Wednesday, February 07, 2018

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.

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