West Virginia Law Review

Document Type



In the pages of Volume 44 of the West Virginia Law Quarterly, Professor Kenneth Culp Davis, then a young law teacher in this College of Law, found in certain decisions of the supreme court of this State and of the Supreme Court of the United States the paradox that "Separation of powers, the cardinal principle upon which the federal and all the state governments are founded, a great American contribution to the science of government, violates the due process clause!" To Professor Davis this result seemed exceedingly absurd, and in this adverse judgment he has had with him the great weight of scholarly authority. Acting on the assumption that in the academic world no statute of limitations operates to foreclose reconsideration of a legal problem at any later date, it is my purpose: first, to offer a resolution to this seeming paradox and to pursue the ramifications of the distinction in constitutional theory which provides the basis for clarification; second, to tackle a related judicial enigma which also has troubled Professor Davis and other scholars, pursuing the implications of the proffered explanation for a more sympathetic attitude toward the much-maligned concept of "constitutional fact."



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