Vanishing Point: In Search of Our Constitutional Future, Edwin C. Hagenstein, RealClear Publishing, 2025, pp. xxv + 144, $16.00 softcover.
In this concise, accessible book, Edwin Hagenstein does an admirable job laying out the sources of today’s conflicted “constitutional moment” and setting forth competing visions that may shape our future. Our current “moment” is akin to those occurring with the Civil War and in the fight over Franklin Roosevelt’s New Deal establishment of a vigorous welfare and administrative state. As in those times, today the rule of law seems endangered by fundamental disagreements concerning what our Constitution is, what it demands, and what it allows our federal government to do in addressing economic, social, and political crises. The question is whether we can avoid the open violence of the Civil War while re-establishing a working constitutional consensus sufficient to maintain freedom and order.
In his introduction, Hagenstein characterizes our current discontent. Facing increasing foreign and domestic challenges, regulatory agencies, activist courts, and a presidency increasingly reliant on executive orders have concentrated power in ways millions of Americans find unacceptable and the Constitution, over time, cannot support and survive. The myriad failures of this increasingly chaotic system have produced rampant political polarization, characterized by increasing violence and a loss of trust in government, the press, and our self-defined expert class. The question, then, is how we are to re-establish a coherent, consistent constitutional order and, with it, public confidence sufficient for self-government.
Any solution must begin with a renewal of mutual understanding. Currently, Americans are separated by widely divergent visions of the nature and purposes of our political order and of the Constitution designed to give it structure. Hagenstein seeks to bridge the gap by explaining the grounds of current debates in historical and philosophical context.
From its beginning, Hagenstein argues, America has had a classical liberal constitutional order. This order rests on “metaphysical modesty,” rejecting adherence to any vision of a pre-ordained, divine nature (what most conservatives term “natural law”). Our liberal system is characterized by a strong defense of individual rights and reliance on the people to govern themselves. The constitutional structure is one of limited government, leaving room for economic and social institutions to organize private life.
Liberal constitutionalism’s stability relies in part on remnants of the conservative belief in a pre-existing social order. But, in Hagenstein’s view, conservatism never dominated in America. Instead, American constitutional development has been shaped by the inevitable problems of balancing individual freedom and social stability in a complex, dynamic polity. Unfortunately, statist responses to swift economic growth, industrialization, and immigration brought formation of an administrative and welfare state inconsistent with liberal constitutional norms.
Where does this leave us? According to Hagenstein three constitutional visions—classical liberal, progressive, and conservative—are competing for influence and pushing us toward constitutional breakdown, in large part because too few Americans understand them or their goals. To explain the conflict and our choices he provides penetrating analyses of three key figures, each an influential legal academic representing one of the three positions. These are the classical liberal Richard Epstein, the progressive Cass Sunstein, and Adrian Vermeule, identified as a conservative and clearly a religious figure.
Hagenstein’s heart and mind clearly are with Epstein’s classical liberalism. Based in social contract theory, liberal constitutionalism focuses on the individual person whose consent is seen as the source of political legitimacy. Individuals are to be protected in their rights, especially to property. Beyond this role, the government is to be strictly limited by a constitution with clear rules, applied as its drafters intended. This means upholding the separation of powers and, more controversially, seeing in the 14th Amendment a guarantee of “substantive due process” that prioritizes individual rights over federalism.
Most relevant to Hagenstein’s concern with our constitutional moment: according to Epstein, America made the wrong choice in dealing with industrialization by abandoning “laissez-faire constitutionalism” in favor of progressivism. The result was a “massive increase in the frequency and complexity of the legal rules that govern society.” This, according to Epstein, occurred despite the fact that increasing social complexity must be met with simpler, clearer rules the people can understand and follow.
Progressive Cass Sunstein rejects liberal rights language, insisting that property rights and free markets are creatures of positive law to be regulated as experts think best. This means that, for Sunstein, the Constitution should not be read as its drafters intended but in a way that empowers the federal government to rearrange society to serve the people’s needs. Sunstein includes the market of ideas among objects subject to expert control. “Misinformation” and “hate speech” should be dealt with to support decision making that is properly informed, and therefore properly understood as democratic.
Hagenstein seeks to be even-handed, even friendly to all his subjects. He largely succeeds in this. Still, he notes what Sunstein himself recognizes—that his intricate schemes of subsidies and disincentives aimed at “nudging” people to make better choices in everything from diet to energy to healthcare will seem both manipulative and insidious to many people. The “nudging” regulatory state would be pervasive and beyond legislative control. Thus, Sunstein’s progressivism demands a new constitution, designed by and for experts who will stand in judgment of our constitutional, political, and social structures’ rationality, egalitarianism, and social justice.
Finally, Hagenstein turns to the overtly religious legal scholar Adrian Vermeule. He recognizes Vermeule’s affinity with Sunstein (the two have written books together). Still, he chooses to present Vermeule as representative of the conservative vision on account of his “classical” natural law reading of constitutionalism.
Vermeule appeals to a pre-ordained natural order he believes tells us what is just and gives experts the means to determine what is required for the common good. His vision is rooted in a continental European view of civil law and the necessity for a sovereign power in all societies that is superior to any written law. For Vermeule, the question is less what the constitution allows than what justice requires. He rejects constitutional originalism and embraces the administrative state on the grounds that they serve the public good. In his view, the common good can be achieved only by a powerful sovereign capable of addressing environmental, public health, and other issues, unbound by constitutional limitations. Hagenstein, in a deft and enlightening summary, points out the danger to this model posed by recent Supreme Court decisions limiting the amount of deference courts pay to administrative agencies’ interpretations and decisions.
It is possible that a figure such as Columbia University’s Philip Hamburger or Northwestern’s Stephen Presser would better serve as a conservative exemplar. Each upholds a broadly natural law vision along with constitutional originalism and limited government inconsistent with Vermeule’s statism and rejection of American traditions of self-government. That said, Hagenstein accurately presents Vermeule as a currently influential interpreter of constitutionalism—one who sees constitutionalism itself as a process of elite consensus building properly rooted in a religious vision of social order.
In his conclusion, Hagenstein puts the issue just right: whatever one’s viewpoint, our Constitution has been changed dramatically. Epstein sees this as an unnecessary tragedy, Sunstein as a good thing in empowering elites to make us live more rationally, and Vermeule as inevitable and helpful in empowering elites to seek the natural common good.
Are there grounds for compromise or for a clear victory for one of these constitutional visions? With admirable modesty, Hagenstein eschews easy answers. Instead, he looks to legal historian Harold J. Berman, who emphasized the need to address our loss of faith as a people. According to Hagenstein, this faith points toward a liberal constitutional order that emphasizes individual rights and their placement within an overall political understanding of human commonality. No longer a common moral vision, but a more limited understanding of the inevitable tensions between liberty and order is needed so that Americans may keep them in balance.
Bruce P. Frohnen is Professor of Law, Ohio Northern University College of Law; b-frohnen@onu.edu. He is, most recently, the author with George W. Carey of Constitutional Morality and the Rise of Quasi-Law (Harvard University Press, 2016). Frohnen last appeared in AQ in summer 2025 with “Law Schools and the Impoverished View of Free Speech,” a review essay on Jonathan Turley’s The Indispensable Right: Free Speech in an Age of Rage (2024) and Ilya Shapiro’s Lawless: The Miseducation of America’s Elites (2025).
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