DOCSLIB.ORG

Statutory Rules of Constitutional Interpretation and the Original Understanding of Judicial Power and Independence

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Statutory Rules of Constitutional Interpretation and the Original Understanding of Judicial Power and Independence NOTES Statutory Rules of Constitutional Interpretation and the Original Understanding of Judicial Power and Independence FRANCIS J. AUL* ABSTRACT In American legal culture today, it is widely acknowledged that the Supreme Court of the United States has the ®nal authority ªto say what the law is.º Whether they agree or disagree with a decision of the Supreme Court, the coordinate branches of the federal government, state govern- ments, and citizens everywhere respect and adhere to those decisions. On the whole, it seems that little stands in the way of the Supreme Court exer- cising its fundamental duty to issue authoritative interpretations of the Constitution using its own independent judgment. Yet this assumption may be ¯awed. This note draws attention to a subtle and underappreciated way in which proposed legislation in Congress, if enacted, would undermine the power and independence of the Supreme Court in interpreting the Constitution. For example, the Constitution Restoration Act of 2005 pur- ported to outlaw the consideration of foreign legal or political materials in the interpretation of the Constitution. This note argues that this kind of proposed statutory rule of constitutional interpretation is unconstitutional for two reasons. First, the federal courts, and in particular the Supreme Court, retain a limited set of inherent powers by their very nature as a court of law that can be traced back to English common law. Among these inherent powers is the power to choose and apply an interpretive methodology in carrying out the judicial function of deciding a case. The Framers would have understood that courts exercised some inherent powers, and the Constitution did nothing to displace those inherent powers. Second, under the original meaning of ªjudicial Powerº in Article III, the federal courts have the authority to choose a particular interpretive methodology and arrive at a de®nitive interpretation of the Constitution without interference from Congress. This authority is not only consistent with the text of Article III, it is also supported by the structural independence of the federal courts under the Constitution as the framing and rati®cation debates make clear. * J.D., Georgetown University Law Center (expected May 2019); B.A., Christendom College. I am very grateful to Dean William Treanor for his helpful comments on an earlier draft of this paper. © 2019, Francis J. Aul. 287 288 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 17:287 TABLE OF CONTENTS INTRODUCTION ............................................ 288 I. INHERENT JUDICIAL POWER AND ARTICLE III COURTS . 290 A. Inherent Judicial Power at English Common Law . 292 B. Inherent Judicial Power and the Framing and Rati®cation of the Constitution................................... 294 C. Inherent Judicial Power to Interpret the Constitution. 296 II. CONSTITUTIONAL INTERPRETATION AND THE STRUCTURAL INDEPENDENCE OF THE FEDERAL COURTS.................... 301 A. First Conceptions of the Need for an Independent Judiciary. 303 B. An Independent Judiciary Is Born ..................... 304 C. Article III and the Supreme Court's Independent Power of Constitutional Interpretation ......................... 308 III. STATUTORY RULES OF CONSTITUTIONAL INTERPRETATION AND THE SUPREME COURT'S INDEPENDENCE......................... 310 CONCLUSION.............................................. 313 INTRODUCTION In Federalist No. 78, Alexander Hamilton argued that ª[t]he interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact ... fundamental law. It therefore belongs to [the courts] to ascertain its mean- ing, as well as the meaning of any particular act proceeding from the legislative body.º1 This fundamental view of the role of the federal judiciary as expositor of constitutional law has largely prevailed and frequently echoes Chief Justice John Marshall's famous declaration in Marbury v. Madison that it is ªemphatically the province and duty of the judicial department to say what the law is.º2 Although the ªjudicial Powerº of Article III is not de®ned, to ascertain the meaning of a law, or to ªsay what the law is,º courts require some basic ªinterpretive toolsº to arrive at an authoritative interpretation.3 Thus, the fundamental role of the federal courts in interpreting law necessarily includes an essential subset of judicial 1. THE FEDERALIST NO. 78, at 577±78 (Alexander Hamilton). 2. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 3. Jennifer M. Bandy, Interpretive Freedom: A Necessary Component of Article III Judging, 61 DUKE L.J. 651, 652 (2011). 