The Constitution as we understand it includes principles that have emerged over time in a common law fashion. One such principle is the disposing power of the legislature – the understanding that only the legislature has the power to arrange, order, and distribute the power to act with the force of law among the different institutions of society. This Essay illustrates the gradual emergence of the disposing power in criminal, civil, and administrative law, and offers some reasons why it is appropriate that the legislature be given this exclusive authority. One implication of the disposing power is that another type of constitutional common law – the power of courts to prescribe rules inspired by the Constitution but subject to legislative revision, as described in Professor Henry Monaghan's pathbreaking 1975 Harvard Law Review Foreword – may in fact be unconstitutional in many of its applications.
Thomas W. Merrill,
The Disposing Power of the Literature,
Colum. L. Rev.
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