The administrative state redeemed? Vermeule’s plea for more substantive constitutionalism as a recipe for a successful public law of the future

From its inception, the administrative state’s legitimacy has been debated in the U.S. In their book Law and Leviathan. Redeeming the Administrative State (2020), Cass R. Sunstein and Adrian Vermeule attempted to reply to the critics. This rejoinder boils down to the fact that the administrative state is broadly consistent with the principles of the rule of law.
In his Atlantic article, Vermeule went a step further by arguing that public law’s success is not so much at stake because of the administrative state as because of a procedural, technocratic ‘legal liberalism.’ In its place, Vermeule advocates an ‘illiberal legalism.’ The government pursues goals such as peace, justice, abundance, health, and safety, which promote the common good.
One does not have to agree with his plea for a ‘common-good constitutionalism’ to see the similarity with a recent argument by Ran Hirschl that the future of public law depends on its ability to formulate an answer to the significant global problems.