Suchergebnisse

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions." He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any ordinary act of the legislature; the constitution, and no such ordinary act, must govern the case to which they both apply." So too, he explained the duty of judges not generally, but by reference to the judicial role in deciding cases: "If two laws conflict with each other, the courts must decide on the operation of each …. The court must decide which of these conflicting rules governs the case. This is of the very essence of judicial duty."

An overarching question of contemporary constitutionalism is whether equilibriums devised prior to the emergence of the modern administrative-industrial state can be preserved or recreated by means of fundamental law. The book approaches this problem indirectly, through the conceptual lens offered by constitutional developments relating to the adoption of normative limitations on the delegation of law-making authority. Three analytical strands (constitutional theory, constitutional history, and contemporary constitutional and administrative law) run through the argument. They merge into a broader account of the conceptual ramifications, the phenomenon, and the constitutional treatment of delegation in a number of paradigmatic legal systems. As it is argued, the development and failure of constitutional rules imposing limits on legislative delegation reveal the conditions for the possibility of classical limited government and, conversely, the erosion of normativity in contemporary constitutionalism.