9 - The Values of Democracy and the Separation of Powers: Principled Foundations for Constitutional Perspectivalism

Summary

Frederick Schauer has maintained that the standpoint of the designer of a decision-making environment is quite different from the standpoint of a decision maker within that environment.> If this is the case, then we must distinguish judicial perspectivalism from what I shall call “constitutional perspectivalism” Constitutional perspectivalism is the thesis that those who design and protect the decision-making institutions of the state – including judicial institutions – occupy a role that is characterized by reasons for action that are inapplicable to those in other roles.

The constitutional role is a nebulous one because, unlike the judicial role, it no longer has a distinct set of occupants. In the absence of the framers of the Constitution, the task has fallen to those who periodically step out of their other roles for the purposes of creating, evaluating, or policing decision-making systems that are essentially selfexecuting. Thus, the constitutional perspective is sometimes occupied by the legislature (most obviously, for example, the Senate when it votes on the appointment or impeachment of a judge); sometimes by appellate court judges and justices (when they evaluate the decisions of lower court judges); sometimes by political activists; sometimes by lawyers, legal scholars, and philosophers; and quite often by journalists and political pundits. Anyone who judges the manner in which judges execute their responsibilities, for example, takes on the constitutional role. If such a role is perspectival – that is, if it generates reasons to criticize, discipline, or impeach individuals who do the right thing from a different perspective – then it raises the dilemma with which we began.