Response or Comment
Of Sovereigns and Servants, 115 YALE.. L. J. 2634 (2006)
The essays in this Symposium occupy two distinct scholarly realms: local government law and the separation of powers. Unsurprisingly, the contributors are preoccupied with different questions. The local government scholars writing about executive power tend to emphasize the ways in which it might invigorate weak city governments, while those we would typically term executive power scholars are-with two noteworthy exceptions-mostly interested in figuring out how to tame an overly energetic national executive. If the academic world is divided between lumpers and splitters, the conference would seem to confirm the intuitions of the latter. A closer look, however, reveals several interesting opportunities for cross-pollination.
The goal of this brief Commentary is to offer a general conceptual frame for connecting some of the localist and nationalist strands in this Issue. It does so by bumping the analysis up one level of generality in order to identify two institutional fixes common to both the local government law essays and executive power essays. One relies on the "power of the sovereign"; the other relies on the "power of the servant." What these concepts add to the debate is a bit of shared terminology- a way of capturing a set of distinctions that run through large portions of constitutional law (and other areas as well). They thus allow us to compare and contrast the markedly varied policy proposals offered by four of the Symposium's participants and serve as the basis for some quite preliminary and necessarily truncated observations about the debates taking place in this Issue.
Date of Authorship for this Version
Gerken, Heather K., "Of Sovereigns and Servants" (2006). Faculty Scholarship Series. Paper 353.