Formalism, functionalism, ignorance, judges

Article Abstract:

Whether form or function should dominate interpretation of the Constitution has long been debated. The case of the legislative veto highlighted the split between formalism, which adheres strictly to the Constitution's prescribed forms, and functionalism, which provides for a broader interpretation. A reconsideration of Chief Justice John Marshall's views tips the balance in favor of formalism with the realization that the Constitution involves rules which are inevitably formalistic.

Analysis

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Relationships between formalism and functionalism in separation of powers cases

Article Abstract:

Consideration of separation of powers cases shows that formalism and functionalism in constitutional interpretation are not necessarily antithetical. Formalism emphasizes the deduction of bright-line rules from the strict reading of the Constitution. Functionalism arrives at standards and balancing tests based on a more flexible interpretation. The Steel Seizure and Independent Counsel Law cases reveal that these two schools of thought are actually complementary.

Political aspects

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Formalism, functionalism, and the separation of powers

Article Abstract:

Both Congress and the Supreme Court have contributed to eroding the constitutional separation of powers. Congress has done this by excessively delegating its powers as a way to dodge political responsibility and achieve reelection. The Supreme Court has exacerbated the problem by failing to check Congress' tendency to delegate. This dual failure is equally grave under either the functionalist or formalist schools of thought.

Legislative power

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