Garrick Pursley
Assistamt Professor
Constitutional Law II, Federal Jurisdiction, Legislation & Regulation
gpursley@law.fsu.edu
“As our problems grow more complex, they demand increasingly complex
responses. For environmental issues, we have embraced collaborative
arrangements in which the federal, state and sometimes local governments
share policymaking responsibilities to divide up the workload, leverage their
varying areas of expertise, and better address local preferences. Our energy
crisis, of course, also demands innovative action, though the nature of the
optimal program is still being worked out. More and more, our constitutional
system is being challenged to adapt; structural flexibility is essential for
dealing with unforeseeable issues as they arise. But the rigid constitutional
views that are currently ascendant cast doubt on the legitimacy of these
kinds of innovations and may derail needed reform.
“The question of the Constitution’s relative rigidity or flexibility is an old one,
but recent advances in constitutional theory and other fields help to move the
debate forward. If we view the Constitution as providing a few simple,
commonsense structural requirements rather than a long list of detailed and
unalterable structural mandates, then it may be legitimate to consider
pragmatic factors—like effectiveness and efficiency—as we assess what the
Constitution permits. This makes for both greater structural adaptability and
more coherent and predictable constitutional limitations on regulatory
experiments. One goal of my current work is to establish that this simpler view
of the Constitution is the better one, and on that basis to defend innovative
environmental and energy policy initiatives, among other things, against
constitutional challenge.”
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