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.
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.
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.
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.