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September 18, 2018|Common Law, Judicial Power, Original Meaning Originalism, Originalism, Pamela Karlan, Precedent

How Originalism Integrates Precedent, Part I

by John O. McGinnis|

Brian A. Jackson/Shutterstock.com
Unlike the modalities approach, original methods originalism can provide a disciplined framework for interpretation.

May 17, 2018|Due Process, judicial deference, Judicial Power, Originalism, Separation of Powers

Does Administrative Agency Adjudication Violate the Vesting of Judicial Power in the Courts (and Due Process)?

by Mike Rappaport|

Zolinerek/Shutterstock.com
While the government may have discretion to act outside of the courts, its officers often will not, allowing due process to play out in the courts.

August 6, 2015|Construction, intepretation, Jack Balkin, Judicial Power, Judicial Review, Larry Solum, Michael Rappaport, Randy Barnett

The Judicial Power Permits only Interpretation, not Construction

by John O. McGinnis|

The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a  “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic  meaning.  Unclear language, in contrast, creates a construction zone.  Within that zone,  the judge may appeal to materials other than its original meaning in the course of judicial review.

Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land

Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.

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June 12, 2014|Administrative Adjudication, Administrative State, Constitutionalism, Executive Power, Judicial Power, Separation of Powers

Administrative Adjudication: Even Worse than it Looks?

by Joseph Postell|

Like many others at the moment, I am making my way through Philip Hamburger’s Is Administrative Law Unlawful? One of the most shocking chapters is his chapter on America’s “Return to Extralegal Adjudication,” a problem that constitutional law had originally aimed to constrain, but which has re-emerged in the context of the modern administrative state.

I knew that there were problems with administrative adjudication – I just didn’t grasp how pervasive the problems were until Hamburger laid them out so systematically.

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January 21, 2014|

Patrick Garry’s Reply to Responders

by Patrick M. Garry|

I am honored to be a part of this debate on the Bill of Rights with such accomplished and knowledgeable scholars. The three responding essays by Dr. Bowling, Professor Erler and Professor Ramsey provide keen insights on constitutional law and history. Indeed, the historical discussions in the three essays are more detailed than is my lead essay. And for this, I give my highest compliments to the responders. Their discussion demonstrates the vital importance of history in constitutional interpretation. More than just demonstrating the importance of history, however, the responders also reveal the kind of inquiry and perspective needed for an…

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February 25, 2013|Administrative Law, Administrative Procedure Act, Executive Power, Judicial Power

Combining Executive and Judicial Power

by Mike Rappaport|

Michael Greve’s earlier post on Administrative Law has inspired me to write a couple of posts about the subject.

One of the key issues in Administrative Law is that administrative agencies do not conform to the separation of powers.  In a meaningful sense, agencies possess legislative, executive, and judicial power, which makes them a separation of powers monstrosity.

In this post, I will discuss an aspect of this problem: the combining of prosecutorial and adjudicative functions in the agency.

Prosecuting and adjudicating seems like an obvious violation not merely of the separation of powers but also of the rule of law.  It has long been recognized that a man should not be a judge in his own case, and allowing administrative agencies to adjudicate their own prosecutions does exactly that.  As a result, agencies may not faithfully follow the existing law, but instead bias the adjudication towards their own interests.  

The Administrative Procedure Act, passed in 1946 to impose some constraints on agencies, established some checks on an agency’s power to adjudicate its own cases.  In cases involving formal adjudication – those adjudications that are subject to the strongest procedural checks – the agency adjudicator (typically an administrative law judge or ALJ) cannot be supervised by an agency official who prosecutes.  This is a significant check, and is all for the good.

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May 21, 2012|

Can Congress Survive?

by John Marini|

In response to: First Among Equals: Reconsidering Congressional Power in James Burnham’s Congress and the American Tradition

John Samples has revisited an old controversy concerning the fundamental purpose and function of the legislative branch of the American government.  In doing so, he has engaged the arguments of an older generation of conservative defenders of Congress, those who had been troubled by the waning influence of that institution.  Samples looked primarily to James Burnham, whose book, Congress and the American Tradition, published in 1959, raised the question whether Congress as an institution could long survive in the age of executive dominance.  Burnham was not sanguine about the prospects of its survival.  He was persuaded “that the political death…

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More Responses

Congress and the Constitution’s Tradition of Liberty

by Herman Belz

James Burnham was a literary modernist who after an experience with Trotskyite Marxism gained renown for The Managerial Revolution (1941), a study of executive centralization. Alert to the threat of totalitarian rule, Burnham joined intellectual forces with defenders of liberty in the renewal of conservatism after World War II.  His Congress and the American Tradition,…

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February 21, 2012|American Political Development, Judicial Power, Judicial Review, Progressivism

Defining Judicial Power II: American Political Development and Irreversible Change

by James Stoner|

In the first part of this two-part entry, I argued that the original understanding of judicial power—to say what the law is in the context of a dispute between two parties—has been altered in part as a result of legislative changes to the courts’ jurisdiction and their tools to implement their judgments, and that these changes may have induced the courts to view the Constitution and the law in a new way.  Naturally the next step of inquiry might seem to be to ask which changes have been improvements and which have proven problematic.  But in this entry, I want to address a potential obstacle to that inquiry, or at least to its having any practical meaning: the suggestion that institutional change is irreversible.

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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