Download This PaperFrom the Spirit of the Federalist Papers to the End of Legitimacy: Reflections on Gundy v. United States
26 Pages Posted: 4 Feb 2020 Last revised: 21 Apr 2020
Date Written: February 27, 2020
Abstract
The revival of the non-delegation doctrine, foreshadowed last term in Gundy v. United States, signals the end of a distinctive style of legal and political thought. The doctrine’s apparent demise after the 1930s facilitated the development of a methodological approach that embodied what Lon Fuller once called “the spirit of the Federalist Papers”: an open-ended engagement with the problem of designing democracy and controlling public power. At its best, this discourse was critical and propulsive, with each purported solution generating more questions than it answered. The turn against congressional delegations will likely bring to a close this period of open and self-critical experimentation. In its place, we are likely to see the emergence of warring visions of the administrative state, each claiming legitimacy — neither credibly — according to its own comprehensive normative doctrine.
Keywords: Administrative Law, Non-delegation Doctrine, Legitimacy, Political Theory, Legal Theory, Lon Fuller
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