In 2016, the Obama administration informed the Little Sisters of the Poor, a Catholic religious order devoted to caring for the elderly, that they were required to provide contraceptive coverage under the Affordable Care Act or face ruinous fines. The administration’s position was that routing the coverage through a third-party insurer satisfied any religious objection to contraception. The Little Sisters disagreed. The legal battle ran to the Supreme Court twice before they prevailed.
The Little Sisters case is routinely offered as a refutation of the “common good constitutionalism” argument advanced by Harvard Law professor Adrian Vermeule. For many conservatives and libertarians, it seems to be a cautionary tale of what happens when the state reaches for substantive moral ends and the wrong people are holding the lever.
That argument has surface plausibility. But it does not survive contact with Vermeule’s actual argument or with the tradition it derives from.
Vermeule’s argument, stripped to its load-bearing structure, is this: the American administrative state already exercises enormous power directed toward substantive moral ends. Liberal proceduralism did not create a neutral state. It created a state that encodes a particular moral vision, one in which individual autonomous choice is the terminal value, and then disguised that vision as neutrality.
This condition is not obvious, Vermeule suggests, because it did not emerge all at once. The government’s reach expanded gradually, each intervention normalizing the next, until substantive moral judgments arrived dressed as administrative routine. The HHS mandate was not a neutral administrative act. It was a substantive moral judgment: that access to contraception is a public good sufficient to override the conscience of a religious order that has cared for the elderly poor for a century and a half.
True, the law offered a way of opting out of directly providing contraceptive coverage. But even that possibility conceals a substantive moral judgment. The accommodation framework, the third-party administrator workaround, the balancing test: all of it assumes the Little Sisters’ conscience claim is just one preference among others to be weighed, rather than a limit the state cannot cross. That assumption is not neutral. It is a conclusion about the relative weight of different moral concerns.
Vermeule is regularly attacked for illiberalism, but he is not wrong about this. His advantage over his critics is his honesty about the fact that the state is always already pursuing substantive moral ends––and that pretending otherwise does not constrain power, it conceals it.
He is right about the diagnosis. However, he is wrong about the direction of inference.
The tradition Vermeule is recovering was not built to direct state power. It was built to limit it, from a position outside the apparatus, in conditions where the apparatus was hostile. That distinction matters more than any question of personnel.
The argument has a precise origin. At Salamanca in the sixteenth century, Bartolomé de las Casas argued against the most powerful Catholic state in history that conscience is inviolable, not because it is infallible, but because coercing it destroys the moral act it claims to protect.
That is not a liberal argument, nor does it rest on the ideal of neutrality. Yet the thinkers of the Salamanca tradition were not building a framework for when their own side held power. They were building a framework for when it did not.
That is what natural law is: a limit on what the state can do that does not depend on who runs it at any given time. What the Salamanca tradition established was not a framework for removing moral ends from the state’s scope. It established a framework for evaluating which moral ends are legitimate by reference to a standard the state did not create, and could not dissolve by changing its personnel.
The thread that leads from that lecture hall to Vermeule’s seminar at Harvard Law is long and not without tension. What changed is that the liberal tradition, having inherited the natural law framework through Grotius and Locke, gradually detached it from the account of human nature that gave it its content. Rights became formal. Neutrality became the ideal. The state became, in theory, a procedural referee, and in practice, an enforcer of the moral vision that procedural neutrality encodes.
The Little Sisters discovered what that vision demands of dissenters: submission.
Las Casas was not asking the crown to govern better. He was telling it that what it was doing carried no legal force, because no authority can legitimately command what natural law forbids. The argument did not depend on the crown’s formation, its intentions, or its willingness to interpret the tradition correctly. It stood above the apparatus entirely.
Vermeule’s framework does not share these properties. It routes the common good through a jurisprudential class trained to interpret it, which means the constraint is internal to the apparatus rather than above it. A constraint that lives inside the institution it is meant to discipline is not a limit on power. It is a feature of power. Remove the assumption of a sympathetic jurisprudential class, and what remains is the same aggregated administrative authority, with no mechanism for the tradition to discipline the practitioners. The Little Sisters did not need administrators formed in a better tradition. They needed an argument the apparatus was bound to recognize on its own terms.
They did not get that forum. They won instead through the Religious Freedom Restoration Act, a statutory workaround that the liberal framework constructed precisely because it had no room for the conscience claim on its own terms. The tradition had to be smuggled in as a statutory exemption, because the apparatus had no mechanism to recognize it as a limit. That is not a vindication of liberal proceduralism. It is its confession.
The argument the Little Sisters made is not new. Las Casas made it first.
About The Author
