The duty of good faith and fair dealing is so important to commercial life that it is deemed an implied term in commercial agreements. Is something similar essential to the practice of constitutional democracy? Is a requirement or expectation of good faith and fair dealing even consistent with our basic understanding of American constitutional law?
In Federalist 51, one of the essays written to encourage ratification of the Constitution, the pseudonymous author Publius wrote: “You must first enable the government to control the governed; and in the second place oblige it to control itself.”
But how is the government meant to control itself under our Constitution? The textbook answer is through vertical and horizontal separations of powers—through federalism, or the sharing of power between the states and the national government, and through the separation of powers and checks and balances among the branches of the national government. What I’d like to suggest is that these “hard” law requirements are not sufficient by themselves.
Something like a requirement or expectation of good faith and fair dealing—adherence to what we might call “constitutional conventions” or “norms”—is not only consistent with the Constitution, but essential to the proper functioning of American constitutional government.
Let’s look again at Federalist 51, where Publius also writes:
[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others…. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.
The key point is that the proper functioning of government is to be accomplished through this interbranch competition (setting ambition against ambition) and the projected identity of interests between officeholders and the branch in which they serve. Executive officials will think of themselves primarily as members of the executive; the same goes for judges as judges, senators as senators, and the members of the House of Representatives as people of the House above all else. And all anticipate that they will best advance their personal interests by safeguarding the constitutional prerogatives of their respective branch. For example, if the speaker of the House strives to make the House more powerful, he will add to his personal power.
The idea is that good results will follow from each of the branches attempting to maximize their own power, within the formal framework of law and checked by a counterpressure exerted by the other branches.
The right kind of personal ambition
We thus have a model that is not inhospitable to virtue but does not necessarily depend on it. We know, for example, that the Founders anticipated that the president would be a person of good character—one with “an honest devotion to the public interest,” as the Supreme Court observed in Martin v. Mott (1827). But the whole government is designed to function like a mechanical device fueled by law and the right kind of ambition. This design recalls Bernard Mandeville’s Fable of the Bees: or, Private Vices, Publick Benefits (1714), which posits a thriving society based, as E .J. Hundert puts it, on “an aggregation of self-interested individuals necessarily bound to one another neither by their shared civic commitments nor their moral rectitude, but, paradoxically, by the tenuous bonds of envy, competition and exploitation.”
The basic theory articulated in Federalist 51 generally drives our constitutional jurisprudence. For example, in Immigration and Naturalization Service v. Chadha (1983), which invalidated a law that allowed a single chamber of Congress to override deportation decisions by the U.S. attorney general, Chief Justice Burger explained that “[t]he hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted.”
In other words, the branches (and sub-branches, in the case of Congress) naturally will be inclined to overreach, and that must be resisted. That resistance will usually come from one of the political branches, which will exert its own hydraulic pressure. If that fails, resistance must come from the courts, as in Chadha.
Chief Justice Burger provides a comforting image of equipoise. But whether equipoise materializes in practice depends on whether “the interest of the person” finds its connection “with the constitutional rights of the place.” For example, will the speaker of the House consider the constitutional prerogatives of the House as his or her principal locus of allegiance—and most likely path to advancement—above all other identifications, causes, ideas or commitments?
In a world without political parties, one’s sense of identification with the branch of government in which one serves might well exert a strong pull, and, even in a world with political parties (and other competing sources of loyalty—such as region, religion, ideology and economic class), that might be the case. But in the early 19th century, Supreme Court Chief Justice John Marshall saw wisdom in the justices sharing a boardinghouse, rather than living with state congressional delegations, where their regional allegiances might have been reinforced.
People enter politics to accomplish something, and the precise force exerted by various allegiances probably depends on which of those allegiances they think most likely to further those purposes. Promoting the relative dominance of one’s branch might do that, but promoting one’s political party might also do it. For example, did Speaker Johnson prematurely recess the House last summer to benefit the House? Unlike Publius, we live in a world in which political parties are powerful cultural forces cross-cutting and undermining the force of branch identification.
Independence and reciprocity
Is there something more to the American constitutional system than the “hydraulic pressure” of competing interests? In Youngstown Sheet & Tube v. Sawyer (1952), Justice Robert H. Jackson states: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.” But how does it do that?
Interdependence and reciprocity would seem to depend on more than what the text of the Constitution can give us. Of course, the Constitution didn’t settle everything. It left some things to Congress (including even the architecture of the executive and judicial branches), some things for determination by the courts and some things to be settled by government practice.
A. V. Dicey, the 19th-century English scholar, recognized that a written constitution cannot obviate the need for “understandings, habits, or practices” that regulate the conduct of political actors. More recently, the political scientists Steven Levitsky and Daniel Ziblatt have talked about the need for “institutional forbearance,” defined as “avoiding actions that, while respecting the letter of the law, obviously violate its spirit.” The exercise of power must always be tempered by the understanding that today’s majority party may someday be the minority.
