Professor John Manning ’85
Professor John Manning ’85 delivered a chair lecture, “The Separation of Powers as Ordinary Interpretation,” in October to mark his appointment as the Bruce Bromley Professor of Law.
Manning, who was named to the chair in 2007, was introduced by HLS Dean Martha Minow. “John’s work exemplifies how close attention to text, respect for constitutional and governmental structure, and adherence to principle both preserve and advance the vital significance of these values in the rule of law,” she said. “It gives me enormous personal pleasure to introduce the Bruce Bromley Professor of Law, distinguished scholar, highly accomplished lawyer, trusted adviser, ‘Nicest Person—Ever’ and my dear friend, John Manning.”
Addressing a full Caspersen Room, with a broad representation of the HLS community in attendance, Manning explained that he chose the topic of separation of powers because it reflects how teaching at HLS has changed the way he thinks about the relationship between separation of powers and textualism. At the most basic level, textualists believe that statutes should be interpreted by the ordinary meaning of the words they enact, while “purposivists” look more to the background policies that inspired the legislation. Manning said that studying the work of legal process scholars Henry Hart and Albert Sacks ’48 (both of whom had distinguished careers at HLS) had made him sympathetic to the idea that all laws are inspired by some purpose. But, he emphasized, it is nonetheless crucial to recognize that lawmakers express their purpose, in part, through the particular means they select for putting a law into effect—including decisions about when to make provisions specific and precise and when to make them open-ended and flexible.
Applying that idea to the Constitution, he suggested that he now thinks “that it’s a mistake to talk about separation of powers as a free-standing concept.” He stressed that there is no all-purpose “separation of powers clause” in the Constitution, and the constitutional text, in fact, reflects countless particular decisions about how to strike an appropriate balance between separating and blending or otherwise checking federal power. Records from the Philadelphia Convention confirm that there may have been broad agreement about the need for some sort of separation of powers, he explained, but there was much disagreement on how to implement it. Even if the founders had wanted to adopt a separation of powers clause, there would have been little or no consensus about what that concept entailed.
“If one thinks, as I do, that the written Constitution has at least some binding force, then respect for the lawmaking process forces us to pay attention to the varying levels of generality they used in the text,” he said.
To illustrate his point about how both the framers of the Constitution and the authors of statutes have settled on a particular level of specificity, he used as an example a sign that reads “No Dogs in the Park.” He explained that the authors settled on these specific words, rather than “No Disruptive Animals,” even knowing that it would be both over- and underinclusive in relation to the apparent goal of excluding disruptive pets.
After the conclusion of his remarks, Manning answered questions from faculty and students and further explained his theory of textual particularity. He pointed out that lawmakers and jurists cannot choose to enforce some aspects of the Constitution while ignoring others, regardless of the level of generality.
“Sometimes the text is clear and specific, and sometimes it’s vague and open-ended,” he said. “But being faithful to the levels of generality within the Constitution is being faithful to the Constitution.”
Education
- Harvard College A.B., History, 1982
- Harvard Law School J.D. 1985
- Law clerk to Associate Justice Antonin Scalia ’60, U.S. Supreme Court (1988-1989)
- Law clerk to Judge Robert H. Bork, U.S. Court of Appeals for the D.C. Circuit (1985-1986)
Teaching Appointments
- Harvard Law School (2004 to present)
Professor of law, 2004
Bruce Bromley Professor of Law, 2007 - Columbia Law School (1994 to 2004)
Books
- “Legislation and Regulation”
(Foundation Press, 2010), with Matthew Stephenson ’03 - ”Hart and Wechsler’s The Federal Courts and the Federal System,” 6th ed. (Foundation Press, 2009), with David Shapiro ’57, Richard H. Fallon and Daniel J. Meltzer ’75
Excerpt: from “the Separation of Powers as Ordinary Interpretation”
I now think it a mistake to talk about the separation of powers as a free-standing construct. Why? ...
[T]he document and its history make clear that Constitution-makers disagreed and bargained hard about the way that broad constitutional values such as democracy, federalism and countless others would be carried into effect. The Constitution does not adopt the separation of powers wholesale, any more than it does any other constitutional value. Rather, the text of the Constitution records countless particular decisions about how to allocate and condition the exercise of federal power. And the records of the Philadelphia Convention, which I find useful for little else, confirm that there may have been broad agreement about the need for a separation of powers, but there was also widespread and deep disagreement about how to carry that principle into effect at that level of detail. And this disagreement resulted in compromise—practical, difference-splitting compromise— and not the rote implementation of some separation of powers template external to the document. Unlike many states from that era, the Constitution has no separation of powers clause. Nor would it have made sense to include one. For no one agreed on what the separation of powers entailed.
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