Legislative Power

Author:Jeremy Rabkin

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"Legislative power" is a distinctly modern conception which presupposes a modern understanding of "law." In medieval Europe the authority of laws was variously attributed to God, nature, or custom; human authorities "found" or "declared" or enforced the law but were not thought to create it. Consequently, medieval jurists did not distinguish "legislative" from "judicial" powers. Through the end of the sixteenth century, the English Parliament (like its continental counterparts) was primarily regarded as a court, an ultimate court of APPEAL for individuals as well as communities. It was at most an incidental consideration whether Parliament was "representative" because law was not a matter of will but of knowledge.

The modern conception traces the authority of law precisely to the will of the lawmakers. It is this assumption of a pure power to make or unmake the laws that allows for our artificially clear distinction between "legislative" (that is lawmaking) and "judicial" or "executive" (law-applying) powers. In acknowledging law as the creation of particular human wills, the modern view liberates government from encrusted tradition, from folklore and superstition, above all from manipulation by legalistic conjurings. At the same time, however, this view of law opens the chilling prospect of an unlimited coercive power, since the power to create the laws seems, by its very nature, superior to the constraints of law. This sort of reasoning, powerfully advanced by theorists of SOVEREIGNTY in the seventeenth century, was treated by WILLIAM BLACKSTONE in the next century as virtually self-evident: for any court to declare invalid an act of Parliament, he observed, "were to set the judicial power above that of the legislature, which would be subversive of all government."

The Framers of the American Constitution were nonetheless intent on curbing legislative power. Historians have noted that by the standards of their European contemporaries the constitutional perspective of the American Framers was somewhat archaic, most notably in the Framers' acceptance of a HIGHER LAW limitation on legislative power and in their indifference to questions about sovereignty or ultimate authority. But in the decisive respect,

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the concerns and accomplishments of the Framers reflected their quite modern recognition that no laws are simply given, that the scope of legislative assertion is vast and, as THE FEDERALIST...

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