So what was left to convention? Recent history provides some examples. Presidents have not typically granted pre-emptive pardons to family members, and they have not routinely conflated their personal business affairs with those of the nation. Incoming presidents have not routinely removed military leaders as if they were civilian political appointees. Presidents have not usually mobilized a state’s national guard for domestic deployment within the state without the governor’s request or consent; nor have they deployed one state’s national guard in another state without the receiving state’s approval. But we have seen all these traditions flouted in recent years because they are mere conventions, not constitutional or legal requirements.
We can explore this development further with an example from each of the three branches. First, Article III establishes the Supreme Court, but it says nothing about how the court is supposed to do its work. We have come to expect the court not just to exercise raw judicial power but to exercise its power in a particular way: deciding cases after briefing, argument and deliberation; confining constitutional judgments to those necessarily required by the facts of a case; and giving reasoned explanations for its decisions and ruling consistently over time. deliberating about the merits of possible arguments; confining constitutional judgments to those necessarily required by the facts of a case; and giving reasoned explanations for its decisions and ruling consistently over time.
But there is nothing in the Constitution that requires the court to do any of those things. It is purely a matter of convention. And it is a convention that the court has frequently abandoned over the past few years, and increasingly so in the past few months. It now regularly decides important issues on its “shadow docket” in favor of the executive, with little deliberation and often with little or no explanation. These machine-gun rulings afford little more than the opportunity for the justices to vote their pre-existing views into law. And they do nothing to promote public confidence in the court.
Similarly, Article II, Section 2, Clause 2 provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court.” But the Constitution says nothing about what “advice and consent” means. Indeed, the Constitution does not even expressly require that the Senate vote on a president’s nominee, but that was the modern custom until Senator Mitch McConnell, then the majority leader, refused to advance President Barack Obama’s nomination of Merrick Garland in 2016. Senator McConnell defended his action (or inaction) by invoking a fictitious convention: Supreme Court vacancies in an election year should be left for a new president to fill. In 2020, however, Senator McConnell engineered the confirmation of Amy Coney Barrett in the waning days of the first Trump administration, relying on another fictitious convention—that his first convention didn’t apply when the same political party controlled the White House and Senate.
In both cases, Senator McConnell relied on fictitious conventions to further the interests of his political party, not the Senate’s, and he ignored the actual convention that the president’s nominee is entitled to a vote. That did nothing to enhance public confidence in the Senate as an institution.
Finally, President Richard Nixon deployed federal law enforcement agencies such as the I.R.S. and the Department of Justice to harass his political enemies and reward his friends. In reaction, the established convention since Watergate has been to deny the president the power to pick out specific individuals or entities for investigation or prosecution. In his first term, President Trump chafed under that convention, but he did not violate it. However, the Supreme Court recently held that the president is constitutionally entitled to decide who should be investigated and prosecuted. That has changed the constitutional landscape.
Bill Pulte, the director of the Federal Housing Finance Agency, has apparently searched agency records to determine whether any of Mr. Trump’s “enemies” purposely or inadvertently claimed more than one principal residence on mortgage applications. Senator Adam Schiff and Representative Eric Swalwell of California and Attorney General Letitia James of New York, all Democrats, have been referred to the Justice Department for criminal prosecution, as has Lisa Cook, a governor of the Federal Reserve Board. (ProPublica has reported that at least three members of the president’s cabinet are guilty of the same offense or oversight.) The Cook case is particularly interesting because Mr. Trump has long sought to gain control of the Federal Reserve—the most independent of independent agencies, with members having 14-year terms and being removable only for cause.
The rule of law requires more than law
Is it just nostalgia that causes me to regret the abandonment of these constitutional conventions? We expect the government to control itself by following the law, but there is also the spirit of the law, which is not always satisfied by strict compliance with its letter.
We have seen that the separation of powers does not do the work that the framers contemplated because of the rise of parties, and, more recently, of extreme partisanship. And we know that courts have a limited role to play; “hard” law is all that they can enforce. But conventions are critical, and they depend on shared understandings of what the government should and should not do. They depend on civic culture and some very basic sense of common enterprise. And they depend on recognizing that today’s winners may be tomorrow’s losers, so that an enlightened self-interest counsels self-restraint by those in power. Ironically, the rule of law requires more than law.
Just as bones cannot propel us through our physical life without muscles and ligaments and tendons, the Constitution cannot propel us through our public life without conventions, norms or “soft” law. We should not let conventions that embody the spirit of the law slip away without notice. We must be as vigilant with respect to their preservation as we are of the Constitution itself. As our present circumstances teach us, conventions cannot save us by themselves, but we cannot be saved without them.
Justice Louis D. Brandeis once observed that “the greatest menace to freedom is an inert people.” Many now believe that “we the people” are powerless and that inertness is our destiny. But that is unnecessarily defeatist. So long as we continue to elect our leaders, we can influence them. At least with respect to the executive and legislative branches, we can insist that they follow the spirit of the law as well as the law itself. Where it would be feasible and wise, we can insist that they elevate desirable conventions to the status of “hard” law. Where particular conventions are desirable, but translating them into positive law would not be feasible (because they require more flexibility in application than positive law would allow, for example), we can still insist that the conventions be followed.
In other words, the people can assert the power that the Constitution puts in our hands.
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This essay is adapted from the Jessica Swift Constitution Day Lecture, which the author presented at Middlebury College in September 2025.
This article appears in January 2026.
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