“American public law suffers from a terrible amnesia. Putting aside the work of a few legal historians and other specialists, our law has all but lost the memory of its own origins and formative influences in the classical legal tradition—particularly the jus commune, the classical European synthesis of Roman law, canon law and local civil law.”¹
 
The rhetoric of recovered origins has a venerable history, and here it is employed to interesting effect in this peculiar reflection on the state of American jurisprudence. Common Good Constitutionalism argues that at some point in the twentieth century the American legal community lost contact with the spirit of its laws. The latter was a tradition of practical reason rooted in moral, social and political presuppositions that the now seemingly vacuous term, “the common good,” could once evoke. The premise of the work is that this term can now function as a placeholder for the recollection of a more profound sense of these enduring yet endangered presuppositions. The jurists of the past once intuitively grasped these presuppositions from the practical experience of what they assumed to be a quasi-natural order of human things and so didn’t feel the need to spell them out, but impending forgetfulness now calls for an urgent enterprise of retrieval. 

What was the history of this vision of legal order? Where did it come from and what happened to it? From Western antiquity to an earlier phase of modernity, the rightly ordered community divided public from private in accordance with what has often been described as an unwritten constitution—i.e., the jus commune. Lawyers working within this tradition were responsible for clarifying the general principles that flowed from this underlying ground of the law and for applying them to particular cases with due regard to the exceptions that must be made in the name of the common good—the survival and flourishing of their community. Given this complex relation of rule and exception, legal reasoning depended upon the authority of precedent under the assumption that the underlying presuppositions of the judgments of the past had not been obscured by historical changes of the kind that result in bouts of “terrible amnesia.” But over the course of the twentieth century, the line dividing public from private became subject to permanent, structural instability leading to just this kind of hermeneutic upheaval and forgetting. Uprooted from its past, a historically world-less American legal community came to be divided into two hostile camps: a once dominant liberal “progressivism” and, in reaction to it, a now dominant conservative “originalism.”
 
Progressivism claims that its ever-expanding social justice goals are implicit in the Constitution’s founding ideals and warranted by the best traditions of interpreting these. Its understanding of progress makes few concessions to older notions of a properly ordered community and in its heyday amounted to a veritable uprising against the traditional vocation of jurisprudence to guard this collective being. “We have rejected our own magnificent legal heritage in an ill-considered fit of rebellion.” Although Professor Vermeule never specifies the concrete institutional forms entailed by his conception of the common good, he often alludes to a consensus of venerable authorities on the sovereign prerogatives of rulers, on private property, the traditional family, and, one presumes, on the privileges of churches in a well-ordered polity. In a nutshell, this is Common Good Constitutionalism’s picture of our pre-twentieth century legal world.
 
Perhaps surprisingly Professor Vermeule begins by aligning his understanding of the goals of law to those of the liberal political philosopher Ronald Dworkin. For Dworkin, no sound legal reasoning takes place in the absence of pervasively structuring moral assumptions about the common good. As a Catholic traditionalist—a recent convert from the Episcopalian community—Vermeule rejects, of course, Dworkin’s liberal understanding of what these foundational moral principles are and in the strongest terms. While he draws inspiration from the philosopher’s defense of the moral purpose of law, he holds that the latter’s valorization of the individual over the community gave voice to a restless spirit of liberation from tradition and from nature itself, dramatically performed as an endless labor of overcoming injustice. Vermeule takes his cue from Dworkin’s moralism while recognizing that his militant theory of justice provided the strongest philosophical rationale for legal progressivism, the contention that the Constitution is a living document open to substantial revision in the name of justice. Twentieth century liberals deployed this interpretive scheme to harness the powers of an expanding, increasingly law-making administrative state to accomplish their liberatory goals. 
 
Originalism arose in the 1970s as a reaction to the legitimation crisis of an administrative state that had expanded prodigiously under these progressive auspices. Like all politically motivated legal theories, “originalism arose out of a concrete political and rhetorical context in which it struggled with an enemy, an antonym—in this case the progressive legal theorizing of the Warren and Burger Courts.”

