Constitutional Hypocrisy

Despite substantial scholarly interest in the nature, role, and consequences of hypocrisy in liberal politics, its constitutional dimensions have yet to be adequately assessed. As a result, a large swath of salient political conduct remains under-theorized and its significance poorly understood. To remedy this, and to facilitate further positive and normative analysis, this essay advances a refined conception of constitutional hypocrisy, defined as a species of constitutional translation that emerges in the course of constitutional politics as political actors advance inconsistent constructions of constitutional meaning. Drawing on three examples—presidential impeachments, judicial appointments, and federalism—the essay distinguishes constitutional hypocrisy from conventional hypocrisy and identifies the shortcomings of previous efforts to assess hypocrisy in constitutional politics. Constitutional hypocrisy is then assessed in light of two aspects of American constitutional morality: the centrality of reason-giving and the importance of rivalrous relationships. Ultimately, the essay concludes that even as constitutional hypocrisy can advance constitutional ends by contributing to deliberation and vindicating institutional purposes, it can subvert constitutional governance by degrading political discourse and undermining institutional integrity.