Separation, Enumeration, and the Implied Bill of Rights

35 Pages Posted: 23 Sep 2020

See all articles by Laurence Claus

Laurence Claus

University of San Diego School of Law

Date Written: August 20, 2020

Abstract

The United States Constitution sets forth two strategies for distributing power within the system of government that it establishes. To distribute power horizontally within the national government, the Constitution seeks to separate power by kind – legislative, executive, and judicial. To distribute power vertically between the national and state governments, the Constitution seeks to enumerate power by subject.

Neither strategy works. Separation by kind fails because governing actions are not of single kinds. Governing in all three branches necessarily involves both lawmaking and law executing. Enumeration by subject fails because governing actions are not about single subjects. Governing actions can readily be characterized in more than one way, as about more than one subject. Consequently, those who must decide disputes about the distribution of power are obliged to create a law of institutional competence and a law of constitutional characterization with far less guidance from the Constitution than it purports to give them.

How did these two unachievable strategies come to be adopted? What should guide courts in creating a law of institutional competence and a law of constitutional characterization to settle the actual horizontal and vertical distribution of power? Examining these questions illuminates a clearer path for courts to expound the Constitution’s meaning in ways that expand its protections. Deciding the distribution of power lets courts create an implied bill of rights.

Keywords: Implied Bill of Rights, Federalism, Separation of Powers, Enumeration, Constitutional Interpretation, Characterization, Philadelphia Convention, Ratification Debates

Suggested Citation

Claus, Laurence, Separation, Enumeration, and the Implied Bill of Rights (August 20, 2020). Journal of Law and Politics, Forthcoming, San Diego Legal Studies Paper No. 20-470, Available at SSRN: https://ssrn.com/abstract=3678345

Laurence Claus (Contact Author)

University of San Diego School of Law ( email )

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United States
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