The Political Ethics of Constitutional Professionalism

Vogelsang-Coombs, Vera

doi:10.1057/978-1-137-49400-9_11

Vera Vogelsang-Coombs²

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Abstract

This chapter discusses how the elimination of abusive administrative practices in bureaucratic governance requires a comprehensive institutional approach to restore the balance between bureaucratic authority and the liberty and equality of citizens. This chapter advocates career public servants’ acting as constitutional professionals and outlines the elements of constitutional professionalism, including the use of external controls provided by representative political institutions such as grand juries. This chapter also argues for strengthening the constitutional system of checks and balances in bureaucratic governance by encouraging more rigorous legislative oversight and greater diversification of democratic public service through the adoption of the norms of representative bureaucracy and consultative administrative practices. The chapter concludes with guidelines on how career public servants may behave as constitutional professionals in their day-to-day operations.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls would be necessary. In ...[running] a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Publius (James Madison), Federalist Paper #51

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Notes

1.
James Madison, The Federalist Papers: Alexander Hamilton, James Madison, John Jay, ed. Clinton Rossiter (New York, NY: Mentor, 1961), 322.
2.
Richard T. Green, Lawrence F. Keller, and Gary L. Wamsley, “Reconstituting a Profession for American Public Administration,” Public Administration Review 53, no. 6 (November/December 1993): 518.
3.
Michael W. Spicer, “Public Administration, the History of Ideas, and the Reinventing Government Movement,” Public Administration Review 64, no. 3 (May/June 2004).
4.
Herman C. Pritchett, Constitutional Civil Liberties (Englewood Cliffs, NJ: Prentice-Hall, 1984), 217.
5.
Ibid., 224.
6.
United States. v. Nixon. 418 U.S. 683 (1974).
7.
Title 18 of the US Penal Code (18 USC, section 3331a) requires every federal judicial district to impanel a grand jury if requested by an elected official or the Department of Justice.
8.
Pritchett, Constitutional Civil Liberties, 219.
9.
Ibid., 200.
10.
Federal Jury Selection and Service Act of 1968. 28 U.S.C. §1861 (1968).
11.
Ibid., 222.
12.
Herman C. Pritchett, The American Constitution (New York, NY: McGraw-Hill, 1959), 544.
13.
American Bar Association (ABA), “In the Aftermath of Ferguson: Teaching about Grand Juries,” American Bar Association, accessed March 18, 2015, http://www.americanbar.org/groups/public_education/GrandJury.html.
14.
Josh Levin, “The Judge Who Coined ‘Indict a Ham Sandwich’ Was Himself Indicted,” Slate, last modified November 25, 2014, accessed May 29, 2015, http://www.slate.com/blogs/lexicon_valley/2014/11/25/sol_wachtler_the_judge_who_coined_indict_a_ham_sandwich_was_himself_indicted.html.
15.
Glenn Harlan Reynolds, “Ham Sandwich Nation: Due Process When Everything Is a Crime,” Columbia Law Review Sidebar 113 (July 2013): 103.
16.
US Department of Justice Civil Rights Division, Investigation of the Ferguson Police Department, by US Department of Justice Civil Rights Division (n.p.: U S Department of Justice, 2015), accessed April 2, 2015, http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf.
17.
The prosecutor was criticized for not sequestering the Ferguson grand jury and for making its work public even though there was no indictment. Also, grand jury testimony favoring the police officer was leaked to The St Louis Post Dispatch, The New York Times, and The Washington Post to influence public opinion. However, the prosecutor decided not to investigate the leaks, although DOJ investigators found the leaks “irresponsible and highly troubling” (Samuels & Horowitz, 2014). Another criticism was whether the prosecutor who controlled the grand jury process should have recused himself because his father, a St. Louis police officer, was killed by a black suspect (Kindy, 2014).
18.
Mark Trumbell, “Ferguson Grand Jury: What Do We Know about Michael Brown Deliberations?,” Christian Science Monitor, November 14, 2014, accessed April 5, 2015, http://www.csmonitor.com/USA/Justice/2014/1119/Ferguson-grand-jury-What-do-we-know-about-Michael-Brown-deliberations-video.
19.
US Department of Justice Civil Rights Division, Investigation of the Ferguson, 1.
20.
Peter W. Sperlich, “Comments on Your Draft Regarding Grand Juries,” e-mail message to author, April 8, 2015.
21.
Carol W. Lewis and Stuart C. Gilman, The Ethics Challenge in Public Service: A Problem-Solving Guide, 2nd ed. (San Francisco, CA: Jossey-Bass, 2005), 84.
22.
Donald F. Kettl, The Politics of the Administrative Process, 6th ed. (Thousand Oaks, CA: Sage-CQ Press, 2015), 14.
23.
The Economist, “We Don’t Belong Here: Rioting in One Run-down Suburb of St. Louis Shows the Enduring Rifts between Blacks and the Police,” The Economist, November 29, 2014, accessed April 5, 2015, http://www.economist.com/news/united-states/21635007-rioting-one-run-down-suburb-st-louis-shows-enduring-rift-between-blacks-and.
24.
Peter Holley, “Two New York City Police Officers Are Shot and Killed in a Brazen Ambush in Brooklyn,” Washington Post, December 20, 2014, accessed April 5, 2015, http://www.washingtonpost.com/national/two-new-york-city-police-officers-are-shot-and-killed-in-a-brazen-ambush-in-brooklyn/2014/12/20/2a73f7ae-8898-11e4-9534-f79a23c40e6c_story.html.
25.
Peter W. Sperlich, “The Case for Preserving the Right of Trial