The Problem of Constitutionalized Discretion



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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.



Constitutions, Discretion, Rules, Pardon, Equity