Havasy, Macey, and Richardson on Against Political Theory in Constitutional Interpretation @Maceyjoshua @VandLRev @Harvard_Law @CornellLaw

Christopher Havasy, Harvard Law School; Harvard University, Department of Government, Joshua Macey, University of Chicago Law School, and Brian Richardson, Cornell Law School, are publishing Against Political Theory in Constitutional Interpretation in the Vanderbilt Law Review. Here is the abstract.

Judges and academics have long relied on the work of a small number of Enlightenment political theorists—particularly Locke, Montesquieu, and Blackstone—to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the drafters did not write the Constitution in the image of the philosophy of Montesquieu, Locke, or Blackstone. Instead, they developed a new form of government to meet what they perceived to be the needs of a nascent republic. And third, the Constitution itself departs from the dominant strands of Enlightenment political theory in crucial respects. For example, while some Enlightenment theorists advocated for precisely divided federal powers, the drafters favored a system of procedural checks, not formal separation. Thus, while Enlightenment works can be normatively persuasive or act as a guide to historical meaning, they should be treated as presumptively irrelevant in constitutional interpretation. Unless the party who would invoke an Enlightenment political theorist can produce evidence of consensus or common ground about that theory from an episode of American constitutional debate, the theorist’s prescriptions are no more probative than any other work of normative political theory.

Download the article from SSRN at the link.

Waldron on Non-Normative Principles @JeremyJWaldron

Jeremy Waldron, New York University School of Law, has published Non-Normative Principles. Here is the abstract.

How should we think about legal principles? In analytic jurisprudence, the best-known account of legal principles — Ronald Dworkin’s account — assigns them a normative function in law, albeit not a hard or determinate one. But legal principles sometimes serve a characterizing rather than a normative function: they tell us about the character of a legal system rather than giving us instructions about how to deal with difficult cases. There is a further question whether characterizing principles can nevertheless perform some sort of normative function in legal argument. In the second half of this paper, I consider the operation of constitutional principles, like the rule of law and the separation of powers.

Download the article from SSRN at the link.

Gerber on Law and Catholicism in Colonial Maryland @ONULaw

Scott D. Gerber, Ohio Northern University College of Law, has published Law and Catholicism in Colonial Maryland at 103 Catholic Historical Review 465 (2017). Here is the abstract.

Montesquieu famously concluded in The Spirit of the Laws that each form of government has an animating principle — a set of “human passions that set it in motion” — and that each form can be corrupted if its animating principle is undermined. Maryland is a compelling case study of Montesquieu’s theory: founded in 1632 by Lord Baltimore as a haven for Catholics, a mere two decades later that animating principle was dead. This article explores why. More specifically, the article examines the birth, death, and resurrection of Maryland’s animating principle by identifying with as much precision as possible the impact of the law itself on regime change in colonial Maryland.

Download the article from SSRN at the link.

Merlino on Montesquieu e la scienza giurdica italiana (Montesquieu and Italian Legal Science)

Antonio Merlino, Paris-Lodron-Universitaet Salzburg, has published Montesquieu e la scienza giuridica italiana (Montesquieu and Italian Legal Science) as Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2017-13. Here is the abstract.

Italian Abstract: Secondo Giovanni Tarello, Montesquieu è stato un precursore dell’illuminismo giuridico e il fondatore del principio della teoria della tripartizione dei poteri in esecutivo, legislative e giudiziario. Inoltre, egli avrebbe subordinato quest’ultimo al potere legislativo, definendo il giudice la «bocca della legge», che ripete, meccanicamente, la volontà del legislatore. In questo scritto propongo delle interpretazioni alternative. Secondo altri interpreti italiani, la teoria della separazione dei poteri non deve essere interpretata come una teoria astratta e razionale, avente lo scopo di separare i poteri e di assoggettare i giudici alla parola della legge. Al contrario, Montesquieu avrebbe cercato di limitare il potere pubblico attraverso un modello di sovranità divisa. Seguendo questa chiave di lettura il potere giudiziario in Montesquieu è un contropotere che limita il potere legislativo interpretando lo «spirito» dell’ordinamento giuridico prima che la «lettera» della legge.

English Abstract: According to Giovanni Tarello, Montesquieu was a forerunner of the legal enlightenment. He is believed to have formulated the theory of the tripartition of state powers into executive, legislative, and judicial branches. Moreover, he is supposed to have subordinated the judicial to the legislative power (the judges should therefore be merely the “mouth of the law” and limit themselves to the mechanical application of the legislator’s will). In this paper I will suggest other interpretations. In the view of other Italian scholars, the theory of the separation of powers should not be seen as subjecting the judiciary to the legislative branch. On the contrary, Montesquieu can be understood as having intended to limit public power through the division of sovereignty, whereby judges set boundaries on the wielding of political power by interpreting the spirit rather than merely the letter of the law.

