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Three-Branch Constitutional Interpretation

Susan Burgess makes a significant contribution to the surprisingly skimpy literature on "departmentalism": the theory that constitutional law is not the special province of the judiciary but is, instead, hammered out by all three branches and the states. Despite two centuries of overwhelming evidence that supports her thesis, most law school professors stick doggedly to the belief that case law is all that matters and that the U.S. Supreme Court acts as the final voice on constitutional questions. Political science professors, who might be expected to bring a broader perspective, generally toe the law school line. As a result, we teach something that exists only in the classroom. Critics of departmentalism generally fear that it will produce legal chaos (possibly anarchy) and a disrespect for the Constitution. This book by Burgess is important because it helps to dispel such fears. Independent assertions of constitutional interpretations by Congress and the president help to heighten consciousness of the Constitution and to instill respect and confidence in the outcomes of conflicts. After a short introduction into the meaning and history of three-branch interpretation, Burgess focuses on two specific issues— abortion and war powers—to explore a basic question: "Is constitutional authority broadened and the rule of law strengthened when Congress practices departmentalism" (p. x). As Burgess notes, the theory of judicial supremacy has little application to war powers because the Court largely defers to executive and legislative judgments and accommodations. In a climate of judicial self-restraint and presidential initiatives to involve the nation in war, Congress reacted by passing the War Powers Resolution of 1973 to reassert its own notion of legislative prerogatives under the Constitution. The debate over the allocation of the war power took place in the political arena, as executive officials and legislators advanced their competing claims. Although the War Powers Resolution states that it does not alter the constitutional authority of the President and Congress, the statute clearly "challenges the executive's interpretation of the Constitution" (p. 69) and President Nixon vetoed the bill largely on constitutional grounds. The vote to override Nixon and the legislative history before that is replete with comments from sponsors who felt compelled to restore legislative power. Efforts to bring war-power cases to the courts during the Reagan and Bush administrations have all been turned back by judges who counseled litigants to use the formidable legislative weapons available to Congress and stay out of the courtroom. Constitutional interpretation by nonjudicial actors in the war powers area did not, Burgess says, "lead to greater skepticism about the rule of law as