dispatch, and responsibility, similarly the collective Congress promotes deliberation, compromise, generality, and the common good. Congress is the institution for protecting these civic republican values.300 As explained above, the collective Congress relates to the creation of a republican form of government. It allows the people to choose representatives to exercise the legislative power, mediating the different interests of society for the general good. Although the Constitution does not specify the particular content of laws, Congress is structured to promote legislation that serves the good of the people, not narrow interests.
To be clear, the collective legislative power is no guarantee that laws will promote the general good. Rather collective legislative power is our Constitution’s mechanism for identifying and pursuing the general good.
and notes“[t]here is . . . a close and perpetual interworking between the textual and the relational and structural modes of reasoning, for the structure and relations concerned are themselves created by the text, and the inference drawn from the must surely be controlled by the text.”Id.;cf. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV.
603, 624–25 (2001) (expressing skepticism about structural and formal methods that try “to assign specific exercises of government authority based on the general normative reason for the power allocation”).
299. See Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1216 (1992) (explaining why“only a
holistic approach to constitutional analysis gives coherent meaning to all the provisions of Article III”).
300. A significant literature exists on “civic republicanism” and its scope and applications.
See Cass R. Sunstein, Beyond the Republican Revival, 91 YALE L.J. 1539, 1540–41 (1988)
Representatives working together must first identify the public good and then must compromise on how to achieve those goals. Invariably in a large and diverse nation, ongoing disputes will occur both about the public good and the means for achieving it. The collective Congress and democratic representation serve these values of working for the general good, even if they do not always achieve them. As economist and philosopher Friedrich Hayek explained:
Liberalism is a doctrine about what the law ought to be, democracy a doctrine about the manner of determining what will be the law. Liberalism regards it as desirable that only what the majority accepts should in fact be law, but it does not believe that this is therefore necessarily good law.301
In a similar manner, the unitary executive is designed to promote energetic execution—unitariness is the Constitution’s mechanism for good administration of the laws. The fact that a unitary executive cannot always achieve this ideal does not undermine the importance of a unitary executive.
Collective decisionmaking helps to identify and promote the general good in several ways. A multimember lawmaking body requires cooperation, negotiation, and deliberation. As James Madison stated, the effect of lawmaking by representatives should be “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”302 The legislative process refines and enlarges disparate public views. Through the exercise of reasoned debate, different interests may be brought together and negotiated in order to yield an enlarged view of the public good. “[I]t is the reason of the public alone, that ought to control and regulate the government. The passions ought to be controled and regulated by the
government.”303 Alexis de Tocqueville similarly argued that only in a
democratic form of government would the public have a reason to educate themselves and to form the proper opinions for their governance.304
As discussed above, the Framers frequently referred to regulating, umpiring, and aggregating interests—all suggesting that the legislative
301. HAYEK,supranote 40, at 103;see also id.at108 (“But if the prospects of individual
liberty are better in a democracy than under other forms of government, this does not mean that they are certain.”).
302. THE FEDERALIST NO. 10, supranote 11, at 46 (James Madison). 303. THE FEDERALIST NO. 49, supranote 11, at 264 (James Madison).
process would require deliberation to achieve some collective benefit. Importantly, neither the executive nor the courts could properly achieve these ends. As Hamilton noted, “The differences of opinion, and the jarring of parties in [the legislature], though they may sometimes obstruct salutary plans, yet often promote deliberation and circumspection; and
serve to check excesses in the majority.”305Collective representation in
the legislature serves the beneficial purpose of providing a “constitutional averaging process” that weighs and balances various interests in order to produce legislation.306This process was designed to legislate for the general good by mediating the interests of factions, thwarting oppressive majorities, and controlling powerful minorities.