Bruce P. Frohnen (Ohio Northern University College of Law) has posted Undermining the Essentials of Self-Government: The Impact of the Administrative State on Constitutional Structure, Legal Virtue, and the Rule of Law on SSRN. Here is the abstract:
This article begins by establishing the textual and historical basis for a common-sensical but surprisingly controversial understanding of the U.S. Constitution, namely, that its fundamental purpose is to enable lasting self-government. The article proceeds to reassess debates among right-of-center legal academics (especially Philip Hamburger and Adrian Vermeule) over the administrative state’s constitutional legitimacy. The purpose is to better understand the administrative state’s effects on the rule of law and, especially, the character traits necessary among the people and those in positions of political power if self-government is to last. The conclusion: violations of the higher law status of the Constitution intrinsic to administrative governance undermine habits of law-abidingness—especially but not only among the rulers—that are essential to both self-government and the rule of law.
Recommended.
The argument has a direct connection to virtue jurisprudence. The habit of law-abidingness that Frohnen takes the administrative state to erode is the Aristotelian virtue of justice as lawfulness—what Aristotle calls general justice in Nicomachean Ethics V.1. For background on virtue jurisprudence, see the Legal Theory Lexicon entry on Virtue Jurisprudence.
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