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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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Useful Instrument of Government

Useful Instrument of Government

Defending Advisory Opinions

4 Useful Instrument of Government
A Doubtful and Perilous Experiment

Mel A. Topf

Oxford University Press

Defenses of advisory opinions came only after the attacks, and after the advising justices developed restrictions on advising. Surprisingly, the defenses have rarely responded to the attacks, largely ignoring such challenges as separation of powers and due process. This chapter discusses the chief defenses, including advisory opinions as a remedy for the purported delay and inefficiency of judicial review. This issue made a national appearance during the New Deal era, when several proposals were introduced in Congress to amend the U.S. Constitution to require the U.S. Supreme Court to give advisory opinions, to stop New Deal legislation from being declared unconstitutional after being enacted and put into effect, as had happened several times. Other defenses discussed include the expertise of the judges and interbranch cooperation, a major principle of the Progressive era, whose intellectual leaders downplayed constitutional values such as separation of powers.

Keywords:   advisory opinions—defenses, judicial review, New Deal era, progressive era, separation of powers, due process, interbranch cooperation

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