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In this response to a recent symposium on Common Good Constitutionalism in the American Journal of Jurisprudence, I principally take up themes related to democracy, disagreement, pluralism, and authority. I emphasize that the classical legal tradition is teleological, oriented to performance standards rather than design standards. Thus it does not attempt to prescribe an identical set of constitutional and institutional arrangements for all polities everywhere, but asks whether constitutional arrangements are ordered to the common good and (thus) compatible with natural and divine law. Subject to those conditions, political authority is natural, inevitable, inescapable, and good. The possibility of social and political disagreement is just a precondition for all law, not an objection to the classical legal framework. None of this entails judicial supremacism in any form, which the classical legal tradition squarely rejects.

My topic is the perennial debate over universalism and nationalism, from the standpoint of classical law, political theory and political theology. I approach the topic through the lens of the concept of Empire, which I will equate to a “true world political authority” in the sense Benedict XVI and Francis have urged, and which I will argue is thesis or first-best, a regulative ideal. The classical understanding of Empire provides general principles that can be revived, translated and adapted to new circumstances, preserving the essence of those principles while their application changes. However, I also reject certain critiques of nationalism that I believe are simplistic. In particular, nationalism rightly ordered and understood is an understandable non-ideal or second-best response to badly ordered forms of universalism; nationalism is a temporarily valid hypothesis, relative to certain conditions. Proponents of universalism and nationalism often talk past one another, creating a mere illusion of disagreement — especially when and because one party defends universalism as ideal thesis, and the other defends nationalism as nonideal hypothesis.

A commonplace about revolutions, and counter-revolutions, is that however dramatic they may be in the short run, in the long run they often produce less change than their proponents hope and their opponents fear. Sometimes revolutions or counter-revolutions even serve to cement into place, or indeed augment, the very structures and norms that the revolutionaries found most objectionable. Such a thesis was suggested as to the most dramatic upheaval of them all, the French Revolution of 1789. In The Ancien Régime and The Revolution, written in 1856 after a long series of revolutions and counter-revolutions of varying description, Alexis de Tocqueville argued not only that the Revolution was as much an outgrowth of earlier laws, institutions, and norms as a departure from them, but also that those laws, institutions and norms largely survived the Revolution; indeed, they were in a sense confirmed and strengthened by it, albeit clothed in new outward forms. In what follows, I will suggest a similar thesis, of course on a much smaller scale, as to the Loper Bright “revolution” and indeed the administrative law “revolution” more generally. It is already possible to see how Loper Bright both grew out of pre-existing legal doctrines, principles and trends, and also to see how the chastening of the Loper Bright revolution could occur, leaving in place much of the old Chevron regime under different labels. Indeed, I will argue, the beginning of that process is already visible within the four corners of the majority opinion itself, and in subsequent lower-court decisions. In the long run, the Loper Bright revolution, and the larger movement of which it is the centerpiece, will have at most a marginal effect on administrative law. The laws and customs of the ancien regime will be (and already are being) reintroduced, in new forms and under new labels.

Drawing upon Roman public law and the classical Western ius commune generally, I sketch a law-governed constitution of hierarchy, including its institutional form and its basic justification. Grounded in a popular delegation of sovereign authority and power (imperium and potestas) to the Roman emperors and subordinate officials, the constitution of hierarchy is pervasively shaped and constrained by law and legal norms, written and unwritten, that orient the lawful exercise of power to the public good; it includes subsidiary democratic mechanisms of petitioning, consultation, and local and provincial democracy. The alternative to the constitution of hierarchy is not political egalitarianism, but an alternative hierarchy of arbitrary and exploitative rule, dominated by an economic and social class of optimates.

