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Lawson on Conservatives versus Constitutionalists

Is the Rule of Law a Law of Rules or a Law of Law? Some conservatives seem to prefer the former. Should they?

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Gary Lawson, writing on Gundy v. United States decision in the Cato Supreme Court Review discusses the potential difference between conservative jurisprudence and constitutionalist jurisprudence.

If one is truly an originalist—or, as I would prefer to term it, a constitutionalist—one will not worry too much about how rule-like or standard-like a norm the Constitution prescribes in any given setting. To a constitutionalist, that is the Constitution's call to make, not the judge's. If the Constitution gives you a vague and mushy standard, a constitutionalist will do his or her best to apply the vague and mushy standard. There is no a priori reason to suppose that the Constitution will always prescribe crisp and clear rules, and there is a great deal of empirical evidence to the contrary. Constitutionalists think that cases should be decided on the basis of the Constitution, whatever role for courts that turns out to prescribe.

But if one is less a constitutionalist than a conservative,145 one might worry a great deal about the "appropriate" judicial role, public perceptions of the Court, the dangers of judicial "activism," and a host of other policy-laden considerations that are not grounded in constitutional meaning. Judicial conservatives, as opposed to judicial constitutionalists or originalists, have long worried about exactly these sorts of considerations. Indeed, those considerations are a large part of what defines someone as a judicial conservative.

In the particular context of delegation, Lawson explains how this distinction explains why Justice Gorsuch is more willing to consider whether there are constitutional limits on the delegation of authority to administrative agencies than was Justice Scalia. Although Scalia acknowledged that excessive delegation could pose constitutional problems, he did not believe there was a ready, judicially administrable test to distinguish permissible delegations from impermissible ones.

For more on this distinction, see Lawson's article with Stephen Calabresi, The Rule of Law as a Law of Law, which is styled as a response to Scalia's famous paper, The Rule of Law as a Law of Rules.