The Concurrence of Powers: On The Proper Operation Of The Structural Constitution
The 15th Annual Hayek Lecture at New York University School of Law by the Honorable Judge Raymond Kethledge was another signal of a new generation in the federal judiciary. In his lecture “Hayek and the Rule of Law: Implications for Unenumerated Rights and the Administrative State,” Judge Kethledge builds from Hayek’s observations on the purpose and prerequisites of the “Rule of Law” to examine the role of courts and the political branches with respect to two related areas: the unenumerated rights thought to be enshrined in the 9th Amendment to the U.S. Constitution, and the problems that have arisen with the advent of the Administrative State.
Judge Kethledge joins an increasing number of judges and legal scholars who are willing to take a fresh look at the Supreme Court’s jurisprudence of the structural Constitution. In recent decades, the suspicion that the Court has gotten many, if not most, of the key decisions wrong in this area has become harder to dismiss out of hand as the executive branch continues its steady absorption of control over the governmental functions of the other federal branches as well as the states. This article takes Judge Kethledge’s discussion of Hayek, the Rule of Law and the Administrative State as its point of departure for a fresh look at the Constitution’s dissolving separation of powers.
