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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IQ Scores Aren't Decisive For Death Penalty
- IQ scores alone are a poor determinative test for death-penalty eligibility because they vary and have margins of error.
- Justice Kagan's trigger rule (one low score opens adaptive-function inquiry) balances standards with holistic fact-finding.
Holistic Review Over Numeric Cutoffs
- Relying on a single numerical cutoff creates perverse incentives for defendants to game tests and misstates Atkins' holistic standard.
- Courts should evaluate adaptive functioning and context, not mechanically average IQs.
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.