2019] JUDICIAL POWER AND STATUTORY RULES OF INTERPRETATION 289 power: the power to apply interpretive tools and methodologies to ascertain the meaning of the Constitution or a legislative act. This may all seem rather uncontroversial to the modern reader. Time and again, federal judges cite Marshall's passage in Marbury for the proposition that it is the quintessential duty of the federal courts to issue authoritative interpreta- tions of provisions of law, and each spring, a signi®cant portion of the population awaits the Supreme Court's pronouncements on important and controversial issues that affect the day-to-day lives of many Americans. It seems that little stands in the way of the Supreme Court exercising its fundamental role in inter- preting and adjudicating cases brought by litigants under federal law or the Constitution. But there are a number of ways in which this apparent interpretive freedom faces existential challenges. In recent years, some scholars have begun to explore the possibility of introducing federal rules of statutory interpretation that would bind federal judges or impose some limits on the ways that federal courts choose to approach interpretive questions.4 Other debates surround the power of Congress to abrogate the stare decisis effect of a Supreme Court decision.5 It is the objective of this paper to draw attention to a subtle and underappreci- ated way in which Congress may seek to limit the interpretive freedom of the fed- eral courts by passing a statute with a seemingly authoritative interpretation of a constitutional provision. This paper argues that no matter how a statute is written, it cannot require the Supreme Court to adhere to a particular method of interpreta- tion or adopt a particular interpretation of a constitutional provision. This conclu- sion follows from a study of the original meaning of the Constitution and, in particular, the meaning of ªjudicial Powerº and judicial independence in Article III. Thus, this paper relies heavily on historical sources from English common law as well as evidence from the framing and rati®cation of the Constitution. Part I will argue that the concept of inherent powers of the federal judiciary prevents other branches from controlling how the federal courts interpret the Constitution. Part II will introduce a related structural theory of judicial independence under Article III that would prohibit any act of Congress from creating a binding rule of 4. See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2156 (2002) (arguing that ªCongress can and should codify rules of statutory interpretationº); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modi®ed Textualism, 119 YALE L.J. 1750, 1856 (2010) (suggesting that an analysis of approaches to statutory construction by state courts of last resort could yield a ªtheoretical compromiseº that would ªenhance coordination and stability in a complex (and for lower courts) overworked legal systemº). 5. Compare, e.g., Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 YALE L.J. 1535, 1538±39 (2000) (arguing that Congress could pass legislation that would remove the precedential effect of Supreme Court decisions and require the Court to consider a given issue on a ªclean slateº); John Harrison, The Power of Congress Over the Rules of Precedent, 50 DUKE L.J. 503, 504 n.7 (2000) (agreeing), with Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. REV. 570, 570±71 (2001) (disagreeing); Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-making, 18 CONST. COMMENT. 191, 191 (2001) (disagreeing). 290 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 17:287 constitutional interpretation. Part III will apply these theories to bills that have been introduced in Congress. I. INHERENT JUDICIAL POWER AND ARTICLE III COURTS Before proceeding, two points of clari®cation are in order. First, this paper is concerned only with statutory limits on constitutional interpretation by federal judges, especially Supreme Court justices. Accordingly, this paper will leave dis- cussion about the merits of federal rules of statutory interpretation to other schol- ars who are steeped in that debate.6 Second, because this paper argues that statutory rules of constitutional interpretation are unconstitutional under the origi- nal public meaning of Article III and the ªjudicial Power,º it applies originalist methods of constitutional interpretation. Originalism is premised on two fundamental concepts: (1) that the ªcommuni- cative content of the constitutional text is ®xed at the time each provision is framed and rati®ed,º and (2) that ªconstitutional practice should be constrained by the communicative content
Load more

Recommended publications
  • Table of Contents
