Sometimes, it takes a troll to make a point. It can certainly get people thinking, anyway. Harvard Law professor Adrian Vermeule’s most recent essays are a case in point.

For better or worse, “originalism,” or the idea that the United States Constitution should be interpreted in light of its meaning when it was ratified, is the alpha and omega of conservative constitutional thought. Liberals rightly lampoon originalism as results-oriented nonsense. But unfortunately, their alternatives are every bit as results-oriented, but without the theoretical window dressing. As the saying goes, “It takes a theory to beat a theory.” And even a bullshit theory is better than no theory at all. The rip-roaring practical success of originalism brooks no argument. These days, even liberals make originalist arguments. They don’t really have a choice.

Enter Vermeule. In his recent essay for The Atlantic, “Beyond Originalism,” Vermeule argues that conservatives should abandon originalism for “common-good constitutionalism,” or an interpretation of the Constitution that requires everyone to respect certain normative values. Essentially, he implied that conservatives should interpret the Constitution to impose Catholic integralism, damn the torpedoes.

Unsurprisingly, everyone was horrified. And for good reason! Liberal scholars complained that Vermeule’s expectation of “respect for the authority of rule and of rulers” was a recipe for fascism. Some even tried to make him a pariah, arguing that he should be ostracized and his ideas should be ignored.

As usual, the commentariat tagged along, dragging Vermeule as a fascist authoritarian. After all, his preferences suck, and lots of prestigious legal scholars insist he’s wrong. Good enough.

But conservatives were just as upset. Sure, Vermeule was asking for what they wanted. But for the wrong reasons! Originalism says the Constitution requires conservative values. Vermeule says the Constitution is a blank slate, and conservatives should make it their own. Sometimes, the curtain is a welcome distraction from the truth.

Many might call Vermeule an iconoclast who thrives on shocking the conscience of the academic consensus with his attacks on its most cherished social norms. Or rather, in the vernacular, he’s a troll. As Rick Hills has observed, Vermeule uses “anti-liberal chic” to mock the pieties of the liberal elite. Free speech, individual liberty, and personal choice are sacrosanct to the liberal concept of democracy. Vermeule simply observes that most people don’t give a damn about any of those things. Sure, egghead law professors and sanctimonious politicians claim that democracy means liberalism. But in reality, democracy just means majority rule, and the majority isn’t all that liberal.

Vermeule’s critics rightly observe that his work is literally an apologia for totalitarian dictatorship. Surely, he would cheerfully agree. His point is that they cannot offer a compelling alternative.

Neither liberalism nor conservatism offers a constitutional theory that can provide a reliable bulwark against authoritarian misrule. Despite their epicycles of representation reinforcement and historical exegesis, at the end of the day, they boil down to mob rule. Constitutionalism is just the ideological hand-waving that convinces the mob it can’t always get what it wants.

Both Vermeule and his critics are wrong. We are no fans of authoritarian regimes — our families fled persecution, destitution, and bloodshed — but ideology can’t solve ideological problems. No constitutional theory can realize constitutional values: not originalism, living constitutionalism, progressivism, or conservatism. And more to the point, no constitution can prevent totalitarianism, if people want it.

Phony legalism is no defense. When totalitarianism comes, it takes a familiar form, and expresses familiar values, in familiar terms. After all, Francoist Spain, Republican France, and Mussolini’s Italy all clothed themselves in the false flag of legalism. As Erwin Chemerinsky observed in We the People: A Progressive Reading of the Constitution for the Twenty-First Century, the Soviet Constitution even promised rights and privileges the NKVD just ignored.

How can we prevent totalitarianism? Who knows. But it might help if we became less ideological and more practical. It isn’t easy. As Jordan L. Perkins has observed, “human conflicts are irreducibly bound up with fundamental moral values.” Still, we can choose which values to emphasize.

Maybe one of those values is compromise. We delegate constitutional questions to the Supreme Court because we want to believe that constitutional values are universal and absolute. But maybe we should just admit that the truth is closer to “different strokes for different folks.”

As legal realists have long observed for the benefit of anyone listening, constitutional law is just politics by other means. Maybe we should just leave political questions to political institutions. To paraphrase Eric Segall, the Supreme Court should butt out already and leave politics to legislators.

Ultimately, the only tonic for totalitarianism is a healthy, pluralistic political sphere. Striking a balance among political, moral, and legal ideologies — not clinging to a blinkered vision of an acutely legalized Constitution — is the only way we can avoid catastrophe. Only when political leaders and the governed alike can accept pluralism will our nation and legal system have fortified themselves against the risk of misrule.

Beyond the banal “anti-liberal chic” of Adrian Vermeule’s iconoclasm — which includes some rather distasteful speeches at the consulate of a nation known for jailing journalists and dissidents — and the predictable unconvincing rebuttals praising the anti-authoritarian nature of their preferred vision of the Constitution (like Randy Barnett’s piece in The Atlantic) lies the more fundamental problem. Our Constitution is unmoored from political, legal, and ethical public policy rationales. As we have written before, the organizational principle of our politics is flawed. Only by fixing the flaws that exist beyond our acutely legalized and historically unmoored Constitution can we come back to a more functional political and public life.

Lucille E. Nguyen is a college student, a research assistant at the University of Kentucky College of Law, and a host of Ipse Dixit, a podcast on legal scholarship. Brian L. Frye is a conceptual law professor (IP, PR, nonprofits, art law, legal history) at the University of Kentucky College of Law. Brian is also a “Securities artist” and another host of Ipse Dixit.

Suggested citation: Lucille E. Nguyen & Brian L. Frye, Trolling For Honest Liberalism?, JURIST – Academic Commentary, April 11, 2020, https://www.jurist.org/commentary/2019/11/nguyen-frye-trolling-for-honest-liberlism/

This article was prepared for publication by Gabrielle Wast, Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org