Download the article from SSRN at the link.

The Hong Kong Legal Regime and Montesquieu's Theory of the Separation of Powers

Danny Gittings, University of Hong Kong, College of Humanities and Law, School of Professional and Continuing Education; University of Hong Kong Faculty of Law, has published Conflict Over 'Montesquieu's Doctrine' on Separation of Powers. Here is the abstract.

Many aspects of the classic separation of powers doctrine of a tripartite division between executive, legislature and judiciary, which is commonly attributed to Baron Montesquieu, have been the subject of sustained academic criticism in recent decades.

This article, which is part of the author’s PhD research into separation of powers in Hong Kong, reviews those criticisms as well as the quantitative analysis in this area.

It concludes that, even as criticism of the doctrine has become much sharper among some American scholars, there seem to be signs of a more sympathetic reappraisal in some quarters in the United Kingdom.

Download the article from SSRN at the link.

Notre Ami Montequieu

Kirsten Nussbaumer, Saint Louis University, has published Republican Election Reform and the American Montesquieu. Here is the abstract.

 

At the time of the American founding, discourse about election regulation was shaped by a venerated -- but now long-forgotten -- “republican” (or “whig”) tradition that taught that important election rules ought to be “fixed” in constitutions, not left to mere ordinary law, in order to protect popular sovereignty and limit electoral manipulation for incumbent, factional or partisan advantage. Men speaking on all sides of the debates about the framing and ratification of the U.S. constitution repeatedly invoked Montesquieu as authority for this tradition, and used (their understanding of) his precepts in order to evaluate each elections provision of the proposed constitution for its conformity to the tradition. While some elections provisions were received as sharp departures from the tradition, others were taken to be faithful accommodations of the republican tradition to a new variant of federalism. Over time, the republican electoral tradition evolved from an emphasis on entrenching election rules against change to mere entrenchment of a requirement that election reform be channeled through constitutional processes.

Download the paper from SSRN at the link.

Montesquieu's Spirit of the Laws

Murray Bessette, Morehead State University, has published "Montesquieu on Nature and Law: A Preface to the Understanding of the Spirit of the Laws," as a Western Political Science Association 2010 Annual Meeting Paper. Here is the abstract.

While the title of Montesquieu's greatest oeuvre, The Spirit of the Laws, identifies the subject of the work, it nevertheless remains obscure. Many presume to know what law is. The title, however, will prompt most readers to ask: What is the spirit of the laws? Insofar as the title implies the existence of a relation between spirit and law, it also implies that knowledge of what both spirit and law are is a necessary precursor to understanding it. Montesquieu's choice of title, then, should lead any reader who ponders it to raise three philosophic questions: What is law? What is spirit? And, what is their relation? The reader sensitive to the distinction in which philosophy is said to originate - that between nature and law - sees the question of nature lurking in the others. That nature is a foremost concern of the work is hinted at by Montesquieu's use of the word and its derivatives in the book and chapter headings. Thus, to the three questions above is added a fourth: What is nature? The following essay is an attempt to sketch Montesquieu's answers to these four questions as he presents them in both the preface and the first book of The Spirit of the Laws.

Montesquieu and the Supreme Court

Nelson Lund, George Mason University School of Law, has published "Montesquieu, Judicial Degeneracy, and the United States Supreme Court," as George Mason Law & Economic Research Paper 09-12. Here is the abstract.

This essay, which is aimed primarily but not exclusively at audiences in the field of philosophy, originated in a lecture prepared for a series on "Natural Moral Law and Contemporary Society" at the School of Philosophy of the Catholic University of America. Using the Supreme Court's sodomy and abortion decisions as introductory examples, the essay briefly discusses the roots of judicial hubris in American constitutional law. The essay then looks more deeply into an institutional transformation rooted in Montesquieu's insight that it is both necessary and impossible to de-politicize the judicial function. The politically moderating role performed by judges in Montesquieu's English constitution does not translate easily into the American system of written constitutions with judicial review. The essay argues that the U.S. Supreme Court is not qualified to correct written human law through appeals to higher laws, including the natural moral law, and that this conclusion is consistent with the understanding of law both in our Constitution and in St. Thomas Aquinas' Summa Theologica.

Download the paper from SSRN here.