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01/10/2023

Chad Squitieri on Adrian Vermeule and John Henry Newman
Michael Ramsey

At Law & Liberty, Chad Squitieri (Catholic): Is the Administrative State a "Faithful Development"?  From the introduction:

Throughout his career, Harvard Law Professor Adrian Vermeule has been a vocal defender of the administrative state. He continues that defense in Common Good Constitutionalism. There, he contends that “[a]ny theory of law that does not take account of” the administrative state “is, merely for that reason, grievously defective.” Unsurprisingly, he concludes that his theory of law—Common Good Constitutionalism—successfully accounts for the administrative state, which he describes as “the main locus and vehicle” for translating “the goods of peace, justice, and abundance . . . . into modern forms such as health, safety, a clean environment . . . and economic security.”

Vermeule contrasts his theory of constitutionalism (including its account of the administrative state) with progressive constitutionalism. Both theories seek to develop principles over time. But for Vermeule, progressive constitutionalism goes too far in that it leads to both “genuine” and “corrupt” developments. Vermeule thus acknowledges a need for “an account of which developments are genuine and which are corrupt.” For such an account, he turns to St. John Henry Newman’s Essay on the Development of Christian Doctrine.

In that essay, Newman articulates seven “notes” for distinguishing genuine “developments” from “corruptions.” Vermeule contends that an application of these notes demonstrates that the administrative state is a faithful development of the principles underlying “our law.” But Vermeule’s defense of that position is, respectfully, unconvincing—especially if “our law” includes the Constitution of the United States. The shortcomings in his defense stem in part from his disclaiming any need to “parse through” Newman’s seven notes “individually, because their essential aim and thrust is clear enough.”

In this essay, I offer a closer parsing of Newman’s seven notes of the sort that Vermeule avoids. While there may be ways to defend the administrative state’s constitutional legitimacy, a gesture towards Newman’s seven notes is not one of them. ...

John Henry Newman (1801-1890) was (per Wikipedia) a "controversial" English Anglican-turned-Catholic theologian about whom I had not given any thought prior to yesterday.  What his views could have to do with the meaning of the U.S. Constitution remains something of a mystery to me, but in any event it's good to get them stated correctly.