The Volokh Conspiracy
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Should our elected officials feel bound by constitutional obligations over-and-above the legal obligations that constrain and channel their conduct in office? Professor Neil Siegel argues the answer is "yes" in a new paper, "Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for Presidents and Members of Congress." This paper is provocative and important. (Don't just take my word for it. This paper was also a Legal Theory Blog "Download of the Week.")
Here's the abstract:
In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated 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 federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and 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. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including 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 concern that the vision offered here faces significant implementation problems.
I do not agree with Professor Siegel on every point, but I think this paper seeks to initiate a discussion that is of increasing importance for our political system. In this respect, I hope the paper succeeds.