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{shortcode-24643cedbe14221289878261864001a8ceef067a}n March 31, 2020, when the United States was on Covid-19 lockdown, The Atlantic published “Beyond Originalism,” a cerebral essay by the Harvard Law professor C. Adrian C. Vermeule ’90. The essay urges legal conservatives to abandon originalism, the dominant school of constitutional interpretation for the conservative legal movement, which posits that the Constitution should be understood according to the original intent of the Framers. Instead, Vermeule calls for “common good constitutionalism” — a new reading of the Constitution which promotes “legal strictures, possibly experienced at first as coercive” that ultimately “encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.”
Vermeule’s essay shocked conservative and liberal legal scholars alike. Prominent trial lawyer Robert Barnes described Vermeule’s framework on X — then known as Twitter — as “Orwellian.” Russ Roberts, a research fellow at the Hoover Institution, a Stanford-based conservative think tank, characterized it as “frightening” and indicative of the “road to fascism.”
Three days later, The Atlantic published two rebuttals to Vermeule’s essay by legal scholars G. Garrett Epps ’72 and Randy E. Barnett. Epps, a professor emeritus at the University of Baltimore, called common good constitutionalism “harmful and antihuman.” Barnett, a professor at Georgetown University, wrote that there appeared to be “something authoritarian in the water of Harvard Law School.”
Vermeule, usually an avid participant in online legal discourse, wasn’t there to see the firestorm. He’d given up social media a month ago for Lent.
Common good constitutionalism came at a turning point for the conservative legal movement, which had been steadily gaining momentum since it coalesced around originalism as its flagship legal theory in the 1980s. In his first term, President Donald Trump appointed 234 federal judges — and months after Vermeule published his essay, Trump would cement a conservative six-person supermajority on the Supreme Court with the confirmation of Amy Coney Barrett. Two years later, that majority overturned Roe v. Wade.
Against this backdrop, Vermeule argued, originalism is no longer necessary as a rallying point for conservatives. “Originalism has done useful work,” he wrote in the essay, “and can now give way to a new confidence in authoritative rule for the common good.”
Vermeule declined an interview, and did not respond to multiple requests for comment.
Over the past five years, common good constitutionalism has taken tenuous root in elite legal academia. It’s now beginning to find its way into courtrooms. But scholars remain divided on its potential to reshape the legal landscape — and whose “common good” it seeks to advance.
{shortcode-be29865d8a9c7908fa05930b7f2d42574eaa573c}n Oct. 2022, the Dissent Collective, an unrecognized Harvard Law student group, posted a black-and-white drawing of Vermeule’s side profile on their public Instagram. On top of the image, a bright-red stamp reads “FASCIST.”
The image was part of a series of posts criticizing the upcoming Common Good Constitutionalism Symposium, where legal scholars would gather to discuss the nascent framework. The collective took aim at Vermeule for his theory and at Harvard Law School for normalizing it.“This homophobia goblin may seem like mere fodder for your night terrors, but in reality he’s so much worse,” they wrote in the caption. The group argued that “HLS provides legitimacy to Vermeule’s ideologies and allows other institutions to do the same.”
It was clear that the once-unassuming Adrian Vermeule had become the face of a movement. Common good constitutionalism, from its conception, had become inextricably linked to its creator — with all his peculiar habits and provocative ideas.
Born and raised in Cambridge, Massachusetts, Vermuele is the product of the revered intellectual and cultural elite. His father, Cornelius C. Vermeule III ’47, the four-decade curator of classical art at the Museum of Fine Arts, Boston, was famed for his ambitious revival of the museum’s Greek and Roman collections. A quirky, warm-hearted intellectual who captured the hearts of the media and scholars alike, the World War II veteran was also known for his favored uniform: a Mickey Mouse tie and Dalmatian-inspired sneakers. In 1996, he chose to retire so the museum could use his salary to pay employees facing dismissal during a budget squeeze.