    T a b l e C o n T e n T s I s s u e 9 s u mm e r 2 0 1 3 o f pg 4 pg 18 pg 26 pg 43 Featured articles Pg 4 abraham lincoln and Freedom of the Press A Reappraisal by Harold Holzer Pg 18 interbranch tangling Separating Our Constitutional Powers by Judith s. Kaye Pg 26 rutgers v. Waddington Alexander Hamilton and the Birth Pangs of Judicial Review by David a. Weinstein Pg 43 People v. sanger and the Birth of Family Planning clinics in america by Maria T. Vullo dePartments Pg 2 From the executive director Pg 58 the david a. Garfinkel essay contest Pg 59 a look Back...and Forward Pg 66 society Officers and trustees Pg 66 society membership Pg 70 Become a member Back inside cover Hon. theodore t. Jones, Jr. In Memoriam Judicial Notice l 1 From the executive director udicial Notice is moving forward! We have a newly expanded board of editors Dearwho volunteer Members their time to solicit and review submissions, work with authors, and develop topics of legal history to explore. The board of editors is composed J of Henry M. Greenberg, Editor-in-Chief, John D. Gordan, III, albert M. rosenblatt, and David a. Weinstein. We are also fortunate to have David l. Goodwin, Assistant Editor, who edits the articles and footnotes with great care and knowledge. our own Michael W. benowitz, my able assistant, coordinates the layout and, most importantly, searches far and wide to find interesting and often little-known images that greatly compliment and enhance the articles.
    [Show full text]
  • The Other Madison Problem
    THE OTHER MADISON PROBLEM David S. Schwartz* & John Mikhail** The conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed. Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of the Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. The ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Moreover, virtually all of the actual drafting of the Constitution was done by other delegates, principally James Wilson and Gouverneur Morris. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption.
    [Show full text]
  • Freedom of the Press: Croswell's Case
    Fordham Law Review Volume 33 Issue 3 Article 3 1965 Freedom of the Press: Croswell's Case Morris D. Forkosch Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Morris D. Forkosch, Freedom of the Press: Croswell's Case, 33 Fordham L. Rev. 415 (1965). Available at: https://ir.lawnet.fordham.edu/flr/vol33/iss3/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Freedom of the Press: Croswell's Case Cover Page Footnote The instant study was initiated by Professor Vincent C. Hopkins, S.J., of the Department of History, Fordham University, during 1963. In the spring of 1964 be died, leaving an incomplete draft; completion necessitated research, correction, and re-writing almost entirely, to the point where it became an entirly new paper, and the manuscript was ready for printing when the first olumev of Professor Goebel's, The Law Practice of Alexander Hamilton (1964), appeared. At pages 775-SO6 Goebel gives the background of the Croswell case and, because of many details and references there appearing, the present article has been slimmed down considerably. However, the point of view adopted by Goebel is to give the background so that Hamilton's participation and argument can be understood. The purpose of the present article is to disclose the place occupied by this case (and its participants) in the stream of American libertarian principles, and ezpzdally those legal concepts which prevented freedom of the press from becoming an everyday actuality until the legislatures changed the common law.
    [Show full text]
  • The Constitutional History of New York
    The Constitutional History of New York Charles Z. Lincoln's five-volume The Constitutional History of New York from the Beginning of the Colonial Period to the Year 1905, Showing the Origin, Development, and Judicial Construction of the Constitution remains the authoritative history of the evolution of the State Constitution through the 19th century and the forces that shaped the principles it has embraced. The Historical Society of the Courts of the State of New York has excerpted a number of passages from this compilation which are of particular relevance to the history of the State Courts: • A profile of the author • The Colonial Judiciary • The New York Judiciary, 1777-1845 • The Judiciary Article Under the Third Constitution (1846) • The First Constitution, 1777 • Amendments to the First Constitution - The Convention of 1801 • Woman Suffrage • Woman Suffrage Addendum CHARLES Z. LINCOLN Charles Z. Lincoln was born August 5, 1848, at Grafton, Vermont. An orphan at eight years of age, he resided during his childhood years with various relatives. He was educated in public schools and at Chamberlain Institute, in Randolph, New York. Mr. Lincoln taught school in Cattaraugus and Chautauqua Counties until 1871, when he began the study of law with Joseph R. Jewell, at Little Valley, New York, and with Charles S. Cary, at Olean, New York. He was admitted to the bar in 1874 and thereafter engaged in private practice. He has been President and Attorney of [photograph and biographical Little Valley, a member of the Board of information courtesy of the Education, a State Senator and a Convention Manual of the Sixth New Delegate to the New York Constitutional York State Constitutional Convention Convention of 1894.
