This Peculiar Obligation

Mel A. Topf

in A Doubtful and Perilous Experiment

Published in print September 2011 | ISBN: 9780199756766
Published online January 2012 | e-ISBN: 9780199918898 | DOI:
This Peculiar Obligation

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This chapter begins by considering the relation of advising to the exercise of judicial power and to the legitimacy of that exercise. It argues that advising, far from being merely a bland service to those in power, carries inherent political tensions and is itself an exercise of power that asserts a kind of balance of power. Surprisingly little studied and without a significant place in political theory, the relation of advising to power is prominent in political narratives from earliest times, and treated as central by such writers as Machiavelli and Hobbes. The latter part of this chapter accounts for the earliest appearance of a constitutional provision establishing advisory opinions, in the Massachusetts constitution of 1780 drafted by John Adams, relating it to the controversy over plural office holding. The chapter then offers an account of the creation of each of the advisory opinion provisions.

Keywords: advisory opinions—history; plural office holding; Massachusetts constitution; Machiavelli; Hobbes; John Adams

Chapter.  14974 words. 

Subjects: Constitutional and Administrative Law

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