Adrian’s mother, Emily D.T. Vermeule, a professor of classical philology and archaeology at Harvard, was equally accomplished. Granted honorary degrees by a litany of universities, she was also a poet published in The New Yorker who radio-narrated Harvard’s commencements while perched in a tree.
As he grew up, he followed in the footsteps of his parents and his older sister, E.D. Blake “Blakey” Vermeule, now an English professor at Stanford. He attended Harvard College, graduating in 1990, and went on to earn his J.D. from Harvard Law School three years later.
After law school, Vermeule clerked for Judge David Sentelle, then for Justice Antonin Scalia of the Supreme Court. In 1998, he joined the faculty of the University of Chicago Law School, where he worked for 8 years.
“He’s one of the clearest and most thoughtful professors I’ve encountered,” remarked former student Crista Leahy in a 2002 interview with the University of Chicago Chronicle. “He did it all with the proper mix of seriousness, wit, and comedy.”
While there, he collaborated with Eric A. Posner, a fellow young legal scholar, who is now an endowed professor at the school. David Dyzenhaus, a Canadian jurist and University of Toronto law professor, recalls the two of them becoming interested in his research on Carl Schmitt, a German political theorist infamous for his membership in and intellectual defense of the Nazi Party.
They studied Schmitt’s writings about the failures of liberalism and the role of the administrative state. But over time, Vermeule’s fascination grew. “I noticed that Adrian had moved away from just being interested in Schmitt to actually embracing all dimensions of Schmitt’s theory: both the political dimension and the legal dimension,” Dyzenhaus says. Schmitt had mounted a defense of Adolf Hitler as supreme leader of the Nazi party, arguing that a dictator embodies the people’s will, and that his word was the “highest form of administrative justice.”
Dyzenhaus has since written multiple scathing critiques of common good constitutionalism — slamming it in one interview as “the constitutional theory of authoritarianism.”
In 2006, Vermeule returned to Harvard Law School as a professor, working alongside some of the jurists he had learned from just a decade before.
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While at Harvard Law School, he made an account on Twitter, where he has since been a prolific poster. “Red Sox > White Sox. The only point on which I dissent from Magisterial Teaching,” Vermeuele posted on X in June, a reference to Chicago native Pope Leo XIV’s famous love for his hometown baseball team.
Most of his posts aren’t so temperate. “Antifa really need to work on their shield wall,” he wrote in response to a video of Portland Police brutalizing protestors in August 2020. That November, he made several posts undermining the legitimacy of the presidential election. “Lol the election isn’t over until Team Joe fixes up your ballot for you,” he wrote. Affirming a post noting that eight states technically bar atheists from holding public office, Vermeule replied, “Sensible, atheists can’t be trusted to keep an oath.”
In January 2021, 11 Harvard Law School student organizations banded together to protest Vermeule’s online presence. In a statement, they denounced his allegations of widespread voter fraud following the 2020 election and “highly offensive, discriminatory, and violent statements in online posts.” The groups called upon the Harvard Law School administration to condemn Vermeule’s discourse and audit his courses, and to establish an additional section of the Administrative Law class, which Vermeule teaches, ensuring that first-year law students will not need to take a course with him.
“Prof. Vermeule is, of course, free to have his own political opinions,” they wrote in the statement — but added that “Prof. Vermeule’s statements undermine HLS’s ability to attract a diverse student body, if prospective students learn that HLS is the kind of place where prominent professors can spout highly offensive rhetoric without consequence.”
{shortcode-e64d65eabc2c8945c17364f3d09655b667e30e03}ast month, during a memorial broadcast following the assassination of the conservative podcaster Charlie Kirk, Vice President JD Vance recited the Nicene Creed, the defining statement of most modern branches of Christianity, to viewers of The Charlie Kirk Show.
