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A Doubtful and Perilous ExperimentAdvisory Opinions, State Constitutions, and Judicial Supremacy$
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Mel A. Topf

Print publication date: 2011

Print ISBN-13: 9780199756766

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199756766.001.0001

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This Peculiar Obligation

This Peculiar Obligation

The Problem of State Supreme Courts as Advisors

Chapter:
1 This Peculiar Obligation
Source:
A Doubtful and Perilous Experiment
Author(s):

Mel A. Topf

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199756766.003.0001

This chapter begins by considering the relation of advising to the exercise of judicial power and to the legitimacy of that exercise. It argues that advising, far from being merely a bland service to those in power, carries inherent political tensions and is itself an exercise of power that asserts a kind of balance of power. Surprisingly little studied and without a significant place in political theory, the relation of advising to power is prominent in political narratives from earliest times, and treated as central by such writers as Machiavelli and Hobbes. The latter part of this chapter accounts for the earliest appearance of a constitutional provision establishing advisory opinions, in the Massachusetts constitution of 1780 drafted by John Adams, relating it to the controversy over plural office holding. The chapter then offers an account of the creation of each of the advisory opinion provisions.

Keywords:   advisory opinions—history, plural office holding, Massachusetts constitution, Machiavelli, Hobbes, John Adams

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