Should We Expect More from Our Elected Officials?

Are there constitutional obligations above and beyond the legal requirements of office?

|The Volokh Conspiracy |

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.

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  1. ” constitutional obligations over-and-above the legal obligations”

    Constitutional obligations ARE legal obligations. Highest law of the land, after all.

    I think the problem here is identifying as “constitutional obligations” things that can’t actually be found within the Constitution. “Role morality”, in other words. It’s not a concept you’ll find addressed within the Constitution. (Well, except perhaps in the President’s oath of office.)

    I think we would be better served by paying less attention to norms that aren’t actually written into the Constitution, and being more relentless in demanding compliance with rules that ARE actually written into the Constitution.

    Demanding that the quorum clause be enforced, for instance. Or ceasing sophistry concerning the reach of the interstate commerce clause.

    The resulting reduction in the reach of the federal government might reduce the stakes in elections, and thus the horror people have at the prospect of losing them.

    1. Please consider, Brett, that strict rules have vivid limitations, and that sound judgment — a deft touch — can improve a system, especially a system designed and operated by and for people.

      Or, just enjoy the music.

      (An illustration.)

      1. What the heck is a “vivid” limitation? I’m familiar with the concept of images being “vivid”, or even descriptions, but I’m at somewhat of a loss how a limitation is supposed to be “vivid”.

        We have laws, including the highest law of the land, the Constitution. They are being routinely violated. I think this is a greater concern than a violation of what somebody thinks are norms of behavior.

      2. “and that sound judgment — a deft touch — can improve a system”

        One man’s sound judgement is another man’s fool’s errand. Smoke and mirrors, nothing more.

        Unenforceable limits on government/elected officials power/discretion are not limits at all.

      3. Instead of “vivid,” how about “rigid?” Not as colorful, but seems more precise in context.

        1. The limitations are not rigid. The people who disregard or do not perceive them often are.

    2. Just curious Brett, did you read the paper before you commented? I just did and agree with Prof Adler about the potential importance of its ideas. It parallels some thoughts in another book I read recently, Steven Levitsky’s and Daniel Ziblatt’s “How Democracies Die.” For instance:

      “Two basic norms have preserved America’s checks and balances in ways
      we have come to take for granted…Mutual toleration, or the understanding
      that competing parties accept one another as legitimate rivals, and
      forbearance, or the idea that politicians should exercise restraint in deploying
      their institutional prerogatives. These two norms undergirded American
      democracy for most of the twentieth century.”

      I’ve long observed that society’s standards seem to depend far more on the ‘play in the joints’ of our framework of rules and regulations than in the exact (and necessarily incomplete) wording of the legislation itself.

      Your concerns about judicial overreach are not entirely unfounded, and I understand your primary concern here is that we should be wary of extending that overreach to the legislative branch? Or is it just that you think Seigle’s paper seems to claim an unwarranted Constitutional justification for its premise?

      Aside from that, what do you think of the actual ideas (and the similar ideas of Levitsky and Ziblatt)?

      1. I took a crack at reading through the paper. I find the idea to be largely smoke and mirrors. It’s an interesting idea, but implementing in the real world will be impossible.

        He doesn’t seem to offer any form of enforcing his “role morality” beyond the ballot box.

        He spends some time on the fact that the federal government is dysfunctional, but ignores the possibility that the size and complexity of the federal government is a major cause of that dysfunction.

        In my opinion, the federal government is simply too complex and does too much for voters to meaningfully enforce any limits of the actions/discretion of federal elected officials.

        1. Don’t under-dignify your ideology by calling it mere “opinion.”

          More generally, is it a bad thing when the federal government does stuff voters like? Is it good politics, or good ideologically, to suggest that if some proposal for federal policy or program looks like it will be well-received publicly, then that fact alone is reason to oppose the proposal?

          1. ” is it a bad thing when the federal government does stuff voters like?”

            If it is not a constitutionally provided power, yes. What percentage of voters? Or are you a proponent of the tyranny of the majority?

      2. Yes, I did read it. “Or is it just that you think Seigle’s paper seems to claim an unwarranted Constitutional justification for its premise?”

        Bingo. There’s nothing Constitutional about Seigle’s complaints.

        Aside from that, I think worrying about norms of behavior when actual constitutional laws are not being complied with is to elevate appearance over reality. It’s like worrying about an eye tick when somebody has a gushing wound.

        We have a Constitution. All of those clowns are swearing an oath to follow it. Pretty much none of them ARE following it. Isn’t that the real problem here?

  2. “More generally, is it a bad thing when the federal government does stuff voters like?”

    The problem with that is that the “wants” of the voters are unlimited, but the resources of the federal government never will be. The government can only do so much before it becomes an unmanageable mess.