“The most important truth Charlie told is this: that long ago a man begotten not made came down from heaven and by the Holy Spirit was incarnate of the Virgin Mary and became man,” Vance intoned, seated in his office at the White House, before an American flag. His words were a close retelling of the creed from 325 AD, which affirms belief in a singular god and asserts Jesus as his son.
Vermeule — a longtime admirer of the vice president — responded approvingly.
“Around the time of Obergefell, people feared even to mention Christian arguments for law and public policy, let alone quote the Nicene Creed from an official position,” he wrote on X, referring to the 2015 Supreme Court case that legalized same-sex marriage in the United States. “Who knows what the future may hold?”
Vermeule’s faith is central to his political stance, including his construction of common good constitutionalism.
Like Vance, he is an adult convert to Catholicism. He was received into the church in August 2016, in South Bend, Indiana. Princeton law professor Robert P. George — a fellow Catholic — posted a photo of Vermeule flanked by a pair of priests, a Notre Dame theologian, and George himself on Facebook, announcing Vermeule’s conversion.
In November of that year, Vermeule explained his decision to convert to First Things, a philosophy journal that advocates religion-informed public policy. “I put little stock or hope or faith in law,” he said in an interview with the journal. “In the long run it will be no better than the polity and culture in which it is embedded. If that culture sours and curdles, so will the law; indeed that process is well underway and its tempo is accelerating. Our hope lies elsewhere.”
In the same interview, he said that Catholicism was “in some logical or theological sense prior to everything else.”
Since 2016, Vermeule has emerged as a proponent of integralism, the idea that society and government should be based on Catholic principles. He has also become a staunch critic of liberalism, which he views as inherently reactionary and unstable. “Yesterday the frontier was divorce, contraception, and abortion; then it became same-sex marriage; today it is transgenderism; tomorrow it may be polygamy, consensual adult incest, or who knows what,” he wrote in a 2017 article.
The Church’s job in the modern day, he said, is to survive this liberal onslaught — and ultimately emerge as not only an ideological opponent, but as a political one.
For Vermeule, “the ultimate long-run goal is the same as it ever was: to bear witness to the Lord and to expand his one, holy, Catholic and apostolic Church to the ends of the earth.”
“The Church can be all things to all men, politically speaking, precisely because political forms are merely possible means for carrying the core mission into execution,” he added.
In his writing on common good constitutionalism, Vermeule offers similar critiques of liberalism.
He regularly slams decisions like Obergefell v. Hodges — which legalized same-sex marriage — and Planned Parenthood v. Casey — which ruled that each individual could “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Under common good constitutionalism, Vermeule says, these decisions would be considered “abominable, beyond the realm of the acceptable forever after” because they do not provide a single edict for subjects to follow.
In his 2020 essay, Vermeule writes that common good constitutionalism is inspired by the 16th Century idea of ragion di stato, or “the reason of state” — which he says describes “a set of principles for the just exercise of authority.” These moral principles, which Vermeule describes as a “trinity,” include peace, justice, and abundance. Against the backdrop of the Covid-19 pandemic, Vermeule adds health and safety to that list.
Ragion di stato is not just a moral code, however — it is an argument for the integration of church and state. Written by Giovanni Botero, a devout Catholic, in 1589, it advises that “Therefore the prince ought to humble himself with his whole heart before the Divine Majesty and acknowledge that the kingdom and the obedience of his subjects come from him.” It is expressly critical of Protestantism and Islam as destabilizing forces for both religion and government.
Vermeule’s 2022 follow-up book, titled “Common Good Constitutionalism,” expands on the titular framework. In it, he more directly cites its connection to Catholic morality. When defining the common good (“the precepts of legal justice in the classical law”), he cites Pope John Paul II’s Compendium of the Social Doctrine of the Catholic Church.
For some scholars, Vermeule’s morals and his writing can be separated.
Linda C. McClain, a Boston University professor who specializes in family law and feminist legal theory, posits that Vermeule’s framework for a moral reading of the Constitution can be adapted to other moral codes.
