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Colleges and universities around the world engaged diverse strategies during the COVID-19 pandemic. Baylor University, a community of ˜22,700 individuals, was one of the institutions which resumed and sustained operations. The key strategy was establishment of multidisciplinary teams to develop mitigation strategies and priority areas for action. This population-based team approach along with implementation of a “Swiss Cheese” risk mitigation model allowed small clusters to be rapidly addressed through testing, surveillance, tracing, isolation, and quarantine. These efforts were supported by health protocols including face coverings, social distancing, and compliance monitoring. As a result, activities were sustained from 1 August to 8 December 2020. There were 62,970 COVID-19 tests conducted with 1,435 people testing positive for a positivity rate of 2.28%. A total of 1,670 COVID-19 cases were identified with 235 self-reports. The mean number of tests per week was 3,500 with approximately 80 of these positive (11 per day). More than 60 student tracers were trained with over 120 personnel available to contact trace, at a ratio of one per 400 university members. The successes and lessons learned provide a framework and pathway for similar institutions to mitigate the ongoing impacts of COVID-19 and sustain operations during a global pandemic.
In Law of the Constitution, A. V. Dicey identified two legal principles as the animating principles of the British constitution: parliamentary sovereignty and the rule of law. The juxtaposition of these two principles exposed central themes at the heart of the ideal of constitutionalism and constitutional government within the common law tradition. Early in his book, Dicey stated that parliamentary sovereignty is ‘the dominant characteristic of our political institutions’.1 Yet it would be clear by the end of the book that Dicey saw the two principles as equal in their importance – that supreme legislative power is valued insofar as the supremacy of law is valued. ‘Th[e] rule of law’, Dicey concluded, ‘is of the very essence of English institutions’, and ‘[i]f the sovereignty of Parliament gives the form, the supremacy of the law of the land determines the substance of our constitution’.2
In the dozen or so years between his trip to America with Bryce and his appointment to a chair at Oxford, Dicey published prodigiously. By the early 1880s, he was a regular political commentator for the American periodical The Nation.1 He wrote on law and legal issues, sometimes directly and at other times in the course broader discussions of politics, political morality or history. His legal writings were eclectic, addressing education,2 history,3 institutions4 and theory.5 Dicey also wrote dense doctrinal material specifically for lawyers.6
Judges began citing A. V. Dicey’s Law of the Constitution during his lifetime,1 and judges throughout the common law world continue to cite Dicey’s book today.2Law of the Constitution has been described as ‘one of the great law books of all time’.3 Even those critical of Dicey do not deny the powerful impact of his book. As Felix Frankfurter wrote, ‘Few law books in modern times have had an influence comparable to that produced by the brilliant obfuscation of Dicey’s The Law of the Constitution’.4 Leaving his claim about obfuscation aside, Frankfurter’s statement is as true today as it was when he made it over eighty years ago.
In the common law tradition, the idea of the constitution is a paradox: the laws that are supposed to be foundational for the ordinary laws that govern day-to-day life turn out to be an integral part of those same ordinary laws. The constitution is part of the general law of the land. This is not so in other legal traditions. In France, it has been said, the constitution is paraded in full splendour before the ranks of ordinary law; its commands are the voice of an extraordinary sovereign to be obeyed and never questioned. In the common law tradition, however, constitutional laws are dispersed amongst the ranks, their effect manifested as a powerful centripetal force from within. The constitution is not a special phenomenon isolated from the rest, but something to be questioned, debated, discussed, and developed just as any other law is – through ordinary legal discourse. This conception of the constitution is especially evident in the United Kingdom today, but it remains relevant in modified ways in other common law jurisdictions, even those that have adopted entrenched constitutional documents. Is there any value to understanding constitutional law, or indeed the general ideal of constitutionalism, in this common law way?
Writing to Oliver Wendell Holmes Jr, in 1880, A. V. Dicey commented on the differences between legal, historical and philosophical perspectives on law, and then stated: ‘I should also like sometime or other to write an article on what may be termed the difference between the new & the old school of legal literature but I have gone far too near pouring out an article on your head & ought to stop’.1 If only Dicey had kept going. What were the differences between the new and old schools of legal literature? What was the role of the legal writer? What was the relationship between different styles of legal literature and different schools of legal theory? These were perennial questions for Dicey.
