THE PROVINCE OF THE LAW.

• Author: Rao, Neomi

My topic for tonight's speech is the "province of the law." I aim to mark out the boundaries of this province and to consider what lies within the substance of its soil. The province of the law matters because, as Alexander Hamilton said, "[t]he interpretation of the laws is the proper and peculiar province of the courts." (1) To take the metes and bounds of law's province should reveal something about the judicial province and judicial duty.

My starting point is that law has a province. To make such an assertion is already to stand on one side of many important jurisprudential debates. It assumes that within our constitutional system law has a distinct domain, and that legal interpretation is a distinct enterprise, not to be confused with abstract moral philosophy, economics, or political theory. This separation was once taken for granted, but today it is often supplanted by legal theories that both deny the boundaries of the law and corrupt its substance.

We have followed the fabled "path of the law" (2) further and further away from our constitutional origins. Rather than go any further, we should turn back to the idea that law has a province. It is a place, not a journey.

My lecture proceeds as follows. I begin by explaining the concept of law's province. Thinking about the law as a province suggests not only that law has limits, but also that it has substance, the soil that makes up our legal traditions. The limits of this province and its distinct content shape the judicial duty. I will then turn to exploring these two aspects of the province of the law, its limits and its substance.

First, the boundaries of law's province have come under siege from many different directions--including living constitutionalism and an unbounded administrative state. In response, originalists and textualists have sought to defend law's boundaries. Legal interpretation requires determining the original meaning of the Constitution and what Justice Scalia called the "fair reading" of statutes. (3) Much of the conservative legal movement's efforts have been to rebuild the proper borders around the province of the law. And this has been essential work, to understand the nature of law, to consider the proper role of judges, and to expound the distinct powers vested in the political branches.

Second, the province of the law is more than just its boundaries. The terrain of our law includes the foundational political theory animating the Constitution, not to mention roots resting in the common law and natural law. To interpret and apply our laws correctly, we must unearth and examine our distinctly Anglo-American legal principles and constitutional commitments. The proper and peculiar province of the courts is to interpret the law, staying within law's province and drawing from its rich history and traditions.

For those who believe law has a province, we must focus on the task of understanding what belongs in it. Appreciating our laws with humility and respect for preceding generations will promote, as Lincoln said, "the perpetuation of our political institutions." (4)

This lecture serves as a kind of response against those who would deny the boundaries of law's province, leaving only a wilderness of evolving norms, abstract justice, or something like the common good. It is an affirmative case for the province of the law.

1. LAW'S PROVINCE

   To understand the province of the law and the province of the courts, the best place to start is with the constitution. We are, after all, at an event hosted by the Georgetown center for the constitution and here at the National Archives, just a few feet away from an original copy of our great charter.

   The constitution establishes what counts as law and how it must be enacted. (5) The Constitution also establishes and limits the powers of the three branches of government, powers that, importantly, are vested in particular actors. The legislative power is vested in Congress; the executive power is vested in a single President; and the judicial power is vested in courts. (6)

   Vesting power in a particular actor grants authority that includes a bundle of duties, many of them exclusive to the particular office. (7) This echoes a fundamental principle of property law, namely that when title to land vests, its owner possesses a specific and exclusive bundle of rights that attach to a particular place. As Madison said in explaining the separation of powers, "[t]he interest of the man, must be connected with the constitutional rights of the place." (8)

   My particular concern is with the federal courts, which are vested with the Article III "judicial Power." (9) This includes particular duties and obligations that flow from the original understanding of this power. Chief Justice Marshall, echoing Hamilton, famously said, "[i]t is emphatically the province and duty of the judicial department to say what the law is." (10)

   Understanding what is within the province and duty of the judiciary requires understanding what is within the province of the law. Hamilton and Marshall's reference to "province" indicates a framework for thinking about law and judicial duty. First, law's province has limits and boundaries. Second, our legal province is made up of the peculiar soil and substance of American legal traditions.

   Both the limits of the law and its substance are essential for understanding law's province and therefore the province and duty of the courts.

2. BOUNDARIES OF LAW'S PROVINCE

   Let me next explore what it means for law to have a province, a fixed place with firm boundaries. In our society, the boundaries of law's province are marked out by the Constitution. The Constitution limits the powers of the federal government and establishes what counts as law. One way to appreciate these boundaries is to consider some ways in which they have been eroded. I cannot possibly detail them all in a dinner lecture but let me note just a few.

   The early twentieth century progressives waged the first modern assault on the Constitution's exclusive vesting of government power in specific and distinct actors. Give them credit; they were honest about what they were doing. Woodrow Wilson and others openly stated that the Constitution's protections for individual liberty and rights had to yield to social efficiency and progressive policies geared toward the common good. (11) The progressives maintained that the legislature is too slow, the courts too traditional, and the need for progress too urgent to leave political reform to the constitutional process. (12) Instead, the progressives borrowed from then-popular German social thought in the belief that the collective good required government by experts. (13)

   The Progressive Era ushered in what I will, for the sake of simplicity, call the wilderness theory of law. A wilderness approach promotes an unbounded understanding of government power in pursuit of particular substantive ends. Instead of keeping law within its well-defined province, the progressives tore down the fences that separated the legal enterprise from a free-wheeling social science inquiry.

   It no longer mattered that the Constitution vested limited legislative power in Congress. (14) Executive agencies would now be able to exercise what amounted to the lawmaking power in the name of efficiency. (15) The administrative state allows for the creation of law outside constitutional channels and the imposition of nationwide directives controlling the health, safety, and government-defined moral well-being of the people.

   Many of these agencies combine the exercise of legislative, executive, and judicial functions--effectively making laws, enforcing them, and adjudicating public and private rights. (16) Despite the Constitution's vesting of all executive power in a single President, we have numerous independent agencies, such as the National Labor Relations Board and the Federal Election Commission. (17) Congress may of course create administrative agencies, so long as it acts within its limited and enumerated powers. But nowhere does the Constitution allow for the delegation of legislative power, the comingling of government powers, and execution of the laws...