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The Constitution of Risk is the first book to combine
constitutional theory with the theory of risk regulation. The book
argues that constitutional rulemaking is best understood as a means
of managing political risks. Constitutional law structures and
regulates the risks that arise in and from political life, such as
an executive coup or military putsch, political abuse of
ideological or ethnic minorities, or corrupt self-dealing by
officials. The book claims that the best way to manage political
risks is an approach it calls optimizing constitutionalism in
contrast to the worst-case thinking that underpins precautionary
constitutionalism, a mainstay of liberal constitutional theory.
Drawing on a broad range of disciplines such as decision theory,
game theory, welfare economics, political science, and psychology,
this book advocates constitutional rulemaking undertaken in a
spirit of welfare maximization, and offers a corrective to the
pervasive and frequently irrational attitude of distrust of
official power that is so prominent in American constitutional
history and discourse."
Winner of the 2021 Scribes Book Award From two legal luminaries, a
highly original framework for restoring confidence in a government
bureaucracy increasingly derided as âthe deep state.â Is the
modern administrative state illegitimate? Unconstitutional?
Unaccountable? Dangerous? Intolerable? American public law has long
been riven by a persistent, serious conflict, a kind of low-grade
cold war, over these questions. Cass Sunstein and Adrian Vermeule
argue that the administrative state can be redeemed, as long as
public officials are constrained by what they call the morality of
administrative law. Law and Leviathan elaborates a number of
principles that underlie this moral regime. Officials who respect
that morality never fail to make rules in the first place. They
ensure transparency, so that people are made aware of the rules
with which they must comply. They never abuse retroactivity, so
that people can rely on current rules, which are not under constant
threat of change. They make rules that are understandable and avoid
issuing rules that contradict each other. These principles may seem
simple, but they have a great deal of power. Already, without
explicit enunciation, they limit the activities of administrative
agencies every day. But we can aspire for better. In more robust
form, these principles could address many of the concerns that have
critics of the administrative state mourning what they see as the
demise of the rule of law. The bureaucratic Leviathan may be an
inescapable reality of complex modern democracies, but Sunstein and
Vermeule show how we can at last make peace between those who
accept its necessity and those who yearn for its downfall.
A constitutional order is a system of systems. It is an aggregate
of interacting institutions, which are themselves aggregates of
interacting individuals. In The System of the Constitution, Adrian
Vermeule analyzes constitutionalism through the lens of systems
theory, originally developed in biology, computer science,
political science and other disciplines. Systems theory illuminates
both the structural constitution and constitutional judging, and
reveals that standard views and claims about constitutional theory
commit fallacies of aggregation and are thus invalid. By contrast,
Vermeule explains and illustrates an approach to constitutionalism
that considers the systemic interactions of legal and political
institutions and of the individuals who act within them.
Winner of the Scribes Book Award "As brilliantly imaginative as it
is urgently timely." -Richard H. Fallon, Jr., Harvard Law School
"At no time more than the present, a defense of expertise-based
governance and administration is sorely needed, and this book
provides it with gusto." -Frederick Schauer, author of The Proof A
highly original framework for restoring confidence in a government
bureaucracy increasingly derided as "the deep state." Is the modern
administrative state illegitimate? Unconstitutional? Unaccountable?
Dangerous? America has long been divided over these questions, but
the debate has recently taken on more urgency and spilled into the
streets. Cass Sunstein and Adrian Vermeule argue that the
administrative state can be redeemed so long as public officials
are constrained by morality and guided by stable rules. Officials
should make clear rules, ensure transparency, and never abuse
retroactivity, so that current guidelines are not under constant
threat of change. They should make rules that are understandable
and avoid issuing contradictory ones. These principles may seem
simple, but they have a great deal of power. Already, they limit
the activities of administrative agencies every day. In more robust
form, they could address some of the concerns of critics who decry
the "deep state" and yearn for its downfall. "Has something to
offer both critics and supporters...a valuable contribution to the
ongoing debate over the constitutionality of the modern state."
-Review of Politics "The authors freely admit that the
administrative state is not perfect. But, they contend, it is far
better than its critics allow." -Wall Street Journal
In Terror in the Balance, Posner and Vermeule take on civil
libertarians of both the left and the right, arguing that the
government should be given wide latitude to adjust policy and
liberties in the times of emergency. They emphasize the virtues of
unilateral executive actions and argue for making extensive powers
available to the executive as warranted. The judiciary should
neither second-guess security policy nor interfere on
constitutional grounds. In order to protect citizens, government
can and should use any legal instrument that is warranted under
ordinary cost-benefit analysis. The value gained from the increase
in security will exceed the losses from the decrease in liberty. At
a time when the 'struggle against violent extremism' dominates the
United States' agenda, this important and controversial work will
spark discussion in the classroom and intellectual press alike.
How should judges, in America and elsewhere, interpret statutes and
the Constitution? Previous work on these fundamental questions has
typically started from abstract views about the nature of democracy
or constitutionalism, or the nature of legal language, or the
essence of the rule of law. From these conceptual premises,
theorists typically deduce an ambitious role for judges,
particularly in striking down statutes on constitutional grounds.
