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

Abstract

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

Strauss, Peter L., The Challenges of Fitting Principled Modern Government – A Unified Public Law – To an Eighteenth Century Constitution (September 19, 2016). Available at SSRN: https://ssrn.com/abstract=2840973 or http://dx.doi.org/10.2139/ssrn.2840973

Peter L. Strauss (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-2370 (Phone)
212-854-7946 (Fax)

HOME PAGE: http://www.law.columbia.edu/faculty/pstrauss.html

Register to save articles to
your library

Register

Paper statistics

Downloads
86
Abstract Views
471
rank
298,431
PlumX Metrics