Constitutional Morality and the Rise of Quasi-Law

by Bruce P. Frohnen, George W. Carey

Overview

Americans are increasingly ruled by an unwritten constitution consisting of executive orders, signing statements, and other forms of quasi-law that lack the predictability and consistency essential for the legal system to function properly. As a result, the U.S. Constitution no longer means what it says to the people it is supposed to govern, and the government no longer acts according to the rule of law. These developments can be traced back to a change in “constitutional morality,” Bruce Frohnen and George Carey argue in this challenging book.

The principle of separation of powers among co-equal branches of government formed the cornerstone of America’s original constitutional morality. But toward the end of the nineteenth century, Progressives began to attack this bedrock principle, believing that it impeded government from “doing the people’s business.” The regime of mixed powers, delegation, and expansive legal interpretation they instituted rejected the ideals of limited government that had given birth to the Constitution. Instead, Progressives promoted a governmental model rooted in French revolutionary claims. They replaced a Constitution designed to mediate among society’s different geographic and socioeconomic groups with a body of quasi-laws commanding the democratic reformation of society.

Pursuit of this Progressive vision has become ingrained in American legal and political culture—at the cost, according to Frohnen and Carey, of the constitutional safeguards that preserve the rule of law.

Product Details

ISBN-13:	9780674088870
Publisher:	Harvard University Press
Publication date:	06/13/2016
Edition description:	New Edition
Pages:	304
Product dimensions:	6.00(w) x 9.40(h) x 1.00(d)

About the Author

Bruce P. Frohnen is Professor of Law at Ohio Northern University College of Law.

George W. Carey was Professor of Government, Georgetown University.

Table of Contents

Introduction: A Conflict of Expectations 1

1 The Rule of Law 19

2 Constitutions: Ends, Means, and the Structure of Government 50

3 The Framers' Constitution 80

4 Progressives and Administrative Governance 115

5 Progressive Reformers and the Framers' Constitution 153

6 The New Dispensation and the Rise of Quasi-Law 183

Conclusion: The Plural Structure of Society and the Limits of Law 220

Notes 243

Acknowledgments 287

Index 289

Editorial Reviews

Frohnen and Carey retrieve a conservative constitutionalism that depends on habits of mind and personal virtue to stabilize a good political order. Even those who, like me, disagree with many of the argument’s details, examples, and prescriptions will profit from grappling with its basic thrust.

Mark Tushnet

This thoughtful book examines the rise of ‘quasi-law,’ the group of executive orders, waivers from legislation, presidential directives, signing statements, and the like that have the obligatory effect of law but depart from proper constitutional process as the framers instituted it…This is a welcome addition to the understanding of the current status of American constitutionalism.

Choice - M. Blitz

This book provides a forceful and insightful account of both the structural demise of the rule of law and the corruption of the language of public discourse. It recasts our understanding of the American constitutional experiment and its prospects for the future.

Filippo Sabetti