This is an interesting article about the new book, Common Good Constitutionalism. It is support for the living constitution doctrine. The author of the article gets more specific: The book is an attack on originalism, and a proponent of the administrative state (my words, which is predicated the living constitution doctrine.)
The Founders’ Constitution and its discontents – Acton Institute PowerBlog
Vermeule teaches law at Harvard, one of the nation’s most elite universities. He specializes in administrative law—a Progressive Era innovation that some critics contend violates the Constitution’s separation of powers—and constitutional theory. Constitutional “theory” often has even less to do with the Constitution than constitutional “law.” Oddly, for a subject taught in law schools, the field is dominated by moral philosophers, exemplified by John Rawls and Ronald Dworkin. The attraction of constitutional theory, from the legal scholar’s standpoint, is that the canvas is blank, the inquiry is unhindered by text or history, and the only limits are the scholar’s ambition and ingenuity. Vermeule, who holds an endowed chair at Harvard Law School, exudes plenty of both.
Each theorist has his own personal preferences, and Vermeule is no exception. He is an ardent devotee of the administrative state (having co-written a bold defense of it in 2020’s Law & Leviathan) and a recent convert to Catholicism, which coincides with his turn toward what some observers call “integralism,” a movement that “seeks to subordinate temporal power to spiritual power—or, more specifically, the modern state to the Catholic Church.” Vermeule’s embrace of integralism aligns him with so-called post-liberals led by Patrick Deneen on the Catholic right, as well as some quirky proponents of “natural law” jurisprudence. (Deneen enthusiastically blurbed Vermeule’s book.)Read the entire article at the link.Vermeule’s provocative book has attracted a good deal of attention. Common Good Constitutionalism is heralded in some quarters (and denounced in others) as an avant garde critique of “originalism”—the notion, popularized by Justice Antonin Scalia in the 1980s, that judges should interpret the Constitution in accordance with its original public meaning—that is, what the document was understood to mean at the time it was enacted. Instead, Vermeule offers an alternative model of government: Elected officials and bureaucrats should act based on their own sense of what would best promote the common good rather than being constrained by the text of the Constitution. Vermeule defines “common good” as “the flourishing of a well-ordered political community,” with the goal of achieving “peace, justice, and abundance” (which includes “economic security”). This sounds like New Age utopianism, the realization of which requires centralized power and invites the exercise of broad subjective discretion—precisely the opposite of what the Framers intended.
What was the Framers’ design? The Constitution enumerates the limited powers conferred on the national (or federal) government, which are carefully divided among three branches: the legislative (Congress), executive (president), and judicial. The Framers contemplated that dividing the national government into three branches would provide essential checks and balances to prevent the accumulation and abuse of power. Each branch had a defined and complementary role, with Congress making law, the executive enforcing law, and the judiciary interpreting law.
Under our dual system—federalism—states retain all powers not expressly delegated to the national government, as stated in the 10th Amendment. At both the state and federal levels, most important policy decisions are made by the politically accountable legislative branch. “We the people” can, in this fashion, exercise the necessary “consent of the governed” to enjoy representative self-government while maintaining our precious liberty.
The Founders’ Constitution has a fixed meaning that can be changed only by formal amendment. Since the New Deal, and especially following the Warren Court judicial revolution of the 1960s, however, radical changes in constitutional law have been wrought by judicial fiat. The locus of power has shifted decisively to the national government, vast authority has been concentrated in an alphabet soup of (unelected) federal administrative agencies that exercise quasi-legislative and quasi-judicial power, and federal courts have assumed a policymaking role far exceeding Alexander Hamilton’s assurance in Federalist 78 that the judiciary “will always be the least dangerous to the political rights of the Constitution.”
This is our modern dilemma