Constitutional Systems Theory: A Research Agenda Motivated by Vermeule, The System of the Constitution, and Epstein, Design for Liberty

This review essay considers Adrian Vermeule’s The System of the Constitution and Richard Epstein’s Design for Liberty. Vermeule’s contribution to the study of constitutions applies some essential tenets of systems thinking that are only barely evident in legal analysis and almost nonexistent in political science, and so if the book is widely read in both fields it has the potential to alter the trajectory of constitutional analysis for the better. As (nearly) the opening move, the field remains wide open for future research, and in this essay I offer some suggestions for new avenues. Epstein’s concerns for the fate of individual liberty and an expanding bureaucracy are evaluated in terms of Vermeule’s approach. Ultimately, what may rescue the United States from the over-regulatory fate implied by Epstein’s analysis is something not yet developed in Vermeule’s thesis: a constitutional culture, emerging within the public and defended by it, which draws the line to preserve liberty and innovation. ∗Associate Professor of Political Science at the University of Michigan and author of The Robust Federation: Principles of Design (Cambridge University Press, 2009).