One could say that in its pseudo-literalism, originalism is moved by a Protestant spirit for it, too, declares sola scriptura! and manifests the same uncomprehending hostility towards the mediating role of time-honored conventions of interpretation. Like Calvin, the originalists believe that their scripture “exhibits fully as clear evidence of its own truth as white and black things do of their color, or sweet and bitter things do of their taste.”² Having prevailed over its progressive adversary, the now reigning originalism has “enslaved” interpretation to a tendentious, pseudo-literal interpretation of the constitution. But fortunately, its obstructionist agenda has recently been hit by “an overpowering wave of scholarship” discrediting originalist legends surrounding the foundation of the constitution as well as the subsequent rise of the administrative state. Although currently seven out of the nine justices of the Supreme Court are Catholics, Professor Vermeule is here to inform them that originalism as they understand it is opposed to Church teaching on law and politics. 

Happily, this futile project of sticking to the literal meaning of the Constitution is now losing steam, and he predicts that a new generation is coming up that will be searching for an alternative to such blinkered textual positivism. Our new champion of the faith implies that the time has come for the American legal equivalent of a Counter-Reformation which, if it resembles its predecessor, will both restore as well as invent traditions. One suspects that he intends this work to be a prelude to a more comprehensive syllabus errorum of modern American legal doctrines, but we will consider his politico-theological point of view later. 
 
He opines mischievously that the founders themselves adhered to this classical tradition of common good-ism which therefore should be recognized as the actual original interpretation. “The truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.” (“Immolate,” “self-abnegation,” etc.—the work would have been enlivened by more of this sort of humor of the seminary.) In other words, the classical view of public law should be upheld not simply because the founders adhered to it—i.e., not on so-called originalist grounds—but rather because the “common good” refers to the moral commitment intrinsic to the very nature of public law. 
 
Vermeule mentions some recent Court rulings that highlight the spuriousness of originalism’s claim to uphold the intent of the lawmaker: in Chaifolo v. Washington (2020), the Court ruled that states may penalize defiant state delegates to the Electoral College even though the founders clearly intended them to have the right to vote for their preferred candidate. In Bostock v. Clayton County (2020), the arch-textualist Gorsuch argued that Title VII of the 1964 Civil Rights Act covers discrimination on the basis of sexual orientation and gender identity when it is obvious that no one at the time understood it as having this implication. He then goes on to discuss a handful of earlier Supreme Court cases that demonstrate that something like his common good perspective informed the best legal opinions of every era of American justice, even when expressed in opposition to the rulings of obtuse majorities. In Lochner v. New York (1905), a very reactionary Court struck down a New York state law limiting the workday and week for bakers. The notorious opinion of the majority rejected without much ado the traditional salutary respect of American judges for measures taken to protect public health and welfare, a long-standing deference underscored in Justice Harlan’s scathing dissent. Even by the standards of its own time, Lochner was a bad decision and not just retroactively bad by the later standard of the New Deal Court.  
 
In Vermeule’s opinion, the more revealing decision from the common good perspective is the far less well-known case of U.S. v. Curtiss-Wright Export Corp (1936) upholding a Presidential ban on the sale of arms to the belligerents in the war of Bolivia and Paraguay. Here and elsewhere, he presumes that invocations of a unified common good support the existence of a single sovereign office representing that common good. The opinion of the majority authored by Justice Sutherland argued that a) the federal government did not receive its sovereign powers from the states; b) the federal government assumed the attributes of sovereignty directly from the British Crown; and c) these sovereign powers of the federal government logically precede the existence of the Constitution. One might then ask that if the federal government got it from the British from where did the British get it?
 
“The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality…This the court recognized and in each of the cases cited found the warrant for its conclusions not in the provisions of the Constitution but in the law of nations.”
 
