The Challenges of Fitting Principled Modern Government – A Unified Public Law – To an Eighteenth Century Constitution
17 Pages Posted: 21 Sep 2016 Last revised: 4 Jun 2018
Date Written: September 19, 2016
The papers presented at a fall 2016 conference at Cambridge University, The Unity of Public Law?, generally addressed issues of judicial review in the UK, Canada, Australia and New Zealand, often from a comparative perspective and the view that unifying impulses in “public law” arose from the common law. Accepting what Justice Harlan Fisk Stone once characterized as the ideal of “a unified system of judge-made and statute law woven into a seamless whole by [judges],” The Common Law in the United States, 50 Harvard L Rev 4 (1936), this paper considers a variety of issues that have complicated maintaining the unity of public law under our written Constitution: executive discretion; interpretive styles, variations in “due process”; the Constitution’s failure to define our government and resulting variation in its institutions; the resulting difficulty in accommodating “separation of powers”; issues of presidential role; and the place of “deference” in accommodating uniform national administration of law in the face of the geography of our essentially final circuit courts.
Keywords: judicial review, separation of powers, discretion, deference, President, due process, interpretation
Suggested Citation: Suggested Citation