Two years ago this past month, law professor Garrett Epps published a short essay entitled “Common-Good Constitutionalism Is an Idea as Dangerous as They Come” in a high-brow literary magazine, The Atlantic. That he published his essay in this organ rather than, say, a law review suggests that he was trying to reach non-specialists. The result, I am afraid to say, is a disaster. The essay is too simplistic to be of any use to his fellow law professors, but too arcane and abstract for many or most of the magazine’s readers.
The essay purports to be a critique of a new movement called “Common-Good Constitutionalism” (hereafter CGC), but it fails miserably by any reasonable scholarly standard. What it ends up being is a series of accusations and aspersions that are designed, one suspects, to turn the uninformed reader against CGC. Let me give just a few examples of Epps’s manipulative rhetoric:
Epps says, early on, that the guiding light of the new movement, Harvard law professor Adrian Vermeule, arrived at CGC on the basis of his newfound religious faith, Roman Catholicism. Here is the full sentence in which Epps makes this claim: “Four years ago, he [Vermeule] was received into the Catholic faith, and has adopted a radically conservative posture toward law and society.” The clear implication is that Vermeule adopted CGC because of his conversion, but Epps provides no evidence that this is the case. Without such evidence, the claim commits the fallacy of post hoc, ergo propter hoc (“after this, therefore because of this”).
Even if Epps is correct that Vermeule adopted CGC as a result of his religious conversion, it doesn’t follow that CGC is false or unacceptable. That would be to commit a different fallacy: the genetic fallacy. How a belief came about is one thing; whether it is true is another.
Are you starting to see how Epps operates? Sly innuendos substitute for argumentation. People who endorse theories he dislikes get the detriment of the doubt rather than the benefit of the doubt. He should address CGC on its merits rather than questioning its genesis or impugning the motives of its proponents.
Epps goes on to accuse Vermeule of wanting to “subordinat[e] the state to the principles of the Catholic Church.” This is disingenuous. CGC is explicit in its concern for the common good. That Catholic moral teaching is also concerned about the common good is, for all we know, a happy coincidence for Vermeule; it does not show that he is seeking to bend the law to the teachings of his church. Suppose Martin Luther King Jr derived the idea of the equal dignity of human beings from his religion (as he actually did). Does that in any way call the idea of equal dignity into question? The question answers itself. Religion has been a source of many of our most cherished ideas and ideals. To suggest that that fact makes those ideas or ideals questionable is risible.
What is going on? Epps, I think, is engaged in anti-religious (perhaps anti-Catholic) bigotry. It pains me to say this, but I know of no other plausible explanation for what he says (and how he says it). I suspect that many or most readers of The Atlantic are agnostics, if not atheists. They are, as such, disposed to dismiss any idea, movement, theory, or trend that has any association with religion (or, specifically, Catholicism). Epps is taking advantage of this. He doesn’t need to come right out and say it; the message comes through loud and clear.
Epps is also sending a message to law students and untenured (therefore insecure) legal scholars. “Don’t associate with Vermeule or write favorably about CGC. If you do, you’ll be mocked, isolated, and shunned; and that might do damage to your legal career.” Vermeule himself can’t be harmed by Epps’s disparagement, for he is a tenured professor at a prestigious law school, but less-secure individuals may well be.
Epps, sad to say, is not beyond name-calling. Halfway into his essay, he calls Vermeule “an authentic Christian nationalist.” This may seem innocuous, but think about what he’s doing. Vermuele is indeed a Christian, and he is also a nationalist (as opposed to a cosmopolitan) in terms of political philosophy, but what in the world is a “Christian nationalist”? It sounds vaguely like “white nationalist,” and from there it’s not a long way to “fascist” or “Nazi.” Is Epps calling Vermeule a Nazi? Is he saying that Vermeule is a theocrat? I’ll leave it to you to decide. Note, too, that from the facts that S is an x and S is a y, it doesn’t follow that S is an xy. Alejandro may be Spanish and also a dancer, but it doesn’t follow that he’s a Spanish dancer.
The manipulative rhetoric of Epps’s essay never ends. He says that Vermeule’s “argument really is for authoritarian extremism.” My! Epps is playing upon the negative connotation of “extremism.” But think about it. Doesn’t the goodness or badness of extremism depend on what one is extreme about? Are libertarians not extreme about liberty? Are progressives not extreme about equality? As Barry Goldwater famously said, “Extremism in the defense of liberty is no vice; moderation in the pursuit of justice is no virtue.” Vermeule believes, quite reasonably, that extremism in the pursuit of the common good is no vice. When you think about it, how could any reasonable person reject the idea that law should be oriented to the common good? What else is there, really?
Late in his essay, Epps accuses Vermeule of “reading into [the Constitution] [his] own ideas.” This, I submit, is willful misrepresentation. Vermuele is clear beyond peradventure that the Constitution contains several open-ended provisions, such as “due process of law” and “equal protection of the laws.” Everyone, interpretating these provisions, must specify them. This process is called “determination.” While this term is used by Catholic moral theologians, it is not limited to them. Philosophers write articles about how to specify abstract moral principles, such as the principle of respect for autonomy or the principle of non-maleficence. Vermeule says that judges and other legal authorities must specify the majestic generalities set forth in the Constitution. What’s the problem with that? Epps provides no answer, and by doing so he invites the reader to conclude that Vermeule’s theory (CGC) rests on will rather than reason. It most emphatically does not.
Finally, Epps says that Vermeule’s “way of thinking” is “dangerous.” Unfortunately, he never explains why. Dangerous to whom or what? More dangerous than other approaches or theories, such as living constitutionalism or originalism? Dangerous if abused, or inherently dangerous? Again, Epps is using an emotionally charged word (“dangerous”) to manipulate his audience. Who wants to be associated with a dangerous legal movement?
Epps’s essay is, admittedly, fun to read. Everyone loves wit and sarcasm (or what is today called “snark”). But when wit and sarcasm come at the expense of someone who is propounding a serious theory of law, the author has a professional duty to get that theory right, and to avoid manipulative rhetoric. He or she also has a duty to treat others—especially those with whom he or she disagrees—respectfully. Epps fails on every count.