnegation of the law opens the door for the executive branch to assert its proper role. This has been the grand theme of Vermeule’s collaborations with Sunstein and Posner. His writings with Sunstein have focused on the need for government agencies to have wide leeway to intervene in and regulate the social order, without serious oversight from the legislature or the Constitution. This is readily apparent in their first published work together, a provocative 2009 paper titled “Conspiracy Theories.” As always, they begin with a genuine problem: in this case, the spread of harmful untruths like birtherism or trutherism. Their basic idea is that government agencies should be allowed to pursue a project of “cognitive infiltration,” anonymously mucking about in conspiracy circles in order to sow doubt and confusion. As is often the case, they arrive at a solution that is superficially elegant but horrifying to contemplate. The prospect of an FBI agent posting memes on 4chan sounds benign enough. But who decides what counts as a conspiracy theory, and how do we define the set of debates that the government can intentionally derail? Trump, of course, believed (or pretended to) that the impeachment proceedings against him were a witch hunt. He could, if he cared to, have called on two prestigious legal scholars, now both at Harvard Law School, to legitimate a secret campaign of misinformation.

Vermeule’s work on administrative law with Sunstein led, therefore, to a classic question: Who, in the end, has the capacity to employ the awesome powers of the modern state? This is where Vermeule’s work with Posner comes into play. Both of them look to the German jurist (and prominent Nazi) Carl Schmitt. Together, they set out to translate his sometimes gnomic insights into the language of contemporary legal scholarship. Schmitt showed, they believe, that the executive branch is the proper locus of sovereignty and the one that is most legitimately linked with the people. It is also the only one with the capacity and speed to act in times of emergency. In response to the furious national debates over the scope of the executive prompted by the Patriot Act, Vermeule and Posner published two books, Terror in the Balance (2007) and Executive Unbound (2009), that brought Schmitt’s insights into the context of contemporary America and its global War on Terror. The books mount a robust defense of executive leeway, including the right to use “enhanced interrogation”—or, in layman’s terms, torture.

As unsavory as some of this might be, it is still a far cry from defender of the Bush administration to reactionary zealot (and if you are thinking that the former was basically theocratic, then you have not really contemplated the nightmare that might lie in our future). Why did Vermeule move from one to the other? Part of the reason, no doubt, concerns his conversion to Catholicism in 2016. It would be uncharitable to view this conversion as instrumental or as a step in his publicly discernible intellectual development. Conversion is always about more than this, and Vermeule has hinted at some sort of mystical experience.

At the same time, it is hard not to place him into a recognizable genealogy of liberal Protestants, ensconced in the mainstream intellectual culture of their day, who found their way to Rome. Jacques Maritain belongs in this camp, as do G.K. Chesterton and Alasdair MacIntyre. Like Vermeule, they brought the zeal of the convert with them, and were often more radical than cradle Catholics. If one traces out their stories, as it has been my professional hazard to do, one can find quite similar trajectories: deep engagement in mainstream, non-Catholic schools, which brought them to unresolvable contradictions. The Church offered them answers to questions they already had.

Whatever effect it has on his mortal soul, as an intellectual matter Vermeule’s conversion helped him to discern and unravel a great tension at the core of the law and economics approach. His scholarship with Sunstein and Posner labored mightily to persuade us that shreds of paper, be they constitutions or laws, were irrational guides to social betterment. And yet what was to take their place?

In lieu of the grand ideologies of the past, Vermeule’s co-authors looked to the individual and her preferences, as stewarded by a free market and enlightened administrative agencies. And yet this isn’t really an answer at all. Liberal individualism had always relied upon, and was even a relic of, constitutional legalism. The whole idea had been that law could structure social relations, allowing different cultures and religions to live in relative harmony. By depriving the law of this sort of social function, the law and economics circle opened up a vast new set of questions about how the social order might cohere. How can the state make decisions about ethical matters, which it must do, and why ought those decisions be viewed as legitimate? What, in the end, do citizens share with one another? These are first-order questions—questions that are answered by many in the liberal tradition, but which technocratic thinkers such as Sunstein and Posner prefer not to approach.

Vermeule, however, came to see liberalism as purely destructive: as a set of tools and procedures whose primary purpose was to reshape social reality in its own image, steamrolling the virtues of the people in the name of individualism and science. This is a perverse account of liberalism, although one plausibly derived from the variant in which Vermeule was enmeshed. And it leads to perverse understandings of social reality, too.

