Legislative Usurpation: The Early Practice and Constitutional Repudiation of Legislative Intervention in Adjudication

Abstract:     
In the United States, we usually think of separation of powers as easy and obvious. Legislatures make rules of general application; courts decide cases between parties based on existing law; and executives enforce and implement the laws. Sometimes the lines shift or get fuzzy, but the principle was fundamental to the framers of the Constitution and still has the feel and supporting authority of a foundational precept. However, this was not always so. In the pre-constitutional history of the United States, legislatures regularly exercised judicial functions, intervened in adjudication, and interfered with accrued or vested rights. Congress seems poised to test the basic principle once again with a bill that bars the pending city lawsuits and most other litigation against handgun manufacturers and dealers. This short historical essay addresses the early practice of legislative intervention in litigation and its repudiation by the framers of the Constitution.

Number of Pages in PDF File: 6

Keywords: Separation of powers, legislative usurpation, legislative intervention in adjudication, legislative power, gun litigation

Accepted Paper Series