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Constitutional Law

Constitutional Bad Faith

The full text of this Article may be found by clicking on the PDF link below.

The concepts of good faith and bad faith play a central role in many areas of private law and international law. Typically associated with honesty, loyalty, and fair dealing, good faith is said to supply the fundamental principle of every legal system, if not the foundation of all law. With limited exceptions, however, good faith and bad faith go unmentioned in constitutional cases brought by or against government institutions. This doctrinal deficit is especially striking given that the U.S. Constitution twice refers to faithfulness and that insinuations of bad faith pervade constitutional discourse.

This Article investigates these points and their implications for constitutional law, theory, and politics. Good faith norms, the Article explains, are unevenly enforced throughout constitutional doctrine. Yet in spite of, and partly because of, their uneasy status within the courts, these norms perform a variety of rhetorical and regulative functions outside the courts. Moreover, different conceptions of constitutional bad faith have come to be associated with different constitutional actors; sorting out these conceptions helps to illuminate the architecture of constitutional debate. The Article further explores how sacralization of the Constitution pushes interpreters not only to insist on their own fidelity but also to see competing views as treacherous or deceitful. The overarching obligation to keep faith with the canonical text, in other words, contributes to a culture rife with suspicion of interpretive bad faith.

 


* Associate Professor, Columbia Law School. For valuable comments on an earlier draft, I thank Jane Baron, Will Baude, Josh Blackman, Rick Brooks, Jessica Bulman-Pozen, Josh Chafetz, Rosalind Dixon, Dick Fallon, Robert Ferguson, Joey Fishkin, David Fontana, Stephen Gardbaum, Vic Goldberg, Zohar Goshen, Kent Greenawalt, Bernard Harcourt, Robert Hillman, Rob Jackson, Vicki Jackson, Jeremy Kessler, Jody Kraus, Ethan Leib, Henry Monaghan, Aziz Rana, Richard Re, Alice Ristroph, Russell Robinson, Mike Seidman, Kate Shaw, Doug Spencer, Peter Strauss, Kendall Thomas, Ryan Williams, Maggie Wittlin, and the editors of the Harvard Law Review, as well as workshop participants at Cardozo, Columbia, NYU, San Diego, Temple, and UConn law schools. For excellent research assistance, I am grateful to Matt Danzer, Benjamin Dye, and Nick Reck.