Officers' Rights: Toward a Unified Field Theory of American Constitutional Development

The changing rights of legally designated officers provides a comprehensive framework for following American constitutional development over time, in both public and private settings. Rights are defined as judicially enforceable claims on the person or actions of another; development, as enduring change in constitutional provision, structure, and doctrine. It is proposed that constitutional development as a historical process has consisted of a shift in the balance between the rights of officers and the rights of citizens. The framework is demonstrated empirically in connection with the Bill of Rights, federalism, and the separation of powers. Officers' rights is recommended as a method for studying constitutions comparatively and for linking constitutional development to other political events and phenomena like social movements and parties. In the following article I suggest a new way of thinking about American constitutional development. I seek an understanding of the U.S. Constitution over time that is interpretively comprehensive, doctrinally agile, and historically coherent. By interpretively comprehensive, I have in mind provisions expressed in the constitutional text and those unspecified but historically implemented as matters of law. By doctrinally agile, I mean applicable to the twists and seeming anomalies of constitutional decisionmaking as well as to major turning points. By historically coherent, I refer to the full course of constitutional development, within which the framing at Philadelphia represents only a critical episode. The article was completed for publication some months before the unexpected controversy addressed by the United States Supreme Court in Bush v. Gore (2000), and except for this introduction it will remain unchanged. One could not, however, find a clearer illustration of officers' rights in opposition to the rights of citizens than the tangle created by Florida Secretary of State Katherine Harris, local canvassing boards, state legislators, appointed electors, and the judges and Justices at all levels. The presentation as written, including the remarks on the future of judicial power, applies in every significant detail to the circumstances, contending principles, and resolution of that case. The framework proposed builds on a simple design, centered on two familiar concepts. The first concept is office, the formal positions from which governance is conducted in diverse settings; office also implies the existence of non-office, of, so to speak, "mere citizenship." The second concept is rights, defined as the legitimate claims one person may make on the person or actions of another. These concepts are juxtaposed to analytically recreate the project of constitutionalism over time. By way of implementation, I will advance a single hypothesis concerning their interplay: American constitutional development has consisted of a shift in the balance between rights enjoyed by virtue of office and rights enjoyed by virtue of citizenship. This hypothesis involves a crucial change in the way we think about office and rights and their relation to each other. Whereas office is usually understood to entail "powers" rather than rights, the approach here dissolves that distinction into a single array of enforceable claims. Note that a single array does not imply claims of equal force. On the contrary, the intense historical charge of AngloAmerican rights derives from their tenaciously hierarchical ordering. There are several reasons for such an effort. One is a persistent gap between historical-institutionalist studies of constitutional politics, largely empirical in their thrust, and studies in legal history and constitutional law, where the deepest impulses are normative. A second is the attraction of synthesis across institutional arenas, exhibited, for instance, in constitutionally related formal modeling-I am thinking here of work on statutory review and on party history-which, however, through a different theoretical agenda, downplays historical transitions (Ferejohn & Weingast 1992; Aldrich 1995). …