The Supreme Court faces a real dilemma in the Loper Bright case, in which the Court will explicitly consider whether to overrule the Chevron decision. The dilemma is decades in the making, and arises from the interplay of large structural forces, between which the Court is uneasily positioned. On the one hand, the background conditions of the American administrative state, which produce an array of broad and vague delegations to administrative agencies on highly technical subjects, tend to limit the scope of judicial review of agency legal interpretations. On the other hand, the fundamental importance of judicial review of agency legal authority as a legitimating mechanism for the administrative state presses judges towards plenary review of agency legal interpretations. The combination of these two large-scale pressures creates the deference dilemma. It threatens to make plenary judicial review of agency legal interpretations both intolerable and indispensable. In what follows, I explain this basic problem, explore its causes and sources, and speculate about some possible futures for the Chevron framework in particular and the deference dilemma in general. The most interesting possibility is an express overruling of Chevron, combined however with a reframing of “deference” that preserves much of the content of Chevron under a different label. On this reframing, the overruling majority will say — along lines indicated by Henry Monaghan decades ago — that de novo or plenary judicial review of agency legal interpretations is required by legal sources (either by the Administrative Procedure Act, by Article III, or both), yet will also say that de novo interpretation might of course itself yield the conclusion that, in a given statute, Congress has delegated primary responsibility to agencies to fill in statutory gaps or ambiguities.

Among theorists of legal liberalism, a common assumption is that the rule of law, rightly understood, entails some version of the separation of powers — especially the separation of adjudication from the making or enforcement of law. Classical legal theory, by contrast, remains generally agnostic about the separation of powers, but holds that a combination of powers is entirely consistent in principle with a profound commitment to the rule of law and legal justice. On the classical view, no particular institutional technology, including the separation of powers, is defined into the rule of law, so long as the constitutional order as a whole is rationally and adequately ordered to the proper end of law, the general welfare or common good.

On 28th February, William Baude of the University of Chicago Law School delivered the annual Scalia Lecture at Harvard Law School,[2] titled “Beyond Textualism?”—with startling results. Startling but also welcome, as we will explain.

What passes for the American intellectual right is a sorry thing. Indeed, it lacks even the virtues of unity and coherence; in reality, it is fractured, an ever-changing hodgepodge of views and conflicting mini-movements. To the extent there exists any institutional structure at all, it is only to be found on the right wing of liberalism, Conservatism Inc., which coheres in a brittle way only at the price of stasis, recycling nostrums for Reagan’s birthday, policing intellectual challenges, and establishing yet another Center for Madison and Mammon at some nominally Catholic university or other, funded to the tune of $10 million by some calculating donor who suspects Leo XIII was a dangerous socialist.

Both in the history of western law generally and in the American constitutional order in particular, broad delegation that empowers executive government, in conjunction with the administrative state, is not best understood as an alternative and competitor to lawful government by the people. Rather it may be a means of lawful government by the people, an exercise rather than a betrayal of popular sovereignty. In particular, it may be the way in which the people of some given polity have called upon law to protect and enforce popular sovereignty in an oligarchic world, one in which corporations and economic elites exploit and abuse their legal entitlements, including through judicial processes. Delegated executive authority, and the resulting executive and administrative state, might best be seen as a kind of gigantic force that the many have created and deployed to protect themselves from the abuses of the few.

A large academic literature discusses the nondelegation doctrine, which is said to bar Congress from enacting excessively broad or excessively discretionary grants of statutory authority to the executive branch or other agents. The bulk of this literature accepts the existence of the doctrine, and argues only about the terms of its application or the competence of the courts to enforce it. In this essay, we argue that there is no such nondelegation doctrine: A statutory grant of authority to the executive branch or other agents never effects a delegation of legislative power Agents acting within the terms of such a statutory grant are exercising executive power, not legislative power. Our argument is based on an analysis of the text and history of the Constitution, the case law, and a critique of functional defenses of the nondelegation doctrine that have been proposed by academic.

The Original Scalia Adrian Vermeule* What follows is a lightly footnoted version of a lecture delivered at Harvard Law School on October 19, 2022, as part of the Herbert W. Vaughan Academic Program…