“I agree that you need a moral reading of the Constitution,” she says. “It’s just that my view of what the moral reading is, is not Vermeule’s reading.”
In a piece published in the Harvard Journal of Law & Public Policy as part of the 2022 symposium, McClain and her coauthor, James E. Fleming, condemn the “seeming absence of the role of deliberation by the people about the common good.”
Vermeule, they argue, “proposes an unsustainable moral reading — rooted in Catholic integralism — one to which a morally pluralistic people would not submit.” According to McClain and Fleming, what we need instead is a vision of the “common good” that encapsulates “ecumenical, all-purpose goods enabling persons to pursue a plurality of conceptions of the good life.”
For others, though, the entanglement of Vermeule’s religious beliefs and his political ideas is unavoidable.
“Vermeule’s frequent references to Catholic natural law theory in the footnotes are behind his argument, which is that justification is not in terms of fit with the law, but with a body of allegedly timeless and universal principles that animate right-wing Catholics and Evangelicals in the US,” wrote Dyzenhaus, the University of Toronto professor, in a blog post.
Vermeule’s work, says Veronica Rodriguez-Blanco, a legal philosophy professor at the University of Surrey, is not addressed to theoreticians or philosophers. “He aims to address the judge and make him aware that this activity is embedded in values.”
“We’re going to disagree,” she adds. “And we will discuss these values, but we have to be aware that these values are embedded in our practice and what we are doing. We cannot be detached.”
Similarly, Eric Segall, a law professor at Georgia State University, says that he believes Vermeule’s faith is the crux of his constitutional theory.
“I think Professor Vermeule would have written this no matter the state of the country. I think he found religion,” he says. “I think that is a major source — not the only source, but the major source of his inspiration.”
{shortcode-be29865d8a9c7908fa05930b7f2d42574eaa573c}n the 1970s, originalism was a brand-new legal theory that barely saw the inside of a Harvard classroom. Today, though, it operates as the driving force of the conservative legal movement — five of the nine Supreme Court Justices are self-described originalists, and the ideology has made its way into the forefront of the legal academy.
Though Vermeule describes common good constitutionalism as originalism’s successor, the relationship between the two is hotly contested among legal scholars — and it remains to be seen if, and how, common good constitutionalism will follow in its predecessor’s footsteps.
Originalism developed alongside the Federalist Society, an influential organization for legal conservatives and libertarians. The Harvard Journal of Law and Public Policy, the organization’s flagship publication, published articles on originalism years before the Harvard Law Review would do the same.
The Federalist Society would go on to hold dozens of panels and conferences centered around originalism — and give rise to each of the Supreme Court justices who hold originalism as a central tenet of their constitutional theory.
But, at the society’s inaugural conference in 1982, this future seemed far out of reach.
At the meeting, Antonin Scalia — the noted originalist who, four years later, would be appointed to the Supreme Court — told conservative law students that “conservatives have simply been outgunned at the federal level for half a century.”
Morton C. Blackwell, another attendee who had campaigned for conservative presidential candidates like Ronald Reagan and Barry Goldwater, encouraged students to “study how to win.” He laid out a plan for his young audience: first, came success in law school. Then, participation in politics, government, and academia. And finally, appointment to the judiciary.
Blackwell’s outline was a prophetic one.
The Reagan administration would act as an incubator for the conservative resurgence in the American judiciary — and for the rise of originalism as a method of constitutional interpretation. Reagan criticized judges who inserted their personal beliefs and values into their rulings — and aimed to restore a sense of fidelity to the judiciary with his appointments, including that of Scalia to the Supreme Court.
Vermeule, despite being noted for years as a leader in conservative legal scholarship, and serving as treasurer for the Federalist Society during his second year at Harvard Law School, is an avid critic of originalism. He argues in his 2022 book that it necessitates a moral decision when the language of the Constitution is too vague to provide a definitive answer, and that often, it becomes so generalized that it is “pragmatically indistinguishable from the progressive constitutionalism that originalism was created and designed to oppose.”
