Neil Siegel (Duke University School of Law) has posted Sustaining Collective Self-Governance and Collective Action: A Constitutional Role Morality for Presidents and Members of Congress on SSRN. Here is the abstract:
In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution whose vindication requires more than compliance with legal rules: securing the American conception of democracy as collective self- governance and creating a reasonably well-functioning federal government. Given its close connection to those purposes, a role morality for presidents and members of Congress is appropriately described as constitutional, not merely political. This Article then proposes some rhetorical, procedural, and substantive components of constitutional role morality, including a commitment to consult the political opposition before taking important actions and a rebuttable presumption in favor of moderation and compromise. The Article also explains how different actors in the American constitutional system should execute their professional responsibilities if they are to make it more, rather than less, likely that such a role morality will eventually be adopted and maintained. A final part anticipates objections, including the concern that the vision offered here faces significant implementation problems.
And from the article:
One of the first obligations that a constitutional role morality would likely impose on federal elected officials—the president above all others, but members of Congress as well—is to seek ways of reaching out rhetorically to Americans who voted against them. (In that regard, Jefferson’s First Inaugural Address, discussed above, is a model.156) Moreover, a role morality would counsel officials to continue reaching out rhetorically throughout their time in office. Under no circumstances would a role morality advise elected officials to gratuitously alienate non-supporters by, for example, calling them names or mocking their identities or way of life. Presidential candidate Hillary Clinton likely fell short in this regard when she said at a fundraiser that “you could put half of Trump’s supporters into what I call the basket of deplorables.”
And from a bit later:
First, moving beyond rhetorical outreach, elected officials should have a responsibility to take seriously the concerns of non-supporters, the best interests of the nation, and the long-term health of their institutions by considering each of them in good faith. There ought to be some obligation to balance one’s partisan and electoral interests against the interests of political opponents, the nation as a whole, and the institution in which one serves. Of course, this does not mean that politicians should not pursue their partisan and electoral interests. For example, a president ought to have due regard for the future of the political party that he or she leads; the party constitutes the primary institutional means of continuing his or her policies after leaving office. The modest suggestion here is only that politicians should not exclusively consider partisan and electoral interests.
Second, electoral winners should, at least as a general matter, have a duty to consult with opposition leaders before making important decisions or taking significant actions. In addition to building trust and facilitating cooperation, consultation is an important way to ensure that one’s beliefs about political issues are epistemically responsible, meaning that they are formed and maintained without being distorted by ideology, wishful thinking, framing effects, confirmation bias, etc.163 A failure to consult is part of what we have seen in the political branches in recent years in the area of judicial nominations.164 As a result, both collective self-governance and the effective functioning of the federal government have arguably suffered.
Third, electoral winners should have an obligation to deliberate in good faith with opposition leaders when considering whether to take important actions. This does not mean that electoral winners should not ultimately act on their agendas. It does mean, however, that they should ordinarily not act before first attempting to enlist the support of, and then negotiate with, the other side. That is a more demanding obligation than the aforementioned proposals to consider and consult.
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An alternative approach might emphasize virtues and character rather than a deontologically focused role morality. For a very preliminary set of reflections, see The Aretaic Turn in Constitutional Theory. Of course, it is important to articulate the norms of constitutional morality that should govern executive and legislative actors, but even if such norms are articulated and widely affirmed, it seems unlikely that they can be efficacious if elected officials have the vices of political cowardice, bad temper, and avarice. Another contribution of an aretaic approach is its focus on human flourishing as the central aim of constitutional politics.
Read Siegel's important and elegant article.