Comparing Constitutional Bad Faith
8 Pages Posted: 14 Feb 2016 Last revised: 30 Mar 2016
Date Written: February 12, 2016
This short essay responds to David Pozen's Constitutional Bad Faith, a rich, insightful, and highly original article identifying, and then exploring the causes and consequences of, two gaps in American constitutional culture. The first is between the scarcity of good faith principles in constitutional doctrine and their near-ubiquity in nonconstitutional doctrine, especially in private and international law. The second is between constitutional doctrine and constitutional discourse outside the courts, where allegations of bad faith are legion.
The essay begins by raising a question about Pozen's emphasis on judicial underenforcement of good faith norms in constitutional law and suggesting that, for certain structural or "architectural" reasons, there may be fewer such norms here in the first place than in private and international law. It then mostly supplements his analysis by considering each of the two gaps in turn from a variety of comparative perspectives. With respect to the constitutional/nonconstitutional law divide, it asks whether the marginal status of bad faith is distinctive to American constitutional doctrine and, if so, what might explain this. On the constitutional doctrine/discourse disconnect, it argues that the greater amount of bad faith talk outside the courts in the United States than elsewhere is significantly a function of alternative conceptions of judicial review, in which politicians are viewed as problematic or privileged claimants respectively. It also contends that the gap is exacerbated by the inflammatory combination in the United States of life tenure and political appointment for federal judges with the difficulty of amending the Constitution. Finally, the essay considers whether this second gap is distinctive to constitutional bad faith or whether it is also found in private and international law.
Keywords: constitutional law, good faith, private law, international law, judicial underenforcement, constitutional discourse
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