In what follows, I offer a short response to a review by William Baude and Stephen Sachs of Common Good Constitutionalism (Polity 2022). The response is by no means exhaustive, but focuses on the central and crippling deficiencies of the review, deficiencies that specialists in jurisprudence have previously pointed out in their work. Baude and Sachs confidently imagine that their particular, highly idiosyncratic versions of positivism and originalism provide the yardstick against which all public law theories should be measured. They present as unquestioned axioms of legality and legal interpretation in our legal order what are, in fact, highly controversial views, which do not correspond to or derive from any recognized version of positivism in jurisprudence. Indeed they go so far as to imply at several points that agreement with their nonstandard approach is the sine qua non of genuine scholarship. Baude and Sachs’ approach in effect tries to pass off as a deep sociolegal consensus claims that are highly contestable and contested, claims for which they provide essentially no evidence.The main consequence of these errors is that Baude and Sachs silently assume away the non-positivist premises of the classical legal tradition. This fundamental error infects all the subsidiary points in the review, which repeatedly misconceive the claims of the classical legal tradition by treating those claims as erroneous or unnecessary positivist arguments, rather than trying to understand them on their own very different terms. Unless and until Baude and Sachs learn to learn, as it were, they will remain unable to engage in any interesting way with the rich variety of American legal theory.

Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.

Ketanji Brown Jackson is the latest liberal to embrace an approach once associated with conservatives

We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.

The ninth edition of this classic casebook Administrative Law and Regulatory Policy: Problems, Text, and Cases is streamlined and updated while retaining the previous editions’ rigor, comprehensiveness, and contextual approach.

This essay takes stock of the debate over common good constitutionalism and the revival of the classical legal tradition. In doing so, we suggest that several of the most common critiques of that revival are based on serious misconceptions and question-begging claims, especially for the superiority of originalism.Our hope is to clear away these myths so that actual engagement may occur. We hope to inaugurate a new phase of discussion, one in which critics of the classical legal tradition begin with a baseline comprehension of what it is they are criticizing. In a sense, despite all the sturm und drang, the real debate over common good constitutionalism has yet to begin.Part I sketches the largely ersatz debate so far. Part II introduces the essentials of the classical theory of law and of common good constitutionalism, which is nothing more than the core precepts of the classic legal tradition translated, adapted and applied to current constitutional debates. We do not purport to provide a comprehensive statement of the classical theory, but merely offer an introductory mini-primer, with references to more comprehensive literature. As we will see, the myths we will discuss beg even the elementary questions. Part III explains how the myths are incorrect—or, more precisely, beg the questions in controversy. In the conclusion, we invite genuine engagement with the classical legal tradition.

Following are lightly edited remarks delivered at a panel on “Unwritten Law,” held at the annual meeting of the Association of American Law Schools on January 6, 2022. These informal remarks are of course not intended to be rigorous or comprehensive, merely suggestive. Many thanks to organizer Robert Leider and fellow panelists Jeremy Waldron, Steve Sachs and Ashraf Ahmed for their thoughts and contributions.

The way that Americans understand their Constitution and wider legal tradition has been dominated in recent decades by two exhausted approaches: the originalism of conservatives and the "living constitutionalism" of progressives. Is it time to look for an alternative? Adrian Vermeule argues that the alternative has been there, buried in the American legal tradition, all along. He shows that US law was, from the founding, subsumed within the broad framework of the classical legal tradition, which conceives law as "a reasoned ordering to the common good." In this view, law's purpose is to promote the goods a flourishing political community requires: justice, peace, prosperity, and morality. He shows how this legacy has been lost, despite still being implicit within American public law, and convincingly argues for its recovery in the form of "common good constitutionalism." This erudite and brilliantly original book is a vital intervention in America's most significant contemporary legal debate while also being an enduring account of the true nature of law that will resonate for decades with scholars and students.

Professor Nicholas (Nick) Barber’s learned and intelligent book on The Principles of Constitutionalism is best understood as an exercise in Aristotelian naturalism and moral and constitutional realism, of a sort much more characteristic of the classical law than of modern positivism. In view of the book’s implicitly classical approach, it would have benefited, at a number of key junctures, from drawing upon the rich and enduring tradition of the ius commune. Barber often speaks in the register of the classical law, perhaps without knowing it. Doing so more often, and more explicitly, would have improved an already impressive work.