In what sense did the law of nations, the jus gentium, authorize the sovereign power of the federal government and, before it, the British Crown? The interpreters of this jus that Vermeule cites held the view that the ultimate source of the authority of government was a foundational appropriation of some portion of the earth by a political community. On several occasions Common Good Constitutionalism pays its respects to Thomas Aquinas as an authority on law and politics. One of the main authorities that Thomas himself cites is Isidore of Seville, who defines jus gentium as follows:
 
“Jus gentium est sedium occupatio, aedificatio, munitio, bella, captivitates, servitutes, postliminia, foedera pacis, induciae, legatorum non violandorum religio, connubia inter alienigenis prohibita.”   
“International law is land appropriation, building cities and fortifications, wars, captivity, bondage, return from captivity, alliances and peace treaties, armistice, inviolability of envoys, and prohibition of marriage with foreigners.”³   
 
Here, the constitutive act of a political community is the appropriation of a home territory by conquest or settlement conferring an original title in accordance with a widely if not universally recognized natural right. The formation of the legal-political order was conceived as an act anterior to the expression of popular will, for arguably it was what constituted a people in the first place. Properly restored, this classical understanding of the law of nations can provide intellectual resources for drastically diminishing the troublesome pretensions of “We the People.” It is worth noting that neither popular sovereignty nor any of its correlates are so much as mentioned in this little book. 
 
Common good constitutionalism is both domestic public law and international law and should be situated in a wider international legal project of catholic proportions. 
 
“Where at all possible, classical law reads the law of a particular jurisdiction (the ius civile) in light of the ius gentium (law of nations) and the ius naturale (natural law), which the civil positive law is taken to specify or determine within reasonable boundaries.”
 
One of the purported intellectual advantages of common good constitutionalism is that it will reopen the windows of American law onto a wider legal-political civilization to which it belongs unknowingly. Alongside its other Latin appellations, this civilization has been called the jus publicam europaeum, the community of European polities transformed by a centuries-long incorporation, or “reception,” of Roman law into their administrations of justice. English common law is often mistakenly seen as having evolved in isolation from this wider development but Vermeule prefers the scholarship that holds that it is but a national variant of this jus commune whose origins are proverbially misty.
 
The Ancient Constitution and the Feudal Law by J.G.A. Pocock is a study of the legend of an immemorial English constitution forcefully propounded by Edward Coke, the leading light of early modern common lawyers. According to the latter, from time immemorial, the law of the land was the product of a purely internal development. Pocock showed how this early modern mythology effectively insulated the common law mind from the corrosive impact of the contemporary discovery of vast changes in property law stemming from the imposition of Norman feudalism. The fabular aspect of common good constitutionalism resembles the myth propounded by Sir Edward Coke in opposition to Jacobean innovations of royal prerogative, which is ironic because Vermeule likes to call his originalist opponents “new Cokeists” for their blinkered opposition to the administrative state. Like the old Coke, he also speaks of an ancient legal prudence but does so from the point of view of Leviathan. De te fabula narratur.
 
Vermeule suggests that what decisively shaped the outlook of the founders was neither the European Enlightenment nor Harringtonian republicanism but rather the English common law as it came to them in editions of William Blackstone’s Commentaries on the Laws of England. We can see how far we have strayed from our traditions, he tells us, because we no longer understand the organizing conceptual scheme of these commentaries. The latter distinguished the rights of persons from the rights of things and from wrongs both private and public and, testifying to an unbroken tradition, was taken straight from The Institutes of Gaius. What explains the prominent role of Roman law in shaping later social formations? The following passage conveys a sense of the harsh and rigorous fixation on property characteristic of its revered digests.
 
“In iure cessio is performed as follows: in the presence of a magistrate of the Roman people, such as a praetor, the party to whom the surrender is being made, holding the thing, says: ‘I declare that this slave is mine by Quiritary title’; then, after this vindication, the praetor asks the surrenderor whether he makes counter-vindication and, on his replying in the negative or keeping silence, adjudges the thing to the vindicant.”⁴
 
Vermeule never touches on the historical variations of forms of property and the legal orders that take shape around them, but surely these are what impart concreteness to notions of the common good. It would have strengthened his case to have addressed this problem of historical change, however briefly, for in order to accept it we would need to know to what extent the America of today inhabits the same world of community and property forms that Gaius or Thomas or even Savigny lived in such that referring to the latter is something more than a well-intentioned decorative gesture.
 
