Law as Constraint on Government


New York, Sept. 19, 2012—Columbia Law School will host a conference on Sept. 21 that will examine the issue of law as a constraint on government institutions. More than a dozen distinguished constitutional scholars from a number of leading law schools will participate in the daylong discussion, “Are Government Institutions Constrained by Law?”
The closed-door event is being organized jointly by Columbia Law School’s Trevor Morrison ’98, the Isidor and Seville Sulzbacher Professor of Law and co-director of the newly established Center for Constitutional Governance; and Curtis Bradley, the William Van Alstyne Professor of Law at Duke Law School. Along with the other participants, the pair will wrestle with thorny legal questions such as the extent to which legal constraints on the government depend on judicial review, whether and under what conditions government actors internalize legal norms, and the interrelationship of politics and law in this context.
“Whether and to what extent government actors are constrained by law, especially on matters unlikely to come before the courts, are hardly new questions,” Morrison acknowledged. “But they are particularly pressing these days, especially in the area of presidential power. Events over the last decade ranging from warrantless surveillance to recess appointments have focused attention on whether, how much, and how the law affects the exercise of presidential power, and also on the relationship between law and politics in this area. This workshop will bring together a wonderful group of scholars, many of whom also have experience working in government, to think through these and related problems.”
Morrison and Bradley each are teaching an innovative new seminar this fall at their respective law schools on the same topic—history and constitutional authority. The course will explore various ways in which the interpretation of government power is informed by historical practice, and not just by analysis of constitutional text or judicial precedents.
Bradley and Morrison are finishing work on a major article, due to be published in the Harvard Law Review in December, examining the role that historical practice plays in defining government authority.  They also plan to write a book that considers the ways in which the powers of Congress, the president, and the courts have been defined by historical practices, and the extent to which these practices serve to limit the exercise of government authority.