E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Constitutional Role Morality for Presidents and Members of Congress
Neil Siegel
In the contemporary United States, the conduct of members of the political branches is generally regarded as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to do what it has done since at least the mid-twentieth century. It continues to focus primarily on judges and judging.
In a new article, I suggest that constitutional law scholarship should develop for presidents and members of Congress what it has long advanced for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The article first grounds a role morality for elected officials of the federal government in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: (1) securing the American conception of democracy as collective self-governance, and (2) creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political.
The article then tentatively proposes some rhetorical, procedural, and substantive components of constitutional role morality. They include a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained.
A final part anticipates objections, including the obvious one that the vision advanced in the article faces significant implementation problems.