Academic Commons

Articles

The Disposing Power of the Legislature

Merrill, Thomas W.

The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of constitutional common law – the power of courts top re scribe rules inspired by the Constitution but subject to legislative revision, as described in Professor Henry Monaghan’s pathbreaking 1975 Harvard Law Review Foreword – may in fact be unconstitutional in many of its applications.

Files

  • thumnail for The_Disposing_Power_of_the_Legislature.pdf The_Disposing_Power_of_the_Legislature.pdf application/pdf 2.34 MB Download File

More Information

Published In
Columbia Law Review
Volume
110
Issue
2
Pages
452 - 478
Publisher
Columbia Law Review Association, Inc.
Publication Origin
New York, NY
Academic Units
Law
Academic Commons provides global access to research and scholarship produced at Columbia University, Barnard College, Teachers College, Union Theological Seminary and Jewish Theological Seminary. Academic Commons is managed by the Columbia University Libraries.