8 .CONSTITUTIONAL THEORY, THE UNITARY EXECUTIVE, AND THE RULE OF LAW

Abstract

This chapter examines theories of the unitary executive and what these theories import for the rule of law and the future of constitutional theory as a whole. This broader context of executive power has three parts. One is an institutional context that includes the Congress, the courts, and institutional norms like democracy and the rule of law. Another is a substantive context, directed to constitutional goods or ends to which constitutional institutions are committed. A third is a philosophical context, the view of the human good and the human condition that is believed to justify the constitutional entirety of substantive goods and institutional means. The chapter asserts that post-Bush, executive power theorists will have to rethink the connection between power, the ends of power, and the character of those who wield power, as such a connection can be established only by reconnecting constitutional institutions to constitutional ends.