I begin this Essay by identifying some problems with conducting an empirical inquiry into Congress's performance in constitutional matters. I argue that there is actually only a small set of issues for which we have a reasonably clean record to evaluate. With the problems I have identified in the background, I then examine some aspects of Congress's performance in the impeachment of President William J. Clinton and, more briefly, some aspects of its response to a presidential military initiative taken without formal prior congressional endorsement. I conclude that Congress's performance in the impeachment, however flawed, was reasonably good, and that its performance in the war-powers context may have larger flaws but be reasonably good even so. Relative to the Supreme Court's imperfect performance, the defects of Congress's performance may then seem less consequential, and the case for judicial review based on comparative demonstrated institutional competence may seem weaker.
50 Duke L.J. 1395-1425 (2001)
Scholarly Commons Citation
Tushnet, Mark V., "Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies" (2001). Georgetown Law Faculty Publications and Other Works. Paper 552.