What light could ancient and medieval eminences shed on the constitutionality of, for example, The Business Recovery Act? Professor Vermeule suggests that they offer today’s public lawyer supple rationales for the exercise of expanded executive powers. “In the classical tradition, law is seen as—in Aquinas’ famous definition—as an ordinance of reason for the common good, promulgated by a public authority who has charge of the community.” But who has this authority, what is its scope, and to what end is it exercised? According to Thomas, the highest public authority exercises both lawmaking and law-interpreting power, without division of power. How should judges and other subordinate magistrates interpret the exceptional ordinances of the sovereign authority? Here the Thomist agrees with the Hobbesian that the will of the lawmaker can only be properly interpreted in accordance with this guiding principle of equity. Reflecting on these continuities, Carl Schmitt said it best:
 
“A concept of law which sees legislation as an affair of government approaches the concept of law held by Thomas Aquinas. According to this great philosopher, law is essentially an act of government, it is ‘not the reason of any kind of men, but rather the practical reason of those who lead and govern the community.’”⁵
 
In his defense of the new order in Germany, this author argued that its legal innovations were not outrageous departures but partook of a wider development of the modern state. He pointed out that in France, the UK and the US, courts once deferred to legislatures but now this deference was primarily to the executive and its administrative tribunals. Like Schmitt, Vermeule sees the restoration of ancient prudence as a way of resolving the intractable contemporary predicaments of the rule of law. 
 
“The scale, complexity, and rapidity of lawmaking in the modern state grew to such a point that neither general rules nor ad hoc commands could keep up. Rather, actors in the system, particularly judges, turned to general principles of law making to maintain a supervisory role for legality. Administrative law, particularly the jurisprudence of judicial review of administrative action, turns out to be pervaded by principles of what used to be called general law, unwritten jurisprudence.”
 
Vermeule opposes his own sanguine attitude towards this development to Schmitt’s more conservative misgivings, but in order to draw the contrast he somewhat misleadingly refers to the latter’s lecture from 1943-44 delivered when it was clear that Germany was about to be defeated. It should be noted that in 1933-34 Schmitt advanced the view that Vermeule defends here—though, of course, this similarity must be qualified with due regard to the differences between the regimes in question. In these earlier writings Schmitt embraced this eclipse of legislative statute by executive measures—arguing that what was once the exception had become the norm—and sought to elaborate on the significance of this transformation on the very concept of law.   
 
“From all sides and in all areas of legal life, so-called general clauses surge forward in a way that wipes out every positivistic ‘certainty’: these include indeterminate concepts of all kinds, references to extra-legal criteria, and notions such as common decency, good faith, reasonable and unreasonable demands…Neither legislation nor the administration of justice could dispense with them today.”⁶
 
When it became obvious that the Third Reich was heading for defeat, Schmitt reversed gears and characterized this expansion of rule by executive degree acting under enabling general clauses as a menacing deformation of the historic vocation of law. In an article entitled, “The Plight of European Jurisprudence” (1943), he argued that the “motorized” lawmaking of the administrative state was leading to the dissolution of even the semblance of legal form. How does Vermeule respond to Schmitt’s later assessment of the plight of a beleaguered jurisprudence? He believes that the problem Schmitt identified in this later text—the destabilizing uncertainty generated by ad hoc administrative decision making—has been more or less solved in the United States. The Administrative Procedure Act of 1945 has long provided a workable charter of general principles for the judicial review of administrative rule making and adjudication. Our true constitution is written but mainly operative in the shadow. 
 