    So, in general, is it a bad thing if the government does something voters like? No. Is it a bad thing if the government tries to do everything the voters like? Yes.

    “Is it good politics, or good ideologically, to suggest that if some proposal for federal policy or program looks like it will be well-received publicly, then that fact alone is reason to oppose the proposal?”

    No, it wouldn’t be, but then that bears no resemblance to anything I have suggested.

  3. Even though there is a constitutional obligation for Congressmen to swear an oath to support and defend the constitution, its not enforceable except by the voters and by Congress themselves.

    In fact there are a lot of congressional districts where a determination to faithfully follow the constitution would be considered disqualifying.

    1. Should we figure that you have the modern, successful American communities in mind, rather than the can’t-keep-up communities devastated by generations of bright flight?

      1. IIUC he is most likely referring to the Progressive Plantations that have been controlled by Progressive Democrats for decades, some almost a century. I would note that those are the same communities that have a problem with their laws, their law enforcement, etc. yet continue to place Progressive Democrats in control of making and enforcing the laws.

  4. The phrase “role morality” is a term of art that could usefully be necessary for anyone in law enforcement, from FBI agents down to corrections officers in a ward for the allegedly criminally insane, which I once was. Anyone in a democracy who polices others under the color of authority needs such an internal mental mechanism, but just what in our current K-12 education system or higher academia do we hope will impart such enlightenment?

    I also managed to be a teacher, school counselor, and principal in the bumpy wild ride that functioning alcoholics sometimes make of life. I didn’t sense that much was going on in the teaching of moral understanding at any level. Mostly it was just the same old habit of equipping the students with a slap-dash kit of conventions, labels, and dangerously undefined buzz words.

    1. “which I once was”

      “corrections officer” or “criminally insane”?

  5. Now retired, I reflect that never has my appeal to an employee’s morality ever, even slightly, improved their performance. Additionally, I am hard pressed to come up with a single example of an improvement in my life because of the imposition by anyone, especially a politician, of their idea of morality.
    I realize it’s a totally insane idea, but perhaps the courts could begin to declare all these laws that do not actually follow from the constitution to be unconstitutional. Perhaps that is where legal academics should strive to improve. Teach the up and coming class of scholars to become judges who actually do their fucking job, yes? What a refreshing concept!

    1. “the courts could begin to declare all these laws that do not actually follow from the constitution to be unconstitutional”. Of course the problem is the word “actually” right?

      1. See, this is the sort of postmodernism that causes living constitutionalism to be so publicly unpopular, even as legal professionals tend to embrace it: The pretense that written language is so opaque that it’s just hopeless to try to understand it, and so you can’t objectively say when judges have gotten it wrong.

        Whereas it’s quite easy to identify cases where the Constitution is being violated and the judiciary refuses to rule that way. To give just one example, there are constitutional rules such as the quorum clause that Congress is bound by, that the courts flatly refuse to enforce.

        The Constitution says Congress must have a quorum to conduct business, but anybody can see that most of the time Congress is conducting business, you could throw a hand grenade into the chambers and probably not hurt anybody.

        The judiciary’s legal response to this is basically to stick their fingers in their ears and go, “neener, neener, neener!”; They, as a matter of official doctrine, won’t look at evidence that the quorum clause is being violated.

        And that’s just one example of, yes, “actually”.

        1. A good start. Thank you.

          And while I’m here, Brett, thank you for not being snarky. Unlike some, we’re just trying to help.

  6. What might be more interesting, in terms of legal scholarship worth reading, might be an exploration of the actual “role morality” developed by members of the political branches and its relationship to political pressures and institutional structures. The Hastert rule, the effective requirement for 60 votes to pass bills in the Senate, the surprisingly substantive role of the parliamentarian, etc. – these are the true “law” of Congress, and have very little to do with norms and ideals that professional politicians have no reason to adopt, much less read in the first place.

    Maybe you are not doing Siegel’s piece justice, Jonathan, but on what you’ve presented here, it sounds utterly masturbatory.

    1. “Maybe you are not doing Siegel’s piece justice, Jonathan, but on what you’ve presented here, it sounds utterly masturbatory.”

      Maybe you should read it (it’s linked) instead of extrapolating your own views on to it?

      1. I have read it, and I agree with SimonP’s view of it.

        1. Great. Then perhaps you can explain the specific criticisms made by SimonP (for example, the “Hastert rule”) in relation to the article (for example, constitutional role morality).

          I really can’t wait for your expertise on this.

          1. As I read his comment, those things you mention are not criticisms of the article by Siegel, but a suggestion of a different topic that he would be more interested in.

            His only criticism of the article is that it “sounds utterly masturbatory.”