Common good constitutionalism, for Vermeule, marks a return to “law’s real nature” — where, rather than the back-and-forth between progressivism and originalism, “the conception of justice looked to the common good of the community.”
For Lee J. Strang, a law professor at the University of Toledo, the line between common good constitutionalism and originalism is a blurry one. Strang, an originalist, agrees with Vermeule that morality should be built into the law, and that the law is a mechanism for securing the common good — in fact, he claims that these understandings are baked into originalism. In his argument, Strang references a 2001 paper by originalist Keith Whittington, which claims that the goal of originalism is not to limit judges by the Constitution, but rather to “open up space for originalists to reconsider the meaning of rights-oriented aspects of the Constitution.”
“I have a hard time seeing how originalism doesn’t align with the premises of his own argument,” Strang says.
Moreover, he adds that not every regulation — for instance, everyday things like traffic laws — requires a moral reading, which common good constitutionalism would mandate.
“A lot of law is just law,” he says. “And you don’t need to talk to natural law to figure out what the law is.”
Segall, the Georgia State College professor, argues, however, that common good constitutionalism is best read as a critique of originalism.
“Common good constitutionalism as a theory of government, as a theory of law, scares me to death,” he says. But, he adds, Vermeule’s critiques of originalism as something that necessitates the imposition of a moral code “are as good as they get. They’re penetrating.”
Perhaps, then, the disagreement over common good constitutionalism is also a disagreement over originalism. One review of Vermeule’s book, written by Randy Barnett, the Georgetown professor who rebutted common good constitutionalism in The Atlantic, claims that Vermeule’s approach leads him to “seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it.”
McClain, the Boston University professor specializing in feminist legal theory, makes a similar argument for Vermeule’s condemnation of progressivism.
“In our view, he caricatures and ridicules what he calls left-liberal or progressive constitutionalism,” she says. “And so, just like originalists felt burned by Vermeule’s critique, I think liberals also feel this is a very caricatured picture of what liberal constitutionalism is.”
By and large, though, professors are skeptical about whether or not common good constitutionalism can make the leap from theory to practice.
“Natural law, the common good, has always featured in constitutional interpretation to some degree, in some respect,” says Ilan Wurman, a law professor at the University of Minnesota. “So if common good constitutionalism stands for the proposition that judges should override clear legal text and instead impose some normative vision, I think the chances of that supplanting originalism as the way we do constitutional law is almost zero.”
“The Roberts Court would have done all of this if Adrian Vermeule never found religion and was still the guy he was 15 years ago,” says Segall. “That’s because there’s no relationship between what the Supreme Court is doing and virtually anybody's scholarship, because they will do what they want to do regardless.”
“Legal theories are just that. Legal theories. And very few of them make a difference on the ground,” he adds. “Theory matters more to tenure committees than any judge.”
For Segall, the true power of common good constitutionalism lies in its ability to influence students. “I’m saying it has very little effect on federal judges,” he says. “But that doesn’t mean it doesn’t affect thousands of law students and other academics — scientists, philosophers — who read this stuff.” It’s through these students — who will go on to positions in practice and academia alike — that common good constitutionalism might become entrenched in the judicial system.
Strang, who has spent nearly 25 years studying originalism, says that common good constitutionalism still has a ways to go before it becomes truly mainstream — but that ultimately, it was in “a similar position to common good constitutionalism is today, which was, it was definitely a minority viewpoint.”
“But as you know, originalism has grown in sophistication and influence,” he added. “Even if there are relatively few common good constitutionalists, I don't think that's a knockdown argument, because that was the case for originalism 25 years ago.”
{shortcode-dd08abb0bb2b02bf4881baaa9fb305566107f8d4}his fall, students in Dyzenhaus’ course “Issues in Philosophy of Law” will read an essay by Vermeule and his fellow common good constitutionalist, Conor Casey. The course will be taught to undergraduate students this semester, and law students in the following, and seeks to understand how theorists at eminent universities like Oxford and Harvard contest the rule of law, often falling back on Catholic natural law as a justification.
