A.V. Dicey and the Constitution
I just finished reading A.V. Dicey’s famed book on the British Constitution. Given its importance and my general interest in the subject, it’s surprising that I’ve never looked at this before. I was struck by a couple of things that I wanted to share.
Dicey observed that courts traditionally construed acts of Parliament with a strict adherence to the text, without referring to legislative history, and with a presumption against broad delegations of authority. This was a way of imposing limits on an otherwise omnipotent body. Since there was no judicial review of an Act of Parliament, in other words, the courts were much more careful in interpreting Acts of Parliament.
In some respects, we see this in the United States. Take the Suspension Clause. Although some argue that aspects of a habeas corpus suspension can be invalidated by the courts, most still say that a decision to suspend cannot be reviewed. As a result, courts require exceptional clarity from Congress to find that a suspension has occurred. Something similar occurs with respect to jurisdiction-stripping statutes (which also may involve a political question).
On the other hand, we can also see why attempts to create a non-delegation doctrine or exclude legislative history from consideration run into more difficulties here. Since there are constitutional limits on Congress, there is less of a need for these sorts of concepts. They may be right (though I’m not convinced), but they are not needed to the same extent as they were in Britain. Legal culture, you might say, follows function.
I’ll have more to say on Dicey’s discussion of constitutional conventions in a post net week.