    [Show full text]
  • A Guide and Index for Finding Evidence of the Original Meaning of the Us
    98 N.C. L. REV. 779 (2020) A GUIDE AND INDEX FOR FINDING EVIDENCE OF THE ORIGINAL MEANING OF THE U.S. CONSTITUTION IN EARLY STATE CONSTITUTIONS AND DECLARATIONS OF RIGHTS* GREGORY E. MAGGS** When the original thirteen states declared independence from Great Britain, their former colonial charters became obsolete. Eleven states quickly addressed this situation by adopting state constitutions and, in some cases, declarations of rights to replace their charters. These state documents greatly influenced the drafting of the United States Constitution. Accordingly, scholars and judges often cite these early state documents when making claims about the original meaning of the U.S. Constitution. This Article provides a concise guide to this practice of finding evidence of the original meaning in these early state constitutions and declarations of rights. It explains the history of the documents, where to find them online, and how writers have used them to discern the original meaning of the U.S. Constitution. The Article includes a comprehensive index, with more than 1700 entries, to help researchers discover relevant provisions. INTRODUCTION ............................................................................... 780 I. RESEARCHING EARLY STATE CONSTITUTIONS AND DECLARATIONS OF RIGHTS .................................................. 784 * © 2020 Gregory E. Maggs. ** Judge, U.S. Court of Appeals for the Armed Forces (formerly the Arthur Selwyn Miller Research Professor of Law at The George Washington University Law School). The author thanks his very able and diligent research assistants Frank Chang, Abby Feltner, and Sarah Brown, and Janese Duley for reviewing the manuscript and devoting countless hours to the index. This Article is the seventh in a series of articles I have written about how to use different sources to make claims about the original meaning of the Constitution.
    [Show full text]
  • The Council of Revision and the Limits of Judicial Power James T
    COMMENTS The Council of Revision and the Limits of Judicial Power James T. Barry IIIt The limits of judicial power and the proper role of the judici- ary in the Constitutional scheme have always been matters of great controversy. Recent manifestations of this controversy include the debate over the scope of the Fourteenth Amendment, the breadth of standing requirements, the inclusion of judges on the Federal Sentencing Commission, and the role of the judiciary in appointing independent counsels to investigate executive branch officials. Al- though these issues are usually discussed on more abstract grounds, the historical background of the Constitution often creeps into the debate. In this context, one event often mentioned is the Framers' de- bate over and rejection of a Council of Revision at the Constitu- tional Convention of 1787. The proposed Council would have vested the federal veto power in an institution composed of the President and several members of the federal judiciary, presuma- bly the Justices of the Supreme Court. The history of this proposal illustrates how the Framers, faced with a model of judicial involve- ment in the lawmaking process, chose instead a judiciary that took no part in the creation of laws. In so doing, the Framers effectively chose to preclude the courts from deciding matters of public policy and to create a special place for the courts in the separation of powers scheme. Though the history of the proposed Council is relevant to many issues that perennially confront the courts, scholars have given that history remarkably little attention. This comment seeks to remedy that lack of scholarship by examining the history of the t B.S.F.S., Georgetown University, 1986; J.D.