            With that I agree. Siegel makes a number of suggestions for “role moralities” all of which would be almost impossible to implement and impossible to police/enforce even if implemented.

            1. PS

              Even if Seigel’s “role moralities” could be implemented and enforced I am highly skeptical that they would result in any meaningful or useful change.

              1. So, the answer is no. Good to hear.

                FWIW, I happen to think the small section at the end (which is the implementation section) is by ts very nature the weakest; the remainder is excellent. To the extent that you actually read (doubtful) and understood (moreso) the remainder of the piece,* I find your observations … lacking.

                (I say this only because you have singularly failed to have any substantive points that engage with or cite the article, evidencing either reading or understanding at any level).

      2. Look, I’m busy. I’m not going to read an article in order to determine whether it is worth my time to do so. I have to make a judgment, based on what’s presented here, on whether it could be worthwhile. As far as I can tell, it is not, for the reasons I’ve already outlined.

        I note that your response to me makes no attempt to give me any reason to read it (apart from avoiding your snark) and doesn’t even suggest you’ve read it yourself.

        1. ” I’m not going to read an article in order to determine whether it is worth my time to do so.”

          It’s not.

          1. Yeah, why believe people that know about the law and stuff when you can trust Matthew Slyfield, who still can’t identify why something isn’t worth reading, other than it might disturb his precious belief system.

            1. By the same token, why be brow-beaten by a random internet snarker with no demonstrable credentials?

              I don’t trust the judgment or sophistication of most legal academics. I’ve been reading VC too long to do so.

  7. That article was entirely underwhelming. It was like if Salon had a longform startup. Very little attempt to analytically distinguish norms from “conduct I don’t approve of, and no attempt to distinguish Trump’s conduct based on that purported framework.

  8. I’m reminded of George Washington’s Rules of Civility & Decent Behaviour In Company and Conversation
    http://gwpapers.virginia.edu/d…..cript.html

    The last rule I find is quite poetic
    “110th – Labour to keep alive in your Breast that Little Spark of Ce[les]tial fire Called Conscience.”

    The preceding Rules 1 through 109 provide good context for what types of things to be conscious about.

  9. Some of Jonathan Haidt’s work is tangentially related to this topic. See http://www.civilpolitics.org/ and http://www.yourmorals.org/

    In particular, there are two evidence-based recommendations for civil politics:
    1) Improve inter-personal relationships; and
    2) Emphasize cooperative goals vs. competitive goals

  10. A better system than ours is Britain’s, where the Constitution is set by tradition instead of the letter of the law. Here, it’s been letter of the law, and spirit of the law, until recently. The latest generation of Republicans doesn’t follow the spirit, the gaps in the written law that allow the country to function. Per the letter of the law, technically the Senate doesn’t *have* to ever act on anything (as this blog has pointed out). So it can disable a federal agency by refusing to approve commissioners, or disable the courts by not approving judges. This kind of crap would not happen in the U.K.

    1. No, in the UK other kinds of crap happens, instead. So far, I prefer our crap to theirs.

      1. “So far, I prefer our crap to theirs.”

        The important part is “[S]o far.”

        There is a reason that the United States, alone, has successfully implemented a system with a strong executive and a strong bicameral legislature, and that every other county that has tried to emulate our system has failed, whereas countries that use the parliamentary system, generally, have a much better track record.

        It’s because we have developed a strong system of norms and rules that allow the Constitution to work. To the extent that we no longer follow those, then we will fail as well.

        1. The problem here isn’t the decay of norms. It’s that our system has been running for so long that we’ve developed an entrenched, self-perpetuating political class, In turn, due to being in positions of power for so long, they’ve evolved a very effective toolbox of work-arounds, rendering important parts of our constitutional structure futile.

          So, the Constitution is no longer actually working. The system might be, for suitable values of “work”, but the Constitution is being rendered increasingly irrelevant.

          1. “So, the Constitution is no longer actually working.”

            No. The Constitution never worked.

            The Constitution is just words on a paper. To the extent that it “works” it is because people work. Do you get that?

            Nothing in the Constitution keeps the military from overthrowing the government in a coup d’etat. The Constitution doesn’t magically animate and stop that.

            Nothing in the Constitution keeps Congress from declaring war tomorrow on Canada, because Trump didn’t want his name removed from a hotel in Vancouver. What does? Traditional norms (we don’t declare war on allies because we feel like it).

            Nothing in the Constitution, heck, keeps Congress from declaring a war against some random nation, suspending habeas, and quartering troops in your home because they feel like it. What does is long-established norms on, um, the right way to do things.

            You can complain all you want about entrenched interests, but entrenched interests in civility and political norms have kept the nation going under an otherwise unsustainable framework for over 200 years. Pity that you people like you need to throw that out. You have more in common with Lenin than you’ll ever know.

