Advisory Opinions Burkeanism and the Administrative State
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Dec 16, 2025 Will Baude, a law professor renowned for his expertise in constitutional law, joins Julian Davis Mortenson, a historian of executive power, to navigate the complexities of originalism and the administrative state. They tackle intriguing questions like the role of IQ tests in capital punishment and the tension between formalism and functionalism in executive power. Julian emphasizes a Burkean approach to preserving administrative practices, while Will advocates for gradual reforms to restore the separation of powers, all while debating the limits of judicial restraint.
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Treat Low IQ Scores As Triggers
- When an IQ score falls near the cutoff, let tribunals open the door to adaptive-function evidence before deciding eligibility.
- Use low scores as triggers for factfinding, not automatic disqualifiers.
Formalism Can Help Or Hurt Executive Restraint
- Formalist constitutionalism can both restrain and empower the executive depending on which textual principles the Court enforces.
- Will Baude warns formalist wins that don't constrain presidential power may be worse than non-originalist restraint.
Formalism-Then-Exception Cycle
- Replacing long-standing functional practices with strict formalism creates pressure to carve exceptions that erode the original principle.
- Julian Mortenson calls this the cycle: formalist overhaul then functionalist exceptions.
