Florida Legislative Supremacy
Tobias Barrington Wolff
tbwolff at UCDAVIS.EDU
Sun Nov 19 12:10:32 PST 2000
Mark Scarberry writes:
>Whether the legislature ought to do this is an open question in my mind,
>but I do not think state law (even state constitutional law) can detract
>from authority granted to a legislature by the US Constitution. I do not
>think that Florida constitutional separation of powers doctrine controls.
>To the contrary, if the US constitution grants this authority to the state
>legislature, then in effect there is a US constitutionally mandated
>separation of powers issue which arguably prohibits the state judiciary
>from interfering with the state legislature.
It does bear mentioning that the Constitution was drafted long before Erie,
when it was at least contested whether courts ever articulated positive
legal norms in the same way that legislatures do. Might "State . . .
Legislature" not have seemed to the framers the most natural way to refer
to the positive legal authority of the several States? At the very least,
that seems like a more likely reading than one that would impose upon the
States an inflexible division of internal authority. (I do not have
elaborate historical evidence demonstrating the correctness of this
suggestion, but offer it for discussion.)
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