This unsettling portrayal of the US government is on the whole persuasive but poses a problem for would be proponents of common good constitutionalism. For what is the urgency for its alternative executive-centered conception of law when far-reaching delegations and suspensions already form the backbone of the current regime of administrative governance? The attentive reader will no doubt be struck by what appears to be a glaring inconsistency in the historical narrative of Common Good Constitutionalism. Its author insists that the administrative state has constitutional roots going back to before the foundation and so cannot be seen as an innovation, whether good or bad, of the twentieth century. But if its twentieth century expansion is best conceived in the terms of this so-called classical tradition, why then was the latter forgotten in the very period when its assumptions came to be embraced? Perhaps he would answer that at the time progressivism appeared as the only ideology that could justify this expansion. We are not told. The present crisis calls for drastic measures, not interpretive finesse. 

“In order to revive and renew the classical tradition in and for American public law…one must break with the immediate past. The last few chapters of a long chain novel have to be partly ripped up, partly reinterpreted in drastic terms.”
 
For the author, common good constitutionalism seems to be, on the one hand, a thunderous restoration that will rip many recent chapters of legal history from the books, and on the other, merely a better understanding of the existing practices of the administrative state. 
 
In any event, Vermeule makes no bones that the position of the executive under our current constitutional regime is effectively princeps legibus solutus: “statutes and constitutional provisions should be interpreted to allow the highest public authority in the polity to exercise prudential judgment about whether an exceptional situation exists, such that subsidiary institutions have in some way failed and the positive powers and duties of subsidiarity have been in some way triggered.” Our constitutional order has effectively become a concrete order of political institutions and arrangements with implicit notions of emergency powers never fully expressible in the text of law: “The state is to be entrusted with the authority to protect the populace from the vagaries and injustice of market forces, from employers who would exploit them as atomized individuals, and from corporate exploitation and destruction of the natural environment.”  

In upholding Obamacare against states that refused to establish health exchanges in King v. Burwell (2015), the court would have been on firmer ground, in Vermeule’s opinion, if it had employed this principle of subsidiarity. Between 1877 and 1937, courts established wide-ranging federal police powers that have expanded remorselessly since. The New Deal, Great Society, Affordable Care Act and the massive expansion of environmental protection measures are manifestations of a now irreversible trend.
 
What are the constitutional safeguards against government abuse of power? Vermeule responds to this concern by retorting that government inaction allows the even greater abuses of private power to flourish. A conservative judiciary has all too often interfered with the legitimate prerogative of the executive to curb powerful private actors and subordinate state and local governments. Incidentally, this is precisely the situation Schmitt addressed in his late Weimar writings where he argued for the imposition of presidential rule by decree over the federal state of Prussia, still in the hands of recalcitrant Social-Democrats. For Vermeule, the risks of the abuse of executive police power are far outweighed by those posed by unregulated market forces and by lower levels of government not as mindful of the interests of the whole community. He enjoins the responsible chief executives of the US and of the West more generally to take heed of the counsel of the Spanish legal theorist Ricardo Calleja: imperare aude!

One must credit Vermeule for boldness as he flaunts the usual, obligatory gestures of respect for democracy. Like our Angelic Doctor, he seems to prefer a more authoritative kind of res publica. He belongs to a time-honored tradition of Catholic thought that recognizes that different forms of government can uphold the common good, including well-heeled dictatorships. 
 
“In fact, all political orders that are not wholly tyrannical can seek the common good. This is difficult for the liberal mind to accept because it is supposedly obsessed with the question of what is the best form of government, a question that it dogmatically answers by insisting that only electoral democracy can be legitimate.”⁷
 
Off-color remarks on democracy by a conservative Catholic Harvard Law Professor might once have occasioned a hue and cry from liberals, but these are interesting times, and these liberals are not what they used to be. Professor Vermeule seems to be counting on the fact that one can now say things about the incapacity of the electorate to choose wisely and the need for strong guidance from above that would not have been thought acceptable to utter before the preceding presidency. Professor Vermeule will know how far his liberal colleagues are now willing to go down the path of enabling the executive to take all necessary measures against any threats to the dominant wing of America’s ruling establishment. These former stalwarts of free speech will now even tell you they don’t much appreciate you making fun of them. 
 
