Showing papers by "Keith E. Whittington published in 2017"

The Nondelegation Doctrine: Alive and Well

Abstract: The nondelegation doctrine is dead It is difficult to think of a more frequently repeated or widely accepted legal conclusion For generations, scholars have maintained that the doctrine was cast aside by the New Deal Court and is now nothing more than a historical curiosity In this Article, we argue that the conventional wisdom is mistaken in an important respect Drawing on an original dataset of more than one thousand nondelegation challenges, we find that, although the doctrine has disappeared at the federal level, it has thrived at the state level In fact, in the decades since the New Deal, state courts have grown more willing to invoke the nondelegation doctrine Despite the countless declarations of its demise, the nondelegation doctrine is, in a meaningful sense, alive and well

A Man for All Seasons: Historical Memory and John Marshall

Abstract: The heroes of American politics are often represented as timeless figures, sometimes literally carved in stone. A growing literature on collective memory, however, has emphasized the ways in which historical reputations are socially constructed—and reconstructed—over time. This article considers Chief Justice John Marshall as a case study in this dynamic process of constructing historical reputation. Marshall stands above all others as “the great chief justice,” but nonetheless his reputation has not always been secure. Surveying both citations to Marshall’s key opinions and popular and scholarly discussions of the chief justice himself across time, the article shows how Marshall’s reputation has been remade over time to fit the political needs of the moment. Marshall’s durability as a historical figure has turned not on a single set of particularly timeless accomplishments but on the diversity of his contributions to the constitutional canon.

Partisanship, Norms, and Federal Judicial Appointments

Abstract: The politics of federal judicial appointments is as heated and as high-profile now as it has ever been in American history. For an important segment of both political parties, the federal courts have become a critical policymaking institution, and as a result both parties have been pushed to treat judicial appointments as an important political battleground. It is worth pausing to assess descriptively just how difficult it has become to place judges on the federal bench in the current age of party polarization and how the White House and the Senate have responded to the gridlock and sought to ease the possibility of judicial appointments on a simple majority basis. In an era of heightened ideological conflict, partisans might be tempted to go further and take extraordinary measures to construct a politically pliable judiciary, a risky step in a climate of close partisan competition.

The Myth of the Nondelegation Doctrine

Abstract: For much of the nineteenth and early twentieth century, the nondelegation doctrine served as a robust check on governmental expansion. Then, during the New Deal revolution, the Supreme Court reined in the doctrine, thereby paving the way for the rise of the modern administrative state. This story is one we all know well. It is taught in every constitutional law class and has been endorsed by constitutional law scholars since the 1930s. In this Article, we are the first to challenge this narrative.Our investigation draws upon an original dataset we compiled that includes every federal and state nondelegation challenge before 1940 — more than two thousand cases in total. In reviewing these judicial decisions, we find that the nondelegation doctrine never actually constrained expansive delegations of power. Ultimately, our analysis reveals that the traditional narrative behind the nondelegation doctrine is nothing more than a myth.