Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design
29 Pages Posted: 30 May 2018 Last revised: 23 Aug 2018
Date Written: May 27, 2018
How should constitutional designers address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government? I offer three general observations about this difficult question of constitutional design. First, it is not at all clear that a constitutional designer ought to expend effort on creating accountability mechanisms to address apex criminality. Second, if a designer does choose to address the question, she must opt between two highly imperfect options—a ‘legal’ mechanism embedded in a nonpartisan body such as a prosecutor’s office, or a ‘political’ mechanism, which runs through an elected body such as a legislature. There is no simple answer to the question of which is optimal. Third, a better way to approach the constitutional design question may be in terms of the kinds of political culture that will likely unfold under a new constitution. Even if a designer cannot easily optimize some single metric of national welfare, she can make an intelligent judgment about the character of political life she hopes to inspire.
Keywords: Impeachment; corruption; constitutional design
Suggested Citation: Suggested Citation