I’ve been thinking about a question arising out of the coincidence of my reading Gary Lawson et al.’s The Origins of the Necessary and Proper Clause (Cambridge 2010) and David Rabban’s Law’s History (Cambridge, forthcoming) at the same time (see my previous two posts): what is the appropriate way – normatively/interpretively/historically -- for us to think about the relationship between public and private law?
Both Lawson et al. and Rabban show that (in the founding era, and the late nineteenth century, respectively), the language and conceptual frameworks of private law often bleed into the governing understandings of the nation’s public law – including its constitutional law. I’m sure most of us could cite many other examples of this dynamic. Lawyers are lawyers: it would be surprising if the conceptual frameworks they use to analyze legal problems in one sphere didn’t influence how they thought about the same in another. In some historical periods, this inter-penetration of public with private law can prove highly significant.
Once again, though, speaking as a political scientist, I wonder about how authoritative – how legitimate – such private law/public law bleeds should be considered. To re-visit a point I made in my post on Lawson et al. from a different perspective, does the simple fact that constitutional language was borrowed from the law of agency mean that Congress’s powers must be construed through the principles of (private) business law? To what extent, by contrast, are authoritative interpreters – even those adopting originalism as their touchstone – obligated to think about political theory as an indispensible component of the interpretive process?
Put otherwise, does the mere fact that constitutional language is drawn from the law of agency mean that one is obligated to understand his congressman as a direct analogue to his stockbroker, accountant, or attorney? Can private ever truly be transferred in its original form, unaltered, into the domain of public law? How should we think about these sorts of questions -- in the specific case Lawson et al. address, and in other areas of public law?