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Constitutional Folk Theories as a Guide to Constitutional Values? The Case of the Legislative Veto

Edward H. Stiglitz

The Journal of Legal Studies, 2019, vol. 48, issue 1, 45 - 79

Abstract: Abstract values often motivate doctrines in important areas of constitutional law. A jurist favors one doctrinal position over another because, under some implicit positive theory, it promotes a consequential value, such as liberty or democratic values. Yet this jurisprudential posture falters if theory is incomplete or inapt. As an object lesson into the perils of incomplete functionalism, I consider the relationship between the so-called unitary executive and democratic values. I acknowledge a theoretical account of the unitary executive along the lines of the one that animates judicial decisions; I then argue that, viewed in a more complete setting, judicial decisions seemingly promoting a unitary executive may engender pluralism and undermine the value of accountability. A state-level empirical analysis of this issue questions the soundness of democratic values as a motivation for pursuing a unitary executive. I conclude with thoughts on the role of courts in managing functionalist constitutional values.

Date: 2019
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