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What Is the Role of Judicial Deference?

The question of deference is a long-standing debate in constitutional law. Professor Lawrence Solum argues that there is no clear-cut answer to the question for an originalist. The issue of primary importance is what the Constitutional text dictates. Sometimes one branch of government should defer to another branch but it depends on the appropriate circumstances, as defined by the Constitution. https://youtube.com/watch?v=cmEQwLguejI


What role should deference play in Constitutional Law is one of the great questions of American Constitutionalism. The idea of deference by the Supreme Court, by judges generally, to the political branches, to Congress and the Executive, is an old one. Some questions are clearly entrusted by the Constitution itself to the political branches. Originalism can't embrace a vision of the Constitution that's not moored in the Constitutional text. What then is the Originalist position on deference? And I think that the answer to that question is that it always depends on the original meaning of a particular Constitutional provision. There is no general rule of deference. The Constitution entrusts some decisions to the President, and when a decision is entrusted to the President, then deference is appropriate, unless the President is acting in such a way that violates a limit on Presidential authority, or a Constitutional right conferred on individuals. Likewise, Congress is entrusted with the legislative power. The decisions of Congress as how to exercise that power, should be deferred to. The Supreme Court should not second guess the wisdom of legislation that carries out a power conferred by Article I on Congress. But, it is properly the role of the Court to police the boundaries of those powers to determine whether or not Congress has stepped outside the limited powers delegated to it by Article I. Sometimes deference needs to be very extensive, and sometimes there need be no deference at all. It all depends on the Constitutional text.

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