Contested Roles, Interpretation,
and the Framer's Point of View
Constitutional crises come in all shapes and sizes. The 2000 Florida election crisis raised questions about the proper roles of state and federal courts, state and federal law, and various state officials in administering federal elections. In 1974 a constitutional crisis arose over the extent of the president's “executive privilege.” The American Civil War was a constitutional crisis on a far greater scale. These are the sorts of crises that make headlines and history books. But there are also smaller, more mundane “crises” that occur so often we hardly recognize them as such. The pitched battles every time a Supreme Court nominee is confirmed or rejected reflect lingering controversy over what the proper role of the Court is, a controversy that continues with each controversial decision. What all of these crises have in common is that the constitutional rules and principles that are supposed to allocate power and define roles are themselves contested.
This final chapter applies the idea of a legislative point of view to situations where the institutional roles that political actors occupy are themselves contested. I claim that the legislative point of view is useful not only for making particular decisions about the use of force, but also for defining the roles that political actors occupy where these are vague and contested. If “No cruel or unusual punishment” is a contested principle, so is “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”1 Just as there is disagreement about which punishments are cruel, so also there is disagreement about what the “judicial Power” entails. It is not uncommon for political actors to confront both substantive and jurisdictional contested principles at the same time. Locke is a particularly apt theorist to consider when the meaning of the constitution is itself in question. The political disputes of his own day involved a constitutional crisis about the relative roles of king and Parliament. Locke's political theory called for each person to exercise sober judgment in such situations.
1 From the Eighth Amendment and Article 3, Section 1, of the United States Constitu-