History and Fetishism in the New Separation of Powers Formalism
In the last few years, the Supreme Court has embraced a formalist approach to separation of powers law, allegedly justified by the Constitution’s “original meaning.” It is revolutionary, rapidly remaking the constitutional law of administration. But the Court’s engagement with history is selective and idiosyncratic. In particular, it has largely ignored what we know of […]
In the last few years, the Supreme Court has embraced a formalist approach to separation of powers law, allegedly justified by the Constitution’s “original meaning.” It is revolutionary, rapidly remaking the constitutional law of administration. But the Court’s engagement with history is selective and idiosyncratic. In particular, it has largely ignored what we know of […]
Executive Summary
The article 'History and Fetishism in the New Separation of Powers Formalism' critiques the Supreme Court's recent formalist approach to separation of powers law, which is justified by the Constitution's 'original meaning.' The article argues that the Court's engagement with history is selective and idiosyncratic, leading to a revolutionary but potentially flawed remaking of administrative constitutional law. The analysis highlights the need for a more comprehensive and nuanced historical approach to constitutional interpretation.
Key Points
- ▸ The Supreme Court's formalist approach to separation of powers is based on the Constitution's original meaning.
- ▸ The Court's historical engagement is selective and idiosyncratic.
- ▸ This approach is rapidly remaking the constitutional law of administration.
Merits
Critical Analysis
The article provides a rigorous critique of the Supreme Court's approach, highlighting the need for a more comprehensive historical analysis.
Timely Discussion
The article addresses a current and significant development in constitutional law, making it highly relevant.
Demerits
Lack of Specific Examples
The article could benefit from more specific examples of the Court's selective historical engagement to strengthen its arguments.
Broad Generalizations
Some arguments rely on broad generalizations that could be more nuanced with additional evidence.
Expert Commentary
The article 'History and Fetishism in the New Separation of Powers Formalism' offers a timely and critical analysis of the Supreme Court's recent formalist approach to separation of powers law. The author's argument that the Court's engagement with history is selective and idiosyncratic is compelling and raises important questions about the reliability and validity of the Court's justifications. The article's critique is particularly relevant given the rapid and revolutionary changes in administrative constitutional law. However, the analysis could be strengthened by more specific examples and a more nuanced discussion of the historical context. Overall, the article provides a valuable contribution to the ongoing debate on constitutional interpretation and administrative law, highlighting the need for a more rigorous and comprehensive historical approach.
Recommendations
- ✓ The article should include more specific examples of the Court's selective historical engagement to bolster its arguments.
- ✓ Future research should explore the broader implications of the Court's formalist approach on administrative law and governance.