“I want the students, both in the undergraduate philosophy students, and the J.D. students, to see how the more abstract ideas actually matter a great deal in practice, in our political world today,” says Dyzenhaus.
The course focuses on the United Kingdom — particularly the 2024 Rwanda Act, which requires that asylum seekers are first sent to Rwanda to have their claims processed before they can hope to enter the UK — but Dyzenhaus says that “if I were teaching in the US, I would be able to use much more vivid examples, and the obvious one is just the accretion to the president of unlimited executive power.”
Common good constitutionalism has made its way into classrooms internationally. Legal scholars’ common defense against pushback to the ideology is that it is simply a thought experiment, and a way to test the goodness of the laws as we know it today. Yet, the students learning the framework in their classes have since become the young working lawyers of today, and the theory has since come into legal decisions.
The May 2022 case of United States v. Tabor — perhaps the first major case in an appellate court to specifically cite common good constitutionalism — applied Vermeule’s framework to the law as justification to convict a man of sexual abuse of a child.
While standing duty in his squadron’s ready room late at night, a military officer texted a high school classmate of his. A sexually explicit text message exchange followed. His classmate, known as Ms. Charles, sent him a photo of her in bed with her daughter, and said she was going to masturbate once her daughter fell asleep.
The officer told her to “do it anyway.”
Ultimately, the court decided that it was unnecessary for the child to be explicitly aware of the sex act that the man encouraged her mother to take in order for the event to have been a crime, holding that indecent conduct “in the presence of a child” does not require the child to be aware of the conduct.
“The overall purpose of this statute is to promote the common good by criminalizing lewd acts,” the Court wrote. It also argues that a textualist approach to related cases has contributed to confusion about central terminology and “outsource[s] the role of the judge to a dictionary.”
In the case’s discussion, the court explicitly cites Vermeule as the “most visible proponent” of this framework. And so, it became enshrined as precedent into law.
“It’s dangerous because it does have the potential to and has, to some degree, influenced young law students who may, someday, be in positions of power,” said Segall. “I used to love his work on the administrative state, and I still kind of do. I wish he would use his powers to help the poor, the downtrodden, rather than the rich and powerful.”
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Next spring, Vermeule will return to Harvard Law School after a semester off from teaching and lead his usual courses on administrative law.
Meanwhile, his ideas are taking on a life of their own. In the coming year, the Supreme Court is poised to consider cases about the future of environmental accountability, voting rights, and LGBTQ health. With the country’s politics in flux, the latest ideological vogue of the most powerful jurors and politicians in the land still remains to be seen.
“Without these trends, he would just be a professor at Harvard that only other academics would have to notice,” says Dyzenhaus. “But with these trends, you become someone who actually has a role to play in politics, and that role can become quite important.”
F0r Darrell A.H. Miller, a professor at the University of Chicago Law School, common good constitutionalism poses a more distinct threat. “Common good constitutionalism, at this moment in time, is being utilized as an intellectual justification for the dismantling of American democracy and the imposition of authoritarian government,” he says.
Vermeule, though, seems unconcerned about the state of American democracy, telling the New York Times in April that “the impression of a ‘constitutional crisis’ is misleading.”
Rather, he contends, the real crises are lawsuits brought against the president in lower courts that, according to an op-ed he penned in July, limit his ability to govern well.
In that op-ed, Vermeule calls on Trump to ignore orders from lower courts and instead exercise the full powers of his position.
It is, in other words, a Trump-era manifestation of his flagship theory: that “just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them.”
—Magazine writer Sophie Gao can be reached at sophie.gao@thecrimson.com. Follow her on X @sophiegao22.
—Magazine writer Jocelyn E. Sheck can be reached at jocelyn.shek@thecrimson.com.
