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Abstract

The purpose of this article is to perform an act of midwifery. I will begin by considering and summarizing the view, argued by Adrian Vermeule and Eric Posner, that our system of government has loosed the bonds of Madisonian design and now exists and operates as a postliberal largely post-republican executive administrative state. I will briefly highlight the philosophic features and legal doctrines which define this new regime. I will then turn to a challenge issued by these same legal scholars: if this view—regardless of being good or bad—is the true and unalterable reality of our government, then how does a legal thinker or political theorist properly act as a midwife to this burgeoning constitutional administrative order? What would a scholarship unconcerned with the classical constitutional mandates entail? I will posit first that our culture lacks the aesthetic vocabulary needed for this kind of work. I will then posit that the law and literature movement—in considering the roles of rhetoric and aesthetic preferences in justifying and ultimately explaining legal regimes—provides the best path forward for aspiring administrative midwives. I will conclude with a demonstration of midwifery by offering an interpretation of Shakespeare’s play, Measure for Measure, which approaches the play from the vantage point of a literary critic saturated in the dictates of a post-Madisonian regime.

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