Constitutional Decision-making Outside the Courts

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 19 No. 4

Constitutional Decision-Making Outside the Courts

Michael J. Gerhardt

Introduction

Constitutional scholars agree about remarkably little. We even disagree about what counts as the Constitution. For example, many constitutional scholars believe that the Twenty-Seventh Amendment is a lawful addition to the Constitution;[1] but many other scholars believe that the amendment was approved by dubious and probably illegitimate means. Nor do they agree on whether the process by which it was added to the Constitution is amenable to judicial review. Constitutional scholars also sharply disagree about the appropriate methodology for interpreting the Constitution. Constitutional scholars can, however, agree on at least one thing--the very thing that brought us together for this Symposium--the authority of H. Jefferson Powell as a constitutional scholar. When Professor Powell speaks, people, particularly constitutional scholars, should heed his call. Professor Powell's erudition, eloquence, research, and insights about constitutional law are, at least in my judgment, unparalleled among my generation of constitutional scholars. So, when Professor Powell speaks about foreign affairs, it behooves us to listen and to learn.

Professor Powell is distinctive (and distinguished) because he is one of the few constitutional scholars who have contributed and written extensively about a subject of keen interest to me--the Constitution outside of the Court.[2] Legal scholars are regrettably preoccupied with the work of the federal courts, particularly the U.S. Supreme Court. I will not speculate as to why this obsession persists. Instead, my concern is with its costs. In particular, this obsession leads to a lack of appreciation for the extent to which national political leaders deliberate over, and even shape, constitutional meaning. As Professor Philip Bobbitt indicated, no systematic analysis of the quality and significance of these deliberations has yet been undertaken.

My contribution to this Symposium will not fill this void. Instead, my focus will be on the risks and costs of the scholarly preoccupation with the Court, particularly with respect to how constitutional authorities other than the Court take the Constitution into account in deliberating over questions pertaining to constitutional meaning and their constitutional authority. One such question is whether the Constitution constrains or guides decision-making outside the courts? If so, how does it do this? To answer these (and other fundamental questions about the Constitution outside the Court), we need to examine closely what national political authorities say and do about the Constitution.

I. The Traditional Modalities of Constitutional Argumentation

At the outset, what national political leaders say about the Constitution confirms Professor Bobbitt's trenchant insight, reiterated in this Symposium, that they employ all six of the traditional modalities of constitutional argumentation.[3] Three examples illustrate the deployment of these modalities in constitutional discourse outside the courts. The first example is the federal impeachment process. Throughout the impeachment proceedings against President Bill Clinton, both sides made arguments based on text, history, precedent, ethos, structure, and consequences.[4] Those supporting President Clinton's ouster made the following arguments: First, the constitutional text supports a single standard of impeachable misconduct. Invariably, those seeking President Clinton's removal argued that there is only a single, constitutional clause spelling out the conditions for removal of those officials subject to it. In particular, they inferred a single standard for impeachment in the Constitution's particular provision subjecting "the President, Vice-President, and officers of the United States" to possible removal for "Treason, Bribery, or other high Crimes or Misdemeanors."[5] Second, proponents of the President's ouster argued that history supported treating his misconduct as grounds for his removal. They pointed out, for instance, that the Framers' generation considered violating oaths to constitute a serious transgression,[6] and the Congress had previously removed federal judges for misconduct similar to the President's misconduct.[7] Third, President Clinton's detractors argued that judicial precedent counted against him as well. In particular, they observed that the Supreme Court generally had left matters relating to the President's (and other impeachable officials') removal to the final, non-reviewable decision-making of the Congress.[8] Fourth, the American ethos called for President Clinton's removal. In particular, they argued that respect for the...