On the Need for a Theory of Constitutional Ethics

Publication Year
2000

Type

Journal Article
Abstract

For decades, constitutional theory has primarily focused on the judicial interpretation of rules. The Court alone would deliberate on constitutional values, and would then translate those values into judicially enforceable rules that elected officials were to follow. Within the boundaries of those constitutional rules, the unprincipled struggle of interests could reign. Such a model of the Constitution as a set of externally enforced rules is both normatively and empirically problematic. The judicial perspective on the Constitution is only a partial perspective, and it must be supplemented with an understanding of the constitutional practices of the other branches of government. In particular, the recent presidential impeachment raised a number of constitutional issues that cannot be adequately resolved within a model of the Constitution as external rules, including problems of constitutional fidelity, propriety, and discretion. Theories of judicial interpretation of the Constitution need to be supplemented with a theory of constitutional ethics.

Journal
The Good Society: A PEGS Journal
Volume
9
Issue
3
Pages
60-66