Many presidents have been interested in asserting authority over independent regulatory agencies, such as the Federal Trade Commission, the Federal Communications Commission, the Nuclear Regulatory Commission, the Securities and Exchange Commission, and the Federal Reserve Board. The underlying debates raise large constitutional questions, above all about the meaning and justification of the idea of a “unitary executive.” In the first instance, however, the president’s authority over independent agencies depends not on the Constitution, but on a common statutory phrase, which allows the president to discharge the heads of such agencies for “inefficiency, neglect of duty, or malfeasance in office.” This phrase – the INM standard – is best understood to create a relationship of presidential review — and a particular remedy for legal delinquency flowing from that review. It allows the president to discharge members of independent agencies not only for laziness and torpor (“inefficiency”) or for corruption (“malfeasance”), but also for neglect of their legal duty, which includes egregiously erroneous decisions of policy, law, or fact, either repeatedly or on unusually important matters. Connecting this understanding to the Take Care Clause, we reject both a minimalist approach, which deprives the president of any kind of decisionmaking authority over policy made by independent agencies, and also a maximalist approach, which would treat the independent agencies as essentially identical to executive agencies, in terms of presidential oversight authority. This approach has strong implications for how to understand the President’s directive authority over the independent agencies.

In the theory of the administrative state, a central thread of debate has involved the effect of increasing economic and social complexity on the form of legal instruments. Drawing upon work by Pound, Schmitt and Dworkin, I show that the first two both assumed that the administrative state would increasingly abandon general rules in favor of ad hoc administrative commands — a development that the early Pound welcomed but that Schmitt feared. Ronald Dworkin, by contrast, predicted that the increasing complexity of the modern state would produce ever-greater reliance on relatively abstract legal principles rather than either rules or ad hoc commands. Dworkin’s prediction has largely been borne out in administrative law, particularly the law of judicial review of agency action. That body of law has developed over time by turning to abstract and general principles of rationality and procedural validity to maintain the public edifice of legality.

Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.

Many Americans fear the power of unelected, unaccountable bureaucrats – the deep state. Cass Sunstein and Adrian Vermeule seek to calm those fears by proposing a moral regime to ensure that government rulemakers behave transparently and don’t abuse their authority. The administrative state may be a Leviathan, but it can be a principled one.

Responding to Jeffrey A. Pojanowski, Neoclassical Administrative Law, 133 HARV.L.REV.852 (2020).

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued ‘[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators’. Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the ‘Publius Paradox’, that warrants great attention: under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this ‘Publius Paradox’, I turn briefly to its implications, the main one being that constitutional law should be cast as a loosely‐fitting garment – particularly the executive component of the constitution and the scope of executive powers.

https://youtu.be/lVFc5dnz7Cw

At the Philadelphia convention assembled to draft a new Constitution, Alexander Hamilton argued “[e]stablish a weak government and you must at times overleap the bounds. Rome was obliged to create dictators.” Publius then expands upon this argument in several ways in the Federalist. I suggest that Publius identifies a dynamic or mechanism, the “Publius Paradox,” that warrants great attention: Under particular conditions, excessive weakness of government may become excessive strength. If the bonds of constitutionalism are drawn too tightly, they will be thrown off altogether when circumstances warrant. After illustrating and then analysing this “Publius Paradox,” I will turn briefly to its implications, the main one being that constitutional law should be cast as a loosely-fitting garment — particularly the executive component of the constitution and the scope of executive powers. 2018 Chorley Lecture, London School of Economics. Lecture video: https://onedrive.live.com/?authkey=%21AFgS0YbuvpwXhN4&cid=AF47A00F85EB8C77&id=AF47A00F85EB8C77%215252&parId=AF47A00F85EB8C77%213702&o=OneUp

As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.

The article offers the author's insights on how to engage the liberal empire into Christianity. Topics include the structural hostility of liberalism to the Church and how the Church acts under different political conditions, the association between the Church and politics, and the different options of Christians to engage in politics.

What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.

Adrian Vermeule speaks with First Things assistant editor Connor Grubaugh about three books on constitutionalism from a Catholic perspective.

This chapter demystifies Carl Schmitt by interpreting his main insights through the lens of modern social sciences,. There is a large literature in political science on the political foundations of democracy, constitutionalism, and the rule of law. This literature emphasizes that legal rules, by themselves, cannot create a political equilibrium, which always depends on the expectation of political actors that other actors will contribute to preserving the constitutional regime rather than subverting it. This insight allows us to interpret Schmitt’s distinction between legality and legitimacy more concretely than in extant work. There is also a large literature in law and economics on ex ante rules versus ex post standards. Schmitt’s theory of the exception can be understood as an argument that governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic, or military conditions change rapidly.