Albert Venn Dicey lived from 1835 to 1922. He was a student at Oxford in the late 1850s and held a college fellowship at Oxford from 1860 until his marriage to Elinor Bonham Carter in 1872. He was a barrister who served as counsel to the Inland Revenue before returning to Oxford as the Vinerian Professor of English Law in 1882. In addition to publishing works on constitutional law and conflict of laws, he advocated a series of political positions that became increasingly unpopular during his lifetime, arguing against female suffrage, Irish home rule, and the rise of the modern welfare state.1 Dicey could be politically dogmatic and uncompromising. His colleague at Oxford, the Professor of Jurisprudence Sir Frederick Pollock, observed that Dicey and his lifelong friend, James Bryce, who would serve as cabinet minister and ambassador to the United States, were ‘university Liberals together’, but Dicey’s ideas ‘remained fixed on all material points while Bryce’s mind was open to the last’.2 Dicey conceded that he never ceased to be a ‘Mid-Victorian’.3
In his capacity as the Vinerian Professor of English Law at Oxford, Albert Venn Dicey famously denied there was such a thing as administrative law in England. What is not generally known is that Dicey in his capacity as counsel to the Inland Revenue argued some of the leading administrative law cases of the late nineteenth century and was thus one of the most prominent administrative lawyers at the bar during his day. Dicey had a number of intellectual blind spots. Administrative law was the biggest one.1
At the age of nineteen, Dicey went up to Oxford to read Classics. Due to his frail physical condition, he delayed matriculation at his college, Balliol, until Easter of 1854. Most students commenced their studies in the autumn and so Dicey matriculated with only two or three other students. One of them, as it happens, was Thomas Erskine Holland, who would become the Chichele Professor of International Law at Oxford and a lifelong friend.1
A. V. Dicey’s great achievement in Law of the Constitution was to give to the amorphous common law constitutional tradition an analytical structure that allows rational inquiry into the character and value of that tradition. This structure is based upon principles rather than rules, so the result is not a detailed map but an impression of the constitutional landscape that draws the eye to important contours and features allowing critical appreciation of the scene. A distinctive part of this achievement is the identification of a legal reference or vantage point from which the landscape can be surveyed. Dicey saw the constitution with a legal turn of mind.
In the common law world, Albert Venn Dicey (1835–1922) is known as the high priest of orthodox constitutional theory, as an ideological and nationalistic positivist. In his analytical coldness, his celebration of sovereign power, and his incessant drive to organize and codify legal rules separate from moral values or political realities, Dicey is an uncanny figure. This book challenges this received view of Dicey. Through a re-examination of his life and his 1885 book Law of the Constitution, the high priest Dicey is defrocked and a more human Dicey steps forward to offer alternative ways of reading his canonical text, who struggled to appreciate law as a form of reasoned discourse that integrates values of legality and authority through methods of ordinary legal interpretation. The result is a unique common law constitutional discourse through which assertions of sovereign power are conditioned by moral aspirations associated with the rule of law.
Like many members of the Victorian intellectual aristocracy, Albert Venn Dicey had not one but several careers. Members of the landed aristocracy might have enjoyed lives of leisure, but members of the intellectual aristocracy usually needed to engage in paid work of some kind. Of course, Dicey would not have chosen a life of leisure even if that option had been available. If he had internalised any assumptions of his Clapham forebears at all, it was their sense that those qualified by a liberal education to do so were morally bound to work in the service of the nation. Dicey sought to fulfill this imperative of civic virtue through employment within three distinct but complementary institutions: the university, the bar and the press.
Albert Venn Dicey had long wished for a professorship. There were four chairs in law at Oxford at this time. He had tried for the Chichele Professorship of International Law, but it went to his friend Thomas Erskine Holland. The Regius Professorship of Civil Law was held by his friend James Bryce. That left the Corpus Professorship of Jurisprudence and the Vinerian Professorship of Common Law. As it happened, both chairs became vacant at about the same time. Sir Henry Maine resigned as Professor of Jurisprudence in late 1878 to become Master of Trinity Hall, Cambridge, and John Robert Kenyon, who had been the Vinerian Professor since 1844, died in April 1880. Long before his death, Kenyon had more or less retreated to his ‘beloved Shropshire’ and the Vinerian chair was effectively in abeyance.1 However, the university took steps to reconstitute and revitalise the chair. At this time, the Vinerian professorship in law was attached to All Souls with an annual salary (£700) thought sufficient to attract worthy candidates, and it was renamed the Vinerian Professorship of English Law.2