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Tuesday, March 28, 2017

Institutional Loyalties in Constitutional Law

My latest article, with Aziz Huq, is now available on SSRN.  It is entitled “Institutional Loyalties in Constitutional Law.”  Given what is happening in Washington in the first period of the Trump Administration, the question of when we want officials to be loyal to their institution and how to generate that loyalty is of immense importance.  Here is the abstract:

In Federalist 51, James Madison offered what has become the canonical account of how the separation of powers would pit branch against branch for the greater good. The officials of an institution would and must act on behalf of their institution for the Constitution to function properly. In Madison’s account, ensuring the presence of the right amount of institutional loyalties would serve as a durable and plausible mechanism enforcing institutional boundaries and ensuring a stable constitutional order. But modern scholars take a more skeptical view of his theory. Faced with forces or figures that threaten basic institutions of the constitutional system, their energies have primarily been devoted to predicting that the Constitution will prove fragile because institutional loyalties are rare in practice, and, additionally, difficult to create as a matter of institutional design. This Article aims to re-establish institutional loyalty as an object of serious analysis for constitutional scholars and jurists. Its core thesis is that institutional loyalty can be identified, evaluated and generated as a central feature of contemporary American constitutional law. We provide a definition of institutional loyalty, and situate the concept in the American constitutional past and present. We further marshal evidence that institutional loyalty can be decisive to contemporary inter-branch dynamics, even if its effects are inconstant and often asymmetrical. We further argue that it is a mistake to view institutional loyalties as a constitutional end in themselves. It is true, as Madison predicted, that such loyalty can at times contribute to widely shared constitutional goals in some instances. But, contra Madison, we show that institutional loyalty can also undermine structural goals at other moments. Calibrating the appropriate mix of such loyalties across the branches therefore presents a considerable, if unavoidable, array of challenges. To that end, the Article offers a comprehensive taxonomy of causal mechanisms by which institutional loyalty can be generated within each of the three branches. Working branch-by-branch, we identify examples of institutional reforms capable of modifying institutional loyalty in ways that promote widely shared constitutional ends.

Posted by David Fontana on March 28, 2017 at 06:20 AM | Permalink

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