The thesis of common good constitutionalism is that the public interest is best served by an executive exercising law-making powers. But here we simply cannot get around the quintessential Schmittian problem of the legitimacy of the law—for on what grounds are subjects and lesser magistrates obligated to obey such legal commands? Vermeule simply ignores the doctrine of a government of the people at the time of the founding of the constitution, but here his omission arguably defies any practical political calculus. Given the backlashes that twentieth century expansions of the administrative state provoked, there is every reason to believe that its further untethering will unleash an even deeper legitimation crisis. However these revolts turn out, it hardly seems plausible that all the townies will be palmed off with soothing invocations of a common good as conceived by the professor and his colleagues. In societies like ours where the legitimacy of executive prerogative is often in heated dispute (though there is now a nearly universal consensus in the US that the POTUS is above the law when dealing with foreign affairs) bypassing this problem of the ultimate locus of sovereignty would seemingly be a non-starter for any consequential constitutional teaching. 
 
While it is clear that Vermeule does not think much of the idea that the ultimate source of legitimacy must come from below—from a people subjecting itself to laws of its own making—he does not say whether there is some alternate source of constitutional authority that might come from above. Somewhat disingenuously he claims to eschew any interest in the political philosophical problem of who decides what the common good is.
 
“This is not a work of constitutional legal theory or history, nor is it a work of political theory. Rather, it is written from a lawyer’s point of view to orient practitioners in the burgeoning domains of administrative law.”
 
But if all serious conceptions of public law presuppose some, ultimately moral, idea of the common good, how does his conception of it differ from the progressive’s—in other words, what is the content of the common good, “classically” conceived? Vermeule passes on the question, arguing that it is “a category mistake” to ask for details about what he means by the term because all he wants to do here is defend the necessity of some general conception of the good and apprise the practicing lawyer of the existence of an intellectually rich tradition of justifying government prerogatives that may seem constitutionally unauthorized.
 
A supposedly natural moral intuition tells us that law should be ordered to the common good, but let us now look more closely and ask what that is. He cites the seventeenth century Jesuit Giovanni Botero’s definition of it as “peace, justice and abundance.” Put in plainer, more modern terms, the common good could be said to consist then of order, due process and economic growth. But isn’t this simply the older conservative-liberal view propounded by Hayek among others? Vermeule I think would reject its vision of a spontaneous economic order, maintaining that the elevated dignity of the common good stems from it being more than an aggregation of the interests of the good of individuals. But the whole is arguably only of greater value than the value of the individuals who belong to it when it can demand the sacrifice of their property and lives in the face of external threats. 

Vermeule chooses not to dwell on the kind of existential threats to national security and public safety that would motivate a doctrinal overhaul of constitutional law, but instead points to worrying, if not life threatening signs of moral decay that animate America’s conservatives. But even here our recent convert avoids going too far out on a limb and only mentions controversies surrounding what are called abortion rights in passing. All the examples of justice gone awry he points to are the small beer of the culture war, and on these topics he appeals to the decent feelings of the majority. His preferred judicial regime would reverse recent “execrable” decisions of the Court striking down a law making it a crime to have received the Congressional Medal of Honor under false pretenses and another prohibiting virtual child pornography. But he then suggests that more controversial rulings will come. “The Court’s jurisprudence on free speech, abortion, sexual liberties and related matters will prove vulnerable under a regime of common good constitutionalism.” Pour épater, he amusingly hints that penalties for blasphemy might be reinstated; after all, ridicule of Christ was still a crime on the books in many locales until right before WWII. His online professions of political Catholicism are somewhat bolder and may trouble more delicate souls at America’s top law schools, for here there is the whiff of an older counter-revolutionary Catholicism aimed squarely at liberalism. 
 