In this book, Adrian Vermeule breaks new ground by rejecting both
the conceptual approach and the judge-centered conclusions of older
theorists. Vermeule shows that any approach to legal interpretation
rests on institutional and empirical premises about the capacities
of judges and the systemic effects of their rulings. Drawing upon a
range of social science tools from political science, economics,
decision theory, and other disciplines, he argues that legal
interpretation is above all an exercise in decisionmaking under
severe empirical uncertainty. In view of their limited information
and competence, judges should adopt a restrictive, unambitious set
of tools for interpreting statutory and constitutional provisions,
deferring to administrative agencies where statutes are unclear and
deferring to legislatures where constitutional language is unclear
or states general aspirations.
Ronald Dworkin once imagined law as an empire and judges as its
princes. But over time, the arc of law has bent steadily toward
deference to the administrative state. Adrian Vermeule argues that
law has freely abandoned its imperial pretensions, and has done so
for internal legal reasons. In area after area, judges and lawyers,
working out the logical implications of legal principles, have come
to believe that administrators should be granted broad leeway to
set policy, determine facts, interpret ambiguous statutes, and even
define the boundaries of their own jurisdiction. Agencies have
greater democratic legitimacy and technical competence to confront
many issues than lawyers and judges do. And as the questions
confronting the state involving climate change, terrorism, and
biotechnology (to name a few) have become ever more complex, legal
logic increasingly indicates that abnegation is the wisest course
of action. As Law's Abnegation makes clear, the state did not shove
law out of the way. The judiciary voluntarily relegated itself to
the margins of power. The last and greatest triumph of legalism was
to depose itself.
Human reason is limited. What are the consequences of this fact for
the contested lawmaking claims between courts, legislatures and the
executive branch? In light of the limits of reason, how should
legal institutions be designed? In Law and the Limits of Reason,
Adrian Vermeule criticizes the view that the limits of reason
counsel in favor of judicial lawmaking in the style of the common
law. He argues that there is no logical connection between the
limits of reason, on the one hand, and the superiority of common
law or of judge-made constitutional law on the other. The
relatively small number of judges on relevant courts, their limited
informational base and generalist rather than specialized skills,
ensure that judicial reason is itself sharply limited and that the
argument to judicial lawmaking from the limits of reason outruns
the logical, causal, and evidentiary support.
Instead, Adrian Vermeule proposes and defends a "codified
constitution" - a regime in which legislatures have the primary
authority to develop constitutional law over time, through statutes
and constitutional amendments. Precisely because of the limits of
human reason, large modern legislatures, with their numerous
membership, complex internal structures for processing information
and their abundant informational resources, are the most effective
lawmaking institutions. Law and the Limits of Reason, now in
paperback, serves as a thought-provoking companion to any
constitutional law course of study.
The Constitution of Risk is the first book to combine
constitutional theory with the theory of risk regulation. It argues
that constitutional rulemaking is best understood as a means of
managing political risks. Constitutional law structures and
regulates the risks that arise in and from political life, such as
an executive coup or military putsch, political abuse of
ideological or ethnic minorities, or corrupt self-dealing by
officials. The book claims that the best way to manage political
risks is an approach it calls 'optimizing constitutionalism' - in
contrast to the worst-case thinking that underpins 'precautionary
constitutionalism', a mainstay of liberal constitutional theory.
Drawing on a broad range of disciplines such as decision theory,
game theory, welfare economics, political science and psychology,
this book advocates constitutional rulemaking undertaken in a
spirit of welfare maximization, and offers a corrective to the
pervasive and frequently irrational distrust of official power that
is so prominent in American constitutional history and discourse.
Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as
a book title, the term has become central to the debate about the
balance of power in the U.S. government. Since the presidency of
George W. Bush, when advocates of executive power such as Dick
Cheney gained ascendancy, the argument has blazed hotter than ever.
Many argue the Constitution itself is in grave danger. What is to
be done? The answer, according to legal scholars Eric Posner and
Adrian Vermeule, is nothing. In The Executive Unbound, they provide
a bracing challenge to conventional wisdom, arguing that a strong
presidency is inevitable in the modern world. Most scholars, they
note, object to today's level of executive power because it varies
so dramatically from the vision of the framers of the Constitution.
But Posner and Vermeule find fault with James Madison's premises.
Like an ideal market, they write, Madison's separation of powers
has no central director, but it lacks the price system which gives
an economy its structure; there is nothing in checks and balances
that intrinsically generates order or promotes positive
arrangements. In fact, the greater complexity of the modern world
produces a concentration of power, particularly in the White House.
The authors chart the rise of executive authority, noting that
among strong presidents only Nixon has come in for severe
criticism, leading to legislation which was designed to limit the
presidency, yet which failed to do so. Political, cultural and
social restraints, they argue, have been more effective in
preventing dictatorship than any law. The executive-centered state
tends to generate political checks that substitute for the legal
checks of the Madisonian constitution. Piety toward the founders
and a historic fear of tyranny have been powerful forces in
American political thinking. Posner and Vermeule confront them both
in this startlingly original contribution.
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