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The Compromising of the Constitution: Early Departures
188 pages, Hardcover
First published September 28, 1976
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May 13, 2021
This was a very pleasant surprise. Rexford Tugwell was an economist who was part of Roosevelt’s “brain trust”. I was anticipating this book to hue more closely to a justification, of sorts, of actions taken during the New Deal. It was nothing like that. Rather, it was a neat exploration of constitutionalism as distinguished against the US Constitution, early departures from plain meaning, and the difficulty the existing amendment process proposes for change that preserves the structure of government as envisioned by the Framers as opposed to piecemeal changes which may disturb the delicate constitutional equilibrium (Madison, Federalist 48 and 49).
Tugwell’s thesis is that the initial language of the Constitution led, by necessity, to changes in meaning by implication (judicial supremacy, for instance) as opposed to what could be reasonably gleaned. Tugwell’s evidence for that is contemporaneous disagreement among political actors at the time, while noting that branches acted up until the point they could and no more (for instance, Marshall claiming in Marbury v Madison the power to interpret laws while essentially providing no remedy to Marbury since the Court’s jurisdiction was fixed by Article III and could not be altered by statute alone, thus avoiding Jefferson’s ire).
The examples Tugwell steps through are informative and interesting. They range from delegation to impeachment to executive privilege.
I am not aware of how well developed interpretative legal theory was at the time this book was written, but Tugwell does confuse interpretation and construction (there is a difference between the semantic meaning of a text and the application of that text to factual circumstances) which appears to underlay the supposed tension he identifies.
Overall, one of my favorite books I have read in the last few years.
Tugwell’s thesis is that the initial language of the Constitution led, by necessity, to changes in meaning by implication (judicial supremacy, for instance) as opposed to what could be reasonably gleaned. Tugwell’s evidence for that is contemporaneous disagreement among political actors at the time, while noting that branches acted up until the point they could and no more (for instance, Marshall claiming in Marbury v Madison the power to interpret laws while essentially providing no remedy to Marbury since the Court’s jurisdiction was fixed by Article III and could not be altered by statute alone, thus avoiding Jefferson’s ire).
The examples Tugwell steps through are informative and interesting. They range from delegation to impeachment to executive privilege.
I am not aware of how well developed interpretative legal theory was at the time this book was written, but Tugwell does confuse interpretation and construction (there is a difference between the semantic meaning of a text and the application of that text to factual circumstances) which appears to underlay the supposed tension he identifies.
Overall, one of my favorite books I have read in the last few years.
Displaying 1 of 1 review