Constitutional Fidelity and Interbranch Conflict

This paper considers the significance of the American Constitution's distinctive structuring of the branches for our understanding of constitutional purposes generally, and for executive prerogative as regards war powers, more specifically. I argue that constitutional theories which emphasize constraint as a primary conceptual category are inadequate, and I instead argue that constitutional fidelity starts with the effective pursuit of proper government purposes. From an examination of the political conditions supporting the operation of the three branches, I suggest that the Constitution's purposes include the establishment of a system of interbranch deliberation as a means, and the realization of a distinctive moral vision of political relationship, as an end. This moral vision of political relationship prizes independence and mutuality in the pursuit of common goals, and tolerates and even welcomes contentiousness about constitutional meaning as a distinctive moral good. Finally, I offer a few considerations on how such considerations might lead us to a reworked conception of executive prerogative as regards war powers.

I

Why should we understand constitutionalism in terms of proper purposes? Usually, constitutional theorists argue as if constraint is the fundamental category for understanding constitutionalism. Jon Elster tells us that constitutions can be understood primarily as devices of constraint, necessary for overcoming "the problems of passion, time-inconsistency, and efficiency."¹ Giovanni Sartori understands that "constitutions are, first and above all, instruments of government which limit, restrain and allow for the control of the exercise of political power."² John Rawls, too, understands constitutionalism as a guarantee that "certain basic political rights and liberties" will be taken "off the political agenda . . . thereby establishing clearly and firmly the rules of political contest."³ This understanding is not the same as one which emphasizes the constitution's fundamentality (or supremacy). We can accept the Constitution's supremacy without elevating constitutional constraint to political supremacy. John Marshall is perhaps the most significant jurist for developing this distinction — he contributed greatly to the development of the idea of the constitution's supremacy, yet his notion of constitutionalism was oriented, not around constraint, but around the supremacy of constitutional purposes.⁴

An understanding of constitutional fidelity like Marshall's, one which emphasizes purposes over constraint, is more consonant with the framers' understanding. The framers were almost obsessed with "energetic" government, government with the capacity to pursue the ends that are properly those of government.⁵ They understood, as we understand today, that political freedom requires more than limited government. In fact, sometimes government will have to act strongly to create the conditions for liberty.⁶ An understanding of constitutional fidelity which includes the effective pursuit of purposes like security, the general welfare, prosperity, human dignity, freedom, and equality is not inconsistent with the idea of constitutional constraint, but it does require us to reformulate what we mean by constraint. Instead of understanding constraint as the sine qua non of constitutional government, we can understand it as a mechanism for focusing power onto its appropriate objects. Sotirios Barber has eloquently articulated this alternative conception: he speaks of constitutional constraints as, "derivative and secondary, not fundamental; they were the conduits or channel markers of a dedicated or focused program. These channel markers helped to define the program by setting it apart from others, and in this way they negated the others."⁷ A government which does not observe due process guarantees, for example, will divert its power towards the persecution of innocent people — an improper purpose.

The advantage of understanding constitutional government according to its purposes is that such an understanding gives us a richer standpoint from which to evaluate constitutional fidelity. In addition to evaluating whether or not government adheres to formal procedural and substantive limitations, we can evaluate how effectively government is pursuing its purposes. Among those purposes of the American Constitution, I would like to posit two not often discussed. I suggest that the institutional relationships the Constitution establishes can lead us to an appreciation for the value of interbranch deliberation and towards a distinctive moral understanding of political relationship.

II

Although the preamble, the list of rights in the Bill of Rights, and the powers granted to government...