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It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They p

It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state, because this is how Congress wants things to work. They passed all those laws to create the agencies, after all. And the expanding administrative state is what has allowed members of Congress to do less and less actual work, and more and more performance art and fundraising. They barely even have to pass budgets any more; the agencies all find a way to keep “essential services” running anyway. Also, personally it drives me crazy when American legal discussions fall back to English legal traditions. Didn’t we fight a big revolution so we wouldn’t have to live with all that baggage? I’m not a lawyer so I know I’m out of my depth. But as a U.S. citizen living under a written Constitution, I have a hard time understanding why my country should make itself beholden to England’s legal history specifically.

woodruffw 4y ago
The practical answer is that every country needs a body of law to "bootstrap" with, and English common and case law isn't the worst place to start.
- PeterisP 4y ago
  And the two major alternative starting points used in practice are Roman law or Sharia law, both of which are likely even less acceptable to someone who doesn't want the baggage of English common law. On the other hand, in the civil law systems when new countries are formed, as soon as you get the core laws passed (which takes some years of transition) you do generally make a clean start where only the new code of laws matter and everything else is discarded - you explicitly choose which parts of earlier code get included in the new laws, and that's it, old laws get pulled out only if there's a relevant dispute about some events which happened back when those old laws were in force.
  - IG_Semmelweiss 4y ago
    The code of Hammurabi (eye for an eye) seemed to be popular back in the day. One must wonder if its host nation-state had survived for longer, what iteration would be out in the wild.
    - throw0101a 4y ago
      > The code of Hammurabi (eye for an eye) seemed to be popular back in the day. "Eye for an eye" comes from the Book of Exodus, and it was meant not as a prescription, but as a limitation: > The intent behind the principle was to restrict compensation to the value of the loss.[1] * https://en.wikipedia.org/wiki/Eye_for_an_eye https://en.wikipedia.org/wiki/Eye_for_an_eye
      - PeterisP 4y ago
        While Book of Exodus may be a major bringer of "eye for an eye" to western culture, it is certainly not the origin of the principle. The Hammurabi code predates the events described in the book of Exodus (and thus the book of Exodus) by many centuries, and does encode "Eye for an eye" as a literal prescription (If an citizen should blind the eye of another citizen, they shall blind his eye.) So it was also a prescription - but yes, as you say, it is also a limitation for retaliation, assigning an equivalent punishment to limit escalation of vengeance.
- snowwrestler 4y ago
  Sure our forefathers needed some bootstraps, but we’re coming up on 250 years of independence here.
  - woodruffw 4y ago
    Practical, not good :-)
  - krsrhe 4y ago
- otterley 4y ago
  No they don't. As I said elsewhere, even early English common law was often not written with reference to precedent. You'll see this if you read early English cases.
superdug 4y ago
Who’s historical court would you like to reference? We’ve not been a country for as long as there have been traditions and laws about finance in particular. We fought for independence from a monarchy and its kingdom, not to be free from governance.
- otterley 4y ago
  We could have started with our own legal decisions without reference to precedent. After all, that's what early English decisions themselves frequently did. They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.
  - Dracophoenix 4y ago
    >After all, that's what early English decisions themselves frequently did. Not really. What's commonly called English Common Law is itself an Anglo-Saxon bastardization of Norman Law. Even American Law borrows directly from Norman Law in the formers now dwindling but still surviving usage of Latin. >They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent. While I agree with the premise that is how law should be, that's generally not how it was nor is it so simple to accomplish. A quote to one should remember is that "[A]ny Anglo-American lawyer must cope with a sneaking feeling that there is no such thing as first principles, just one damned case after another."
adrianba 4y ago
At the founding, the Constitution documented all the things that were going to be different, but courts were intended to continue to apply the rest of the common law as it was. So, it's less about being beholden to England's legal history as much as it is being beholden to American history as it was at the time. It's just that most of the legal writing that courts depended upon was published by English legal scholars. One of the downsides of the fixed written Constitution being hard to change is that you end up with these strange rules where the law today is dependent upon intuition about how a current problem would have been viewed through the lens of the common law at the time of the founding, and we mostly only have English legal treatises to fall back on, so it feels like being beholden to English legal history.
