The Unfulfilled Promise of the Constitution in Executive Hands

Many leading constitutional scholars now argue for greater reliance on the political branches to supplement or even supplant judicial enforcement of the Constitution. Responding to our national preoccupation with the judiciary as the mechanism of constitutional enforcement, these scholars stress that the executive and legislature, too, bear responsibility to think about the Constitution for themselves and to take steps to fulfill the Constitution's promise. Joining a debate that goes back at least as far as Marbury v. Madison, current scholars seek to reawaken the political branches to their constitutional potential, and urge the Supreme Court to leave the other branches room to find their constitutional voices. Anyone contemplating taking the Constitution away from the courts, or claiming that the executive has power to act on a different view of the Constitution from the Court's, or even those who merely recognize a role for judicial deference to the political branches, must closely consider the political branches' actual practices.

Yet the new theoretical scholarship has largely overlooked questions of how the political branches effectuate the Constitution, or how they might do a better job of it. Constitutionalism within the executive branch has been particularly ignored. One of my aims here is to illuminate that dim corner of our national constitutional practice.