    [Show full text]
  • CHAPTER IV. the Second Constitution, 1821
    CHAPTER IV. The Second Constitution, 1821. The evolution of our Constitution has brought it to a condition where amendments are comparatively easy. The rule requiring a vote by the people once every twenty years, or oftener, as the legislature may provide, to de­ termine whether a convention shall be called to revise the Constitution, affords frequent opportunities for con­ sidering the Constitution as a whole; while, by another provision, the legislature may, at any time, submit to the people specific propositions for amendment, without con­ sidering the whole instrument. This provision furnishes an easy method of altering the Constitution to meet new conditions; indeed, the method is rather too easy, for it affords opportunity for frequent attempted changes in the fundamental law; and if the Constitution, for any reason, happens to be unsatisfactory to a given class of people, and they find that they cannot do all that they think they wish to do, under the existing Constitution, they immediately seek to amend it, as if it were a statute, not possessing permanent character. The ease with which we may now propose amendments is in marked contrast to the difficulties surrounding the subject of constitutional changes during the first forty-five years of our history. It has already been noted that the first Constitution contained no provision for its own amendment. The legislature could not, as it may now do, submit to the people propositions for specific amendments, nor could [613] Digitized by the New York State Library from the Library's collections. 6i4 Constitutional History of New York. it direct that a convention be held to consider amend­ ments, or a general revision.
    [Show full text]
  • The Federalist Papers: Federalist No. 69 from the New York Packet Friday, March 14, 1788
    Primary Sources Selected by Daniel Sargent, UC Berkeley Assistant Professor of History TEACHING DEMOCRACY WEBINAR SERIES The Power of the Presidency, April 25, 2012 The Federalist Papers: Federalist No. 69 From the New York Packet Friday, March 14, 1788. Author: Alexander Hamilton To the People of the State of New York: I PROCEED now to trace the real characters of the proposed Executive, as they are marked out in the plan of the convention. This will serve to place in a strong light the unfairness of the representations which have been made in regard to it. The first thing which strikes our attention is, that the executive authority, with few exceptions, is to be vested in a single magistrate. This will scarcely, however, be considered as a point upon which any comparison can be grounded; for if, in this particular, there be a resemblance to the king of Great Britain, there is not less a resemblance to the Grand Seignior, to the khan of Tartary, to the Man of the Seven Mountains, or to the governor of New York. That magistrate is to be elected for FOUR years; and is to be re-eligible as often as the people of the United States shall think him worthy of their confidence. In these circumstances there is a total dissimilitude between HIM and a king of Great Britain, who is an HEREDITARY monarch, possessing the crown as a patrimony descendible to his heirs forever; but there is a close analogy between HIM and a governor of New York, who is elected for THREE years, and is re-eligible without limitation or intermission.
    [Show full text]
  • Commentaries on Chancellor Kent
    Chicago-Kent Law Review Volume 74 Issue 1 Symposium on Commemorating the Two Hundredth Anniversary of Chancellor Article 3 Kent's Ascension to the Bench December 1998 Commentaries on Chancellor Kent Judith S. Kaye Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview Part of the Law Commons Recommended Citation Judith S. Kaye, Commentaries on Chancellor Kent, 74 Chi.-Kent L. Rev. 11 (1998). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol74/iss1/3 This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. COMMENTARIES ON CHANCELLOR KENT JUDITH S. KAYE* INTRODUCTION It is my distinct pleasure to be a part of this symposium on Chan- cellor James Kent, whose name stands securely alongside the giants of the law.' At this school, which bears his name, you understandably feel a special connection to Chancellor Kent. As Chief Judge of the Court of Appeals of the State of New York-our state's highest court-I too feel a special connection to him. Chancellor Kent's por- trait hangs directly over my shoulder as I sit on the bench of our magnificent courtroom in Albany.2 Every day during the Court's ses- sions, he looks out on attorneys presenting issues that were unimag- inable 200 years ago when he took the bench, yet he unquestionably contributed greatly to their resolution.