ihumanable 4y ago
I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work. Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth. The dismantling of the administrative state leaves us in a precarious position where we either end up completely unregulated (which I know some people would welcome, but as someone that enjoys not getting asbestos in my breakfast cereal, I think we need some regulations). Do we just end up with massive packages of regulations written up by ALEC and other private groups that then get handed to legislators and passed? Sure an unelected bureaucrat sounds bad, but if the alternative of paying some guy $40k a year to think about these issues and draw up regulation is to let the person being regulated write their own rules, I'll take the former. I suspect the latter regulations will end up being whatever makes the most profit for the person being regulated, and if we all have to breathe lead because it makes some company's profits go up then so be it. The government isn't always on the side of the common man, but neither are multinational corporations, and the multinational corporations are pretty up front about being in it for themselves.
- zozbot234 4y ago
  > Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth. They certainly could be well-versed enough to supervise the work of picking the best proposals in each of these domains. Each Congress-critter has enough paid staff to basically be their own public-policy think tank.
- jfengel 4y ago
  Yes, we have 435 people who could do that. But in any given year, at least 200 of them will be elected specifically for the purpose of ensuring that government does nothing at all. So the remaining ones go to extraordinary effort to achieve even the basics, and often fail.
deleted 4y ago
[deleted]
vannevar 4y ago
>It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state... "Interesting" to say the least. Trying to govern a modern nation of 370 million people based on a literal 18th-century interpretation of a Constitution designed to govern a handful of former colonies is going to be a (very predictable) disaster, which is why the Court hasn't done it before.
- xyzzyz 4y ago
  This country became a world superpower with 100 million residents before it got any of the modern administrative state.
  - eesmith 4y ago
    I think you've got things a bit off. I think more correct ones are: - "This country became a world power with 76 million residents in 1900 before it got any of the Progressive era administrative state." - "The country became a world superpower with 180 million residents in 1960 before it got the modern administrative state" You wrote "world superpower", but the US didn't become a world superpower until WW2, well after ~1915, which is when the population reached 100M. While the US started becoming a world power in 1898, with the Spanish-American War, and fully became a world power by WWI, that was after the Interstate Commerce Commission was formed in 1887, as the first administrative agency. Now, you wrote "modern", which of course is in the eye of the beholder and likely is meant to exclude the ICC. Did the modern era start in 1906, with the FDA and the Federal Meat Inspection Act? Or Wilson, with the Federal Reserve (1913) and the FTC (1914)? Or the New Deal (1930s), like the SEC (1934)? You'll note that all of those were before the US became a modern world superpower, and several before the US population reached 100M. On the other hand, this beholder - https://ballotpedia.org/Administrative_state https://ballotpedia.org/Administrative_state - points out that the modern administrative state didn't start until 1964 with Johnson's Great Society programs. Here's another equally true statement: - "The country became a world superpower with 203 million residents in 1970 before 18 year olds had the right to vote." While true, that wouldn't justify removing the franchise from modern 18 year old. Your observation, even when corrected, seems to be similarly weak as an argument to remove administrative agencies.
usrn 4y ago
We fought the war to restructure the government. I think if you told the revolutionaries they were fighting to abandon those traditions they'd be very upset.
mistrial9 4y ago
IANL a quick look here [0] does say that court case United States v. Wonson (1812) established the historical test, which interpreted the amendment as relying on English common law to determine whether a jury trial was necessary in a civil suit; around the same time as the War of 1812. [0] https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_Unite...
dragonwriter 4y ago
> Also, personally it drives me crazy when American legal discussions fall back to English legal traditions. Didn’t we fight a big revolution so we wouldn’t have to live with all that baggage? No, actually, the revolution mainly had the opposite intent: anger that England was denying the English colonists the rights they were entitled to as Englishmen and would have enjoyed in England.

woodruffw 4y ago

The practical answer is that every country needs a body of law to "bootstrap" with, and English common and case law isn't the worst place to start.

