Most people, scholars and laypeople alike, view the judiciary as the ultimate authority in constitutional questions. Political scientist Susan Burgess sees things differently. In Contest for Constitutional Authority, Burgess shows how such single-branch supremacy diminishes public understanding of and participation in constitutional democracy.
Instead, Burgess argues that each branch of government has the right to interpret the Constitution, and that no branch has the final authority theory known as "departmental review." In a system based on departmental review, constitutional interpretation is not solely a judicial function, but rather a shared dialogue among all the branches of government as they articulate their positions on important constitutional issues and respond to opposing arguments. Through close study of the war powers and abortion debates, Burgess demonstrates that the practice of departmental review improves the quality of constitutional debate, deepens "constitutional consciousness," and enhances respect for the rule of law.
Burgess could hardly have chosen two more dramatic case studies for this exploration. First, she investigates the constitutional issues relating to the debates over Roe v. Wade and, in its wake, the 1981 Human Life Bill, 1985 Abortion Funding Restriction Act, and contemporaneous court cases. She follows with a comparative analysis of the constitutional debates that focused on the infamous 1964 Gulf of Tonkin Resolution and the Persian Gulf crisis of the late 1980sone prior to and the other after the passage of the 1973 War Powers Act, which requires congressional authorization before waging war.
In Contest for Constitutional Authority Burgess demonstrates the considerable potential (and possible drawbacks) of departmental review for creating a common constitutional language that transcends the polemical impasses characterizing much current debate, for recapturing active and thoughtful citizen participation, and for renewing our faith in the authority of the constitutional text.