The dim view of Legal Process Theory canonized by prominent scholars in the Critical Legal Studies and Critical Race Theory movements in their attack on liberal legalism are mischaracterizations.
Recovering why Madison believed his proposed “negative” over state laws could translate the unifying force of monarchy into a republican form offers a corrective to flattened understandings of Madisonian nationalism. His famous arguments about faction and minority rights emerged from a broader project focused on reconciling national power, federal union, and popular government.
For claims about constitutional interpretation that hinge on the Constitution’s “original meaning,” it matters whether members of the Philadelphia Convention, or the state ratifying conventions, or the early post-ratification congresses, asserted that the Constitution was a compact of the states; or whether, instead, compact theory was a novelty that gained adherents only much later.
In a crucial moment in the history of the administrative state in 1946, Congress played a central legitimizing role by enacting the Employment Act, the Administrative Procedure Act (APA), and the Legislative Reorganization Act (LRA).
In the first third of the twentieth century, American leaders affiliated with both political parties and the broader Progressive movement restructured the nation’s “legal civic order” to advance a Fitter Families ideal of American citizenship.
Professor Marcus offers a short account of the checkered progress of the Holmes Devise.
I believe that Post addresses concerns about how judges worked the ideas into their opinions by seeing the Justices as proto-philosophers (or proto-legal-academics), who have a deep commitment to developing coherent schemas.
The essential ambition of the Taft Court volume was to invite legal historians to once again conceptualize judges and their courts as cultural actors who respond to the same sets of tensions and challenges as those that spur all cultural actors to give meaning to their times. Tushnet is off base to dismiss this approach as a form of “conceptualism.”
Contemporary disputes involving the separation of powers take on a different light when they are framed in terms of powers of the Government of the United States itself. The “all other powers” provision of the Necessary and Proper Clause distinguishes government powers from executive powers and gives Congress distinct legislative authorities with respect to each of these categories.
For Ken Kersch, developments in twentieth-century American constitutional law could not be adequately explained by either neat doctrinal evolution or the raw exercise of political power.