Recovering the political constitution: Nonjudicial interpretation, judicial supremacy, and the separation of powers

This project argues that an overlooked transformation has taken place in the ways that members of the federal legislative and executive branches contribute to constitutional interpretation. Throughout the nineteenth century, Congresses and Presidents engaged in sustained and informed discussions about constitutional meaning; today, these actors generally serve a subordinate and derivative interpretive role---applying legal rules and standards developed by the courts. Current constitutional conflicts between the branches of federal government tend to be either litigated or resolved through political compromises that elide constitutional issues. These developments are significant because they provide insight into a number of current political problems. Contemporary political actors' difficulties in confronting critical institutional responsibilities (such as impeachment and making war), enduring political and scholarly dissatisfaction with the role played by the federal courts in our separation of powers system, and a general impoverishment of our constitutional discourse can all be traced, in part, to the abandonment of what I describe as a "political constitution" in favor of a Constitution understood primarily in legal terms. The first part of this dissertation outlines a general argument about how nonjudicial interpretation of the Constitution has evolved, and reflects on the importance of this development. Part II consists of three case studies that illustrate my claims, including analyses of the presidential veto, the constitutional processes for engaging in war, and congressional contempt procedures. Part III sets out a case for the normative appeal of---and prospect of retrieving---the political constitution.