“At the level of revolutionary politics, the Church and clergy were central targets for the rage of the philosophes and the violence of the mob. At the level of theory, Maurice Cowling showed that Mill’s putatively rational and tolerant liberalism was born out of a patricidal hatred of Christianity, and a desire that the wheel of history should turn once more, and then stop—with the Church replaced by a progressive ‘clerisy,’ enforcing liberal commitments through state education. Both politically and theoretically, hostility to the Church was encoded within liberalism from its birth.”⁸
 
It is often hard to know how seriously one should take such dour sermons. Today’s trad sub-culture is an intellectually shabby affair, the latest fringe of a vacuous post-secularism, and one hopes that Professor Vermeule stays away from it for he has a serious political agenda whatever one thinks of it. As the great Charles Maurras once said, it is “politics above all” that determines whether or not one is a Catholic, and not romantic longings for meaning. But precisely on this score, his sense of the true significance of his new faith can be refreshingly concrete.
   
“Luke’s picture of Paul in Acts is a sustained portrait of the Christian. Indeed, Acts is something of a manual of tactics for an embattled Church, navigating the complex political environment of a multicultural, multi-faith imperium that is both puzzled by the Church and structurally (although episodically) hostile to it—somewhat like our own liberal imperium. Luke’s Paul is, like Macaulay’s Jesuits, radically dogmatic as to ends, radically flexible as to tactics and means.”
 
But what are these political ends, and are they Catholic? The crucial issue here remains the relationship of Church and State, of the two heads of the eagle. How does the expanding scope of executive prerogative—itself quite flexible as to tactics and means—relate to the fate of our embattled Church? It certainly serves the purposes of promoting our liberal imperium, but it is not at all clear how it serves the ends of the Roman Catholic Church. I think the end to which Vermeule alludes may be the conclusion of something like a Concordat with America’s ruling powers along the lines of its establishment as an official religion of a once hostile “multi-cultural and multi-faith” Roman Empire, or perhaps its more defensive partnership with certain twentieth century regimes. That may seem unlikely, but perhaps only a miracle can save us now. A now-forgotten French author of the Belle Epoque once quipped that the Church is the last remaining pillar of the civilization of Old Europe. Sometimes one fears that America’s ruling establishment means to weaken, demoralize and finally break the Roman Church. If this comes to pass, we would then be in a world in which the last link to “our magnificent legal heritage” among other legacies will be sundered. We will then come to know Leviathan.   

1. Adrian Vermeule, Common Good Constitutionalism (Cambridge: Polity, 2022). ↩︎
2. John Calvin, Institutes of the Christian Religion, ed. John T. McNeill (Louisville: Westminster, 1960) 1, 76. ↩︎
3. Isidore of Seville, Etymologiae, in Carl Schmitt, The Nomos of the Earth, trans. G. L. Ulmen (New York: Telos, 2006), 44. ↩︎
4. Francis De Zulueta, The Institutes of Gaius, Part I: Text with Critical Notes and Translation (Oxford: Claredon, 1946), 71. ↩︎
5. Carl Schmitt, “Vergleichender Überblick über die neueste Entwicklung des Problems der gesetzgebersichen Ermächtigungen” [1936], reprinted in Positionen und Begriffe im Kampf mit Weimar—Genf—Versailles, 1923-1939 (1940). ↩︎
6. Carl Schmitt, On the Three Types of Juristic Thought [1934], trans. Joseph Bendersky (Westport: Praeger, 2004), 90. ↩︎
7. It should be said that by most accounts of the history of political thought this is simply wrong: it was the Greek philosophers of the Classical era who first posed this question of the best regime of the polis variety. Most scholars recognize that early modern theorists of natural law subordinated this concern to the protection and promotion of individual rights. Of course, modern liberals maintain that a liberal-democracy is not just the best but really the only legitimate regime, yet they regard it as the best only because it is the unique means of attaining the end of rights protection. ↩︎
8. Adrian Vermeule, “A Christian Strategy,” First Things (November 2017). ↩︎