© Copyright by Roger P. Abshire December, 2018 THE PROBLEM OF CONSTITUTIONALIZED DISCRETION ________________ A Dissertation Presented to The Faculty of the Department of Political Science University of Houston ________________ In Partial Fulfillment Of the Requirements for the Degree of Doctor of Philosophy ________________ By Roger P. Abshire December, 2018 THE PROBLEM OF CONSTITUTIONALIZED DISCRETION ________________________ Roger P. Abshire APPROVED: ________________________ Jeremy D. BAiley, Ph.D. Committee Chair ________________________ Jeffrey Church, Ph.D. ________________________ Brandon Rottinghaus, Ph.D. ________________________ George ThomAs, Ph.D. ClAremont McKenna College ________________________ Antonio D. Tillis, Ph.D. DeAn, College of Liberal Arts and SociAl Sciences Department of Hispanic Studies ii THE PROBLEM OF CONSTITUTIONALIZED DISCRETION ________________ An Abstract of a Dissertation Presented to The Faculty of the Department of Political Science University of Houston ________________ In Partial Fulfillment Of the Requirements for the Degree of Doctor of Philosophy ________________ By Roger P. Abshire December, 2018 ABSTRACT The predominant goal of this dissertation is to highlight the problem of constitutionalized discretion, and trace the institutional development of legislative rules of procedures, executive clemency, and judicial equity in American constitutionalism. It argues that the framers of the American constitution included specific grants of discretionary power intended to legitimize and codify, in the loosest sense of the term, what were seen as necessary, yet potentially dangerous, government actions. Though the framers were attempting to curtail the exercise of such discretionary actions by constitutionalizing them, they instead undermined the traditional methods by which these discretionary actions were restrained while failing to provide for adequate constitutional replacements. In support of this argument, this dissertation analyzes a discretionary power from each of the coordinate branches of the federal government which had, prior to constitutional ratification, been a discretionary prerogative within the American political tradition. It utilizes Congress' power to determine its own legislative rules, the President's pardon power, and the equity jurisprudence of the federal courts, and explores each of these mechanisms from their largely unfettered discretionary origins, their subsequent development in enlightenment England and the colonies, through the early state constitutions, and to the federal convention and ratification debates which produced the American constitution. Using this developmental picture, it shows how the American trend to pull necessary state functions into the umbrella of popular government founded on a written constitution lead the framers to undermine their own constitutional project. iv ACKNOWLEDGEMENTS The deepest appreciation is due to my committee chair Professor Jeremy D. Bailey, without whom I would have fallen down any number of theoretical rabbit holes. His steadfast patience and focused guidance helped me navigate the process during a particularly trying period of my life, and has created a debt which I will never be able to repay. Additionally, I would like to thank Professor Brandon Rottinghaus and Professor Jeffrey Church for their dedication to my overall academic success and their service on my committee, and Professor George Thomas for his contributions to my committee and the dissertation project as it moves to the next stage. I also owe thanks to the entire faculty of the University of Houston Department of Political Science for nurturing my graduate education in a more encouraging manner that I could have expected, and for the financial support that made my studies possible. Further recognition is due to Professor Robert A. Carp as both a teacher and mentor who facilitated research experience as a student and encouragement as I worked on this dissertation. I am also thankful for the wonderful graduate student colleagues with which I had the pleasure to work and study alongside over the past few years; in particular, the participants of the weekly TBT meetings and members of the Political Theory Reading Group. My family has supported me throughout this process and is largely responsible for keeping me sane during the times when I was unable to see a path forward and consistently lost my battles with the blank page. Lastly, I must thank my wife Kristina for often bearing a disproportionate share of our personal trials and serving as an unerring partner in the pursuit v of my academic goals. I could not have completed this project without her help and my life would be much less fulfilling without her. vi TABLE OF CONTENTS Chapter 1 – Constitutional Limitations, A New Dimension, and Constitutionalized Discretion Page 1 Chapter 2 - Article I: Determining the Rules of its Proceedings Page 17 Chapter 3 - Article I: The Problem of Legislative Procedural Discretion Page 46 Chapter 4 - Article II: Reprieves and Pardons for Offenses Against the United States Page 68 Chapter 5 - Article II: The Problem of Constitutionalized Prerogative Page 104 Chapter 6 - Article III: The judicial Power shall extend to all Cases, in Law and Equity Page 131 Chapter 7 - Article III: The Problem of Equity Jurisprudence Page 167 Chapter 8 - Conclusion Page 203 References Page 206 vii LIST OF TABLES Table 4.1: The Pardon Power in First Post-Revolutionary State Constitutions Page 79 Table 4.2: The Pardon Power in First State Constitutions After 1788 Page 97 viii To Kristina ix Chapter 1: Constitutional Limitations, A New Dimension, and Constitutionalized Discretion In the Fall of 2013 most American were likely confused by the parliamentary maneuvering in the Senate; several of President Obama's judicial nominations were being held-up by Senate Republicans refusing to agree to even vote on their confirmation, and Senate Democrats were threatening to change the rules of the Senate in order to force a vote. Many Americans might have been surprised to learn that the Senate filibuster, while a longstanding practice, was not constitutionally mandated. To think that the filibuster, which had come to be the defining characteristic of the “world's greatest deliberative body”, was merely an artifice of legislative tradition might come as a shock. Aside from making one curious what other common governmental powers and practices might be equally undefined by the Constitution, it makes one wonder why the framers of the Constitution would have given Congress the power to make and break the kind of legislative rules that come to define it. If, as is the common understanding, the founding generation was so concerned with the arbitrary rule of a distant government, why would the framers of the Constitution have constructed, and the subsequent ratification conventions have acquiesced, in the kind of powers that seem to engender so much undefined power? An underlying principle of the American Founding was that government only had the powers explicitly bestowed upon it by the people. Constitutional drafting and ratification, both in the state and subsequently at the federal level, served as the ultimate articulation of the extent of the authorized powers. The basis for this principle was that a government 1 granted a specific list of powers would be limited to those powers. One problem of a government limited in this way, is that restricting government to an explicit set of powers will inevitably curtail, if not outright eliminate, the ability of that government to address unforeseeable, exigent circumstances. To address this problem, the founding generation explicitly incorporated a number of government powers, some which had traditionally been outside of normal limiting mechanisms, into the constitutional text. This was done in the interest of limiting those powers, in contrast to traditional arrangements, by designating a particular authority that could exercise them and a structure by which these actions might be checked. However, this constitutionalization of traditional discretionary powers has had the opposite effect as American political institutions and norms have developed since the Founding. Rather than weakening these powers in comparison to their traditional usage, their constitutional status has served to strengthen them by marking their usage with a presumption of legitimacy because they are explicitly sanctioned by the Constitution. Typically when scholars think about discretion, it is in the contexts of gaps, or “grey areas”, or extra-constitutional versus constitutional power and action. For example, presidency scholars discuss the “vesting clause” or the degree to which statutory language leaves the details to the executive branch; in the case of Congress, it is the necessary and proper clause or legislation more generally; while for the Courts, discussion revolves around judicial review or the federal rules of procedure. The first example for each of the government branches above, is indicative of the type of power not subject to the direct check of another branch, and that has, at least at one time in the history of the Constitution, been of debatable constitutional legitimacy. Each of the latter are typical of powers with an explicit 2 constitutional grant, but are subject to a direct and equally explicit check from a coordinate branch. These two categories are often subject to political and scholarly debate; however, a third category exists which is far less considered