    [Show full text]
  • The Constitutional Imbalance
    Volume 37 Issue 1 Winter Winter 2007 The Constitutional Imbalance Richard Albert Recommended Citation Richard Albert, The Constitutional Imbalance, 37 N.M. L. Rev. 1 (2007). Available at: https://digitalrepository.unm.edu/nmlr/vol37/iss1/3 This Article is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr THE CONSTITUTIONAL IMBALANCE RICHARD ALBERT* I. INTRODUCTION The modem American judiciary bears little resemblance to the institution created by the Founding Fathers at the Constitutional Convention of 1787. Alexander Hamilton-a leading spokesperson for the Federalist forces that emerged victorious from the founding debates-famously predicted that thejudiciary would be the least dangerous of the three branches of government. We know now that Hamilton and the Federalists were wrong on this forecast. We also know that the Anti-Federalists were right. Indeed, the Anti-Federalists-an influential group of American founding statesmen who withheld their assent from the Constitution for various reasons - correctly presaged the future path of the American judiciary. Contemporary thinkers have echoed the cautionary words of the Anti-Federalists, arguing that the modern American judiciary has upset the constitutional balance that sustains the American project of democracy. According to one scholar, the judiciary has freely inserted itself into the political thicket, eroding the political question doctrine that once ensured that the voice of the people would be heard.2 According to another scholar, the judiciary has mooted popular discourse on important issues of conscience before those deliberations have even begun to bud.3 Still another argues that the judiciary has commandeered public institutions to substitute the people's judgment with its own.4 These and other increasingly frequent detours * J.D., B.A., Yale University.
    [Show full text]
  • Imagining a Constitutional World of Legislative Supremacy
    WHAT IF MADISON HAD WON? IMAGINING A CONSTITUTIONAL WORLD OF LEGISLATIVE SUPREMACY ALISON L. LACROIX* INTRODUCTION In the summer of 1787, when the delegates to the Constitutional Convention gathered in Philadelphia, one of the most formidable hurdles they faced was building a functional federal government that contained more than one sovereign. Throughout much of the colonial period, British North American political thinkers had challenged the orthodox metropolitan insistence on unitary sovereignty vested in Parliament, and the accompanying metropolitan aversion to any constitutional system that appeared to create an imperium in imperio, or a sovereign within a sovereign.1 By the 1780s, despite much disagreement among the members of the founding generation as to the precise balance between sovereigns, both political theory and lived experience had convinced Americans that their system could, and indeed must, not just accommodate but also depend upon multiple levels of government.2 Identifying the proper degree of federal supremacy and the best means of building it into the constitutional structure were thus central concerns for many members of the founding generation.3 Their real project was an institutional one: whether—which soon became how—to replace the highly decentralized, legislature-centered structure of the Articles of Confederation with a more robust, multi-branch general government to serve as the constitutional hub connecting the state spokes. In preparing for the convention, Virginia delegate James Madison, who was at the
    [Show full text]
  • Separation of Powers Or Separation of Personnel , 79 Cornell L
    Cornell Law Review Volume 79 Article 1 Issue 5 July 1994 One Person One Office:ep S aration of Powers or Separation of Personnel Steven G. Calabresi Joan L. Larsen Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Steven G. Calabresi and Joan L. Larsen, One Person One Office: Separation of Powers or Separation of Personnel , 79 Cornell L. Rev. 1045 (1994) Available at: http://scholarship.law.cornell.edu/clr/vol79/iss5/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. ONE PERSON, ONE OFFICE: SEPARATION OF POWERS OR SEPARATION OF PERSONNEL? Steven G. Calabres4 and Joan L. Larsent "The accumulation of all powers, legislative, executive, and judici- ary, in the same hands ... whether hereditary, self-appointed, or elec- tive, may justly be pronounced the very definition of tyranny."' TABLE OF CONTENTS INTRODUCTION ................................................. 1047 I. BRITISH AND COLONIAL ANTECEDENTS TO THE INCOMPATIBILITY PRINCIPLE ................................ 1052 A. The British Background ............................... 1053 B. The State Constitutions and the Articles of Confederation ......................................... 1057 C. Summary of the Decisions at the Federal Convention ........................................... 1061 II. THE INCOMPATIBILITY CLAUSE .............................. 1062 A. The Original Meaning and Purpose of the Incompatibility Clause ................................. 1062 1. Text and Context .................................... 1062 2. Public Statements Contemporaneous With Ratification... 1065 3. Private Statements Made Prior to Ratification: The Convention Debates .................................
    [Show full text]