Mariah Zeisberg

War Powers: The Politics of Constitutional Authority

Chapter 1: Who Has Authority to Take the Country to War? 1 Chapter 2: Presidential Discretion and the Path to War: The Mexican War and World War II

Should We Elect the US Supreme Court

Extensive political science research reveals that the decisions of the US Supreme Court are deeply political. And both advocates and critics of judicial elections concede that partisan elections are a democratic method of judicial selection. Does the value of democratic representation mean that US Supreme Court Justices should be selected through partisan elections? I argue not. Partisan judicial elections are actually far poorer institutional mechanisms for capturing the judgment of the people on legal matters than has been recognized. The role of parties in structuring a campaign distorts the deliberative environment surrounding judicial elections, creating significant barriers to voters expressing a judgment on matters of legal meaning. The kind of distortion is best understood through reference to a processual criterion of deliberative democracy, which provides a fitting normative template to ground theoretical inquiry into the reason-giving possibilities of existing democratic institutions and practices. Hence, answering why the US Supreme Court should not be elected on democratic grounds also reveals new insights about the role of parties in sustaining (or subverting) deliberative democratic ideals.

Constitutional Fidelity and Interbranch Conflict

This paper considers the significance of the American Constitution’s distinctive structuring of the branches for our understanding of constitutional purposes generally, and for executive prerogative as regards war powers, more specifically. I argue that constitutional theories which emphasize constraint as a primary conceptual category are inadequate, and I instead argue that constitutional fidelity starts with the effective pursuit of proper government purposes. From an examination of the political conditions supporting the operation of the three branches, I suggest that the Constitution’s purposes include the establishment of a system of interbranch deliberation as a means, and the realization of a distinctive moral vision of political relationship, as an end. This moral vision of political relationship prizes independence and mutuality in the pursuit of common goals, and tolerates and even welcomes contentiousness about constitutional meaning as a distinctive moral good. Finally, I offer a few considerations on how such considerations might lead us to a reworked conception of executive prerogative as regards war powers.