Danger of Grave Abuses

Mel A. Topf

in A Doubtful and Perilous Experiment

Published in print September 2011 | ISBN: 9780199756766
Published online January 2012 | e-ISBN: 9780199918898 | DOI:
Danger of Grave Abuses

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After the first appearance of an advisory opinion provision in 1780, nothing much happened until the Massachusetts constitutional convention of 1820, where Joseph Story was the first person in American history to attack advisory opinions as a threat to an independent judiciary. This chapter offers that narrative, and attributes Story’s position to his vision of a legal science as a protection against the ever-present threat of the politicization of the judiciary. He saw advisory opinions as a menace to this vision. After, the spreading attacks on advisory opinions were reinforced by the striking rise in stature of the judiciary in America. This chapter discusses the history and nature of the attacks on advisory opinions, especially attacks based on separation of powers and due process. It considers the states that have rejected advisory opinions on these grounds, and argues that there has arisen a jurisprudence of rejection by which nonadvisory opinion jurisdictions reject cases that are seen as advisory opinion requests in disguise—for example, as declaratory judgment actions.

Keywords: separation of powers; due process; Massachusetts constitutional convention; legal science; Joseph Story; jurisprudence of rejection

Chapter.  22205 words. 

Subjects: Constitutional and Administrative Law

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