Adrian Vermeule, The Many and the Few: On the American Lex Regia, Rev. Int'l Des Droits de L’Antiquité (forthcoming 2023).
Abstract: 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.