            1. Constitutions “work” when people follow them, and the result is acceptable. Of course they’re “parchment barriers” with no power to compel anybody to follow them.

              But we can still distinguish between their being complied with or broken.

              1. “Constitutions “work” when people follow them,”

                Sure.

                “and the result is acceptable.”

                Um, to whom? And why should results matter, unless you have elected people that care about things, you know, working?

                “But we can still distinguish between their being complied with or broken.”

                Who is this “we” you speak of? You have very idiosyncratic ideas – I do not subscribe to Brett Bellmore’s constitution, which always matches Brett Bellmore’s policy preferences.

                1. No, not really. I really despise the income tax. Clearly constitutional. The 17th amendment was a horrible mistake, but obviously ratified.

                  The written Constitution is more to my liking than what the judiciary have replaced it with, but that doesn’t mean I like all of it.

                  1. Hate to break it to you, but the income tax was constitutional prior to the 17th Amendment; that was just to correct a Supreme Court decision stating otherwise. So that’s the tension with selective history; what you are arguing would be the opposite of what many people would note (that the income tax was constitutional, until a reactionary Supreme Court …. sorry, “the judiciary replaced [the Constitution]” requiring an Amendment.

                    See? Stupidity, all the way down. And, by the way, if the best example you can come up with is an explicit amendment, you kind of prove my point.

    2. The kind of crap that does happen in the U.K. and in Canada and Australia without a stable constitution is that passing fashionable passing storms blow their boats right on to the rocky shore. At least our ship of state has to drag its anchor all the way to its leeward doom.

      1. Yeah I’ve noticed how shipwrecked those countries are. No freedom of speech, no national healthcare, no environmental regulation, gun deaths all the time. Sounds horrible to me too.

        1. Well, you started out right, anyway.

    3. So by tradition in the UK marriage was solely between a man and a woman. Are you sure you want a constitution by tradition?

      1. The Constitution is a procedural document. I was speaking procedurally.

  11. One fundamental problem with democracy is that many will vote for free stuff (at the expense of others) rather than freedom most of the time. Probably most politicians can count, for sure most want to reap the benefits of government “service.” This type of voter and politician can hardly be characterized as rational supporters of the country as a viable entity.

    1. “One fundamental problem with democracy is that many will vote for free stuff (at the expense of others) rather than freedom most of the time.”

      One fundamental problem with the internet is people who demonize their fellow citizens by saying that they are just voting for “free stuff” while failing to see all the ways that they have benefited from this country and this government.

      It’s always easy to see other people’s “free stuff” and impossible to see the “free stuff” you have benefited from.

      1. “One fundamental problem with the internet is people who demonize their fellow citizens” the pot calls the kettle black.

        1. Gee, if I’m a little tired of people who keep saying that the other side (always “Demoncrats” or “The Democrat Party” or some lovely variation on same) is trying to get “free stuff” …

          or that the real RACISM is noting bigotry … or

          “How can it be a dog whistle if you’re hearing it” ….

          or the always-clever “goose/gander” or “pot/kettle” arguments, then yeah. You are exactly the type of person that is bad for this country; moreso because all you do is blame other people.

          Most of us learned better in kindergarten. I suggest remedial classes.

          1. Wow! Two pot/kettles in a row!

            1. Wow! You must think you’re so clever!

              What? Is typing strawman too effortful for you?

              1. I regret disturbing your safe space . . . apparently deep within the fake journalism of the progressive propaganda pumps, i.e., the NYTs, WP etc. Sorry I took up your time.

                1. Woah … “safe space,” “fake journalism,” “progressive propaganda pumps[.]”

                  Poe’s law doesn’t cover it; again, funny, if it isn’t so sad. I recommend setting up a twitter account, post your own thoughts, and people can delight in what they assume to be comedic gold.

          2. Our government has become dysfunctional because almost everyone is trying to get as much “free stuff” as possible.

          3. Our government has become dysfunctional because almost everyone is trying to get as much “free stuff” as possible.

            1. The right loves this narrative. Condemns entitlements, excuses any greed on their own part…

              But many of us feel comfortable enough with the stuff now to vote for what we think is best for America at large.

    2. Why don’t you list for us all the free stuff that everyone but you get.

      1. Looks like the net tax consumers are out in force today.

      2. Looks like the net tax consumers are out in force today.

        1. Looks like you are eager to make negative assumptions about the motives of anyone you disagree with.

  12. An amusing article.

    The author actually believes that federal judges are not ideological. Sad.

  13. Way back there SimonP commented on the role of the parliamentarian in Congress. I have always maintained that Robert’s Rules of Order is a fundamental guarantor of minority rights in democratic systems sometimes swept up in fashionable hysterias or pig-headed idealism.

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