To take one example, writers like Vermeule grant immense significance to events like the drag queen story hour (a program in which people dressed in drag read stories to children in libraries and bookstores). For the liberal, these gatherings are opportunities to introduce children to various modes of gender expression and to demonstrate openness to queerness and difference—even in public spaces, and even during the daytime. This is all perfectly in keeping with liberal commitments to experimentation, inclusivity, and negotiation. Christian books are not banned; no commissar is demanding that every librarian or child dress in drag. For Vermeule, nonetheless, they are festivals of intolerance, dedicated to disrupting the mores of the heartland and furthering the universal project of liberal hegemony and unreason. The issue with an interpretation like this isn’t that it’s intolerant, although it clearly is, but that it’s simply mistaken, both about the events and the liberalism that generates them.

It is chilling to consider what kinds of activities Vermeule would like to see for children at the local library. He is well aware that drag queen story hour is in line with many people’s sensibilities; he is aware, too, that no amount of somber roundtables about the collapse of natural law will change that fact. As such, he has begun to entertain dark visions about how the administrative state might coerce the unruly people toward virtue. He positively cites Joseph de Maistre, a Catholic critic of the French Revolution and fellow defender of torture. Vermeule dreams of a world in which we will “sear the liberal faith with hot irons” in order “to defeat and capture the hearts and minds of liberal agents.” A less honest thinker would be sure to remind readers that this is all meant metaphorically. Vermeule does no such thing and goes out of his way to assert that “coercion” ought to be on the table. There is only one way to read this: he is arguing that actual violence could legitimately be used to convert hearts and minds.

However alarming the conclusions, the premises here are not far removed from those in his more mainstream writings. The essay I’ve been quoting from is called “Integration from Within,” published in 2018 in the conservative journal American Affairs, and the suggested strategy involves seizing the powerful levers of the administrative state. His references are to ancient icons: the prophet Daniel, for instance, and St. Paul. But he clearly has a modern situation in mind—or, at least, the modern situation as he has long interpreted it along with Sunstein and Posner. Vermeule’s theory, in Law’s Abnegation and elsewhere, has been that the modern state is not actually governed by law or courts but by administrative agencies like the Department of Homeland Security and the Department of Education. And his proposal in his more radical writings is that those agencies ought to be staffed by integralists who would bend the powers of the state in his desired direction.

For those with eyes to see, Vermeule provided a little Easter egg in the middle of his fever dream. “We have learned from behavioral economics,” he reminds us, that administrative agents can “nudge whole populations in desirable directions.” The theory that the state might “nudge” citizens toward more optimal outcomes, as defined by technocrats, is the famous theory developed by Sunstein himself, who wrote a bestselling book of that title. Sunstein imagined that it would help us lose weight and stop smoking. And yet, Vermeule is saying, if we are going to grant the administrative state the right to mold citizen behavior, why stop there? We might be nudged, he thinks, with hot irons; we might be nudged right back to the Inquisition.

What significance ought we draw from such a career? Clearly Vermeule’s path is an idiosyncratic one, and it is unlikely that many will follow his specific path between Chicago and Rome. He is not exactly a “populist” and is more committed to the reign of the Church than he is to that of the Republican Party. And yet, given his apologetics for the Eastern European regimes that are currently committed to gutting judiciaries and human rights protections, there is no doubt which side he will be on if or when the true moment of crisis arrives in our imperiled republic. And even if that crisis does not come, he is still in a position of considerable influence. Harvard Law School produces Supreme Court justices, prominent pundits, and, most crucially, the sorts of bureaucrats and administrators that are central to his strategy (one shared, albeit with less baroque argumentation, by many conservative operatives).

More importantly, though, Vermeule’s story shows us just how easily technocracy, by evacuating the moral center of our politics, can tip toward a moralizing authoritarianism that promises to restore one—how easily, in other words, Bloomberg might tip into Bonaparte. We will have to be ready, and we will have to offer something better.

James Chappel is the Hunt Family Assistant Professor of History at Duke University and the author of Catholic Modern: The Challenge of Totalitarianism and the Remaking of the Church (Harvard University Press, 2018).