Which principle of U.S. government is illustrated in the sequence shown above a judicial review B .checks and balances c popular sovereignty D federalism?

Abstract

The Supreme Court applies the structural provisions of the Constitution by relying on an overarching framework of "separation of powers." Its cases reflect two distinct visions of the doctrine. Functionalist decisions presuppose that Congress has plenary authority to compose the government under the Necessary and Proper Clause, subject only to the requirement that a particular governmental scheme maintain a proper overall balance of power. Formalist opinions, in contrast, assume that the constitutional structure adopts a norm of strict separation which may sharply limit presumptive congressional power to structure the government. This Article contends that, to the extent that these theories each rely on a freestanding separation of powers principle derived from the structure of the document as a whole, both contradict the idea that the Constitution is a "bundle of compromises" that interpreters must respect if they are to show fidelity to the constitutionmaking process. The historical record reveals that the founding generation had no single baseline against which to measure what "the separation of powers" would have required in the abstract. The U. S. Constitution, moreover, not only separates the powers of the three branches, but also blends them in order to provide mutual checks among the branches. In so doing, it strikes many different balances and expresses its purposes at many different levels of generality. When a provision carefully specifies which branch will exercise a given power and in what manner, interpreters must respect that specific compromise by prohibiting alternative means of exercising that power. Conversely, when the Constitution speaks indeterminately to a particular question, constitutionmakers should not rely on abstract notions of separation of powers to displace Congress's assigned power to compose the federal government. Rather than invoking any overarching separation of powers theory, interpreters should apply tools of ordinary textual interpretation to construe the particular clauses that make up the constitutional structure.

Journal Information

The Harvard Law Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. Each issue also contains pieces by student editors. Published monthly from November through June, the Review has roughly 2,000 pages per volume. All articles--even those by the most respected authorities--are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone. The November issue contains the Supreme Court Foreword (usually by a prominent constitutional scholar), the faculty Case Comment, twenty-five Case Notes (analyses by third-year students of the most important decisions of the previous Supreme Court Term), and a compilation of Court statistics. The February issue features the annual Developments in the Law project, an in-depth treatment of an important area of the law.

Publisher Information

Founded in 1887 by future Supreme Court Justice Louis D. Brandeis, the Harvard Law Review is an entirely student-edited journal that is formally independent of the Harvard Law School. Approximately ninety student editors make all editorial and organizational decisions and, together with a professional business staff of four, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review is designed to be an effective research tool for practicing lawyers and students of the law. The Review also provides opportunities for its members to develop their own editing and writing skills. All student writing is unsigned, reflecting the fact that many members of the Review, in addition to the author and supervising editor, make a contribution to each published piece.

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