Folk Theories, Dynamic Pluralism, and Democratic Values

Abstract

Abstract constitutional values often motivate separation of powers doctrine and doctrines in other areas of law. A jurist favors one doctrinal position over another because, under some implicit positive theory, it promotes a consequential value: for example, abstract liberty, rule of law, 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 first formalize a theoretical account of the unitary executive along the lines of the one that animates judicial decisions; I then show that, viewed in a more complete setting, judicial decisions seemingly promoting a unitary executive may engender pluralism and undermine the value of accountability. I empirically examine the relationship between electoral accountability and innovations relating to one such offensive institution -- the legislative veto -- in the context of the American states between 1950-2010. I find that the offending institution of the legislative veto is, if anything, associated with stronger, not weaker, executive accountability for administrative actions, questioning 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.