Levers of State

Conor Casey on why postliberals focus on the administrative state—its tools, levers and pulleys

A Guest Post by Conor Casey

Conor Casey is assistant professor of law at the University of Liverpool. In June he will take up a post as associate professor of public law and legal theory at the University of Surrey. He has degrees from Trinity College Dublin and Yale Law School.

A central aspect of my friend Professor Vermeule’s work over the years has been sustained critique of a particular mode of thinking about the proper relationship between public law and political power. This mode considers the main purpose of public law to be the prevention, or significant minimization of, the risk that public power will be abused; the priorities of constitutional actors, it says, should flow accordingly. One objection advanced by Vermeule to this way of thinking is that it is afflicted, root and stem, by severe tunnel vision about the existence of a full universe of other political risks apart from the risk of abuse of public power—risks that are exacerbated when a state is hamstrung in its ability to exercise its authority.

Putting one’s energy and emphasis wholly on curbing the risks of state abuses of power can lead to comparative neglect of other abuses that afflict citizens. Market forces and employment exploitation can both give rise to abuses, as can the vagaries of ill-health, poverty and pollution (both moral and environmental) that often cannot be alleviated by individual or familial initiative. Indeed, drawing inspiration from New Deal–era legal thought, Vermeule points out that proponents of what he dubs “precautionary constitutionalism” have a blind spot for how “private” abuses of power are, in fact, simply another manifestation of public abuse of power to reckon with.