PeterisP 4y ago
And the two major alternative starting points used in practice are Roman law or Sharia law, both of which are likely even less acceptable to someone who doesn't want the baggage of English common law. On the other hand, in the civil law systems when new countries are formed, as soon as you get the core laws passed (which takes some years of transition) you do generally make a clean start where only the new code of laws matter and everything else is discarded - you explicitly choose which parts of earlier code get included in the new laws, and that's it, old laws get pulled out only if there's a relevant dispute about some events which happened back when those old laws were in force.
- IG_Semmelweiss 4y ago
  The code of Hammurabi (eye for an eye) seemed to be popular back in the day. One must wonder if its host nation-state had survived for longer, what iteration would be out in the wild.
  - throw0101a 4y ago
    > The code of Hammurabi (eye for an eye) seemed to be popular back in the day. "Eye for an eye" comes from the Book of Exodus, and it was meant not as a prescription, but as a limitation: > The intent behind the principle was to restrict compensation to the value of the loss.[1] * https://en.wikipedia.org/wiki/Eye_for_an_eye https://en.wikipedia.org/wiki/Eye_for_an_eye
    - PeterisP 4y ago
      While Book of Exodus may be a major bringer of "eye for an eye" to western culture, it is certainly not the origin of the principle. The Hammurabi code predates the events described in the book of Exodus (and thus the book of Exodus) by many centuries, and does encode "Eye for an eye" as a literal prescription (If an citizen should blind the eye of another citizen, they shall blind his eye.) So it was also a prescription - but yes, as you say, it is also a limitation for retaliation, assigning an equivalent punishment to limit escalation of vengeance.
snowwrestler 4y ago
Sure our forefathers needed some bootstraps, but we’re coming up on 250 years of independence here.
- woodruffw 4y ago
  Practical, not good :-)
- krsrhe 4y ago
otterley 4y ago
No they don't. As I said elsewhere, even early English common law was often not written with reference to precedent. You'll see this if you read early English cases.

superdug 4y ago

Who’s historical court would you like to reference? We’ve not been a country for as long as there have been traditions and laws about finance in particular. We fought for independence from a monarchy and its kingdom, not to be free from governance.

otterley 4y ago
We could have started with our own legal decisions without reference to precedent. After all, that's what early English decisions themselves frequently did. They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent.
- Dracophoenix 4y ago
  >After all, that's what early English decisions themselves frequently did. Not really. What's commonly called English Common Law is itself an Anglo-Saxon bastardization of Norman Law. Even American Law borrows directly from Norman Law in the formers now dwindling but still surviving usage of Latin. >They were based on logic, by reference to statutory text, and by weighing the pros and cons of various alternatives, not precedent. While I agree with the premise that is how law should be, that's generally not how it was nor is it so simple to accomplish. A quote to one should remember is that "[A]ny Anglo-American lawyer must cope with a sneaking feeling that there is no such thing as first principles, just one damned case after another."

adrianba 4y ago

At the founding, the Constitution documented all the things that were going to be different, but courts were intended to continue to apply the rest of the common law as it was. So, it's less about being beholden to England's legal history as much as it is being beholden to American history as it was at the time. It's just that most of the legal writing that courts depended upon was published by English legal scholars. One of the downsides of the fixed written Constitution being hard to change is that you end up with these strange rules where the law today is dependent upon intuition about how a current problem would have been viewed through the lens of the common law at the time of the founding, and we mostly only have English legal treatises to fall back on, so it feels like being beholden to English legal history.

ihumanable 4y ago

I don't see how this doesn't end with the government basically failing. The modern world is dizzyingly complex, if Congress can't delegate to dedicated agencies how does this all work. Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth. The dismantling of the administrative state leaves us in a precarious position where we either end up completely unregulated (which I know some people would welcome, but as someone that enjoys not getting asbestos in my breakfast cereal, I think we need some regulations). Do we just end up with massive packages of regulations written up by ALEC and other private groups that then get handed to legislators and passed? Sure an unelected bureaucrat sounds bad, but if the alternative of paying some guy $40k a year to think about these issues and draw up regulation is to let the person being regulated write their own rules, I'll take the former. I suspect the latter regulations will end up being whatever makes the most profit for the person being regulated, and if we all have to breathe lead because it makes some company's profits go up then so be it. The government isn't always on the side of the common man, but neither are multinational corporations, and the multinational corporations are pretty up front about being in it for themselves.

zozbot234 4y ago
> Are there 435 people in this nation well versed enough to write detailed regulations on nitty gritty details about Securities on Monday, regulations on Agriculture on Tuesday, rules for calculating acceptable emissions for Coal Fired Power Plants based on service area, customers, and operating capacity on Wednesday and so forth. They certainly could be well-versed enough to supervise the work of picking the best proposals in each of these domains. Each Congress-critter has enough paid staff to basically be their own public-policy think tank.
jfengel 4y ago
Yes, we have 435 people who could do that. But in any given year, at least 200 of them will be elected specifically for the purpose of ensuring that government does nothing at all. So the remaining ones go to extraordinary effort to achieve even the basics, and often fail.

deleted 4y ago

[deleted]

vannevar 4y ago

>It will be very interesting to see what happens if SCOTUS tries to roll back the administrative state... "Interesting" to say the least. Trying to govern a modern nation of 370 million people based on a literal 18th-century interpretation of a Constitution designed to govern a handful of former colonies is going to be a (very predictable) disaster, which is why the Court hasn't done it before.

xyzzyz 4y ago
This country became a world superpower with 100 million residents before it got any of the modern administrative state.
- eesmith 4y ago
  I think you've got things a bit off. I think more correct ones are: - "This country became a world power with 76 million residents in 1900 before it got any of the Progressive era administrative state." - "The country became a world superpower with 180 million residents in 1960 before it got the modern administrative state" You wrote "world superpower", but the US didn't become a world superpower until WW2, well after ~1915, which is when the population reached 100M. While the US started becoming a world power in 1898, with the Spanish-American War, and fully became a world power by WWI, that was after the Interstate Commerce Commission was formed in 1887, as the first administrative agency. Now, you wrote "modern", which of course is in the eye of the beholder and likely is meant to exclude the ICC. Did the modern era start in 1906, with the FDA and the Federal Meat Inspection Act? Or Wilson, with the Federal Reserve (1913) and the FTC (1914)? Or the New Deal (1930s), like the SEC (1934)? You'll note that all of those were before the US became a modern world superpower, and several before the US population reached 100M. On the other hand, this beholder - https://ballotpedia.org/Administrative_state https://ballotpedia.org/Administrative_state - points out that the modern administrative state didn't start until 1964 with Johnson's Great Society programs. Here's another equally true statement: - "The country became a world superpower with 203 million residents in 1970 before 18 year olds had the right to vote." While true, that wouldn't justify removing the franchise from modern 18 year old. Your observation, even when corrected, seems to be similarly weak as an argument to remove administrative agencies.

usrn 4y ago

We fought the war to restructure the government. I think if you told the revolutionaries they were fighting to abandon those traditions they'd be very upset.

mistrial9 4y ago

IANL a quick look here [0] does say that court case United States v. Wonson (1812) established the historical test, which interpreted the amendment as relying on English common law to determine whether a jury trial was necessary in a civil suit; around the same time as the War of 1812. [0] https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_United_States_Constitution https://en.wikipedia.org/wiki/Seventh_Amendment_to_the_Unite...

dragonwriter 4y ago

> Also, personally it drives me crazy when American legal discussions fall back to English legal traditions. Didn’t we fight a big revolution so we wouldn’t have to live with all that baggage? No, actually, the revolution mainly had the opposite intent: anger that England was denying the English colonists the rights they were entitled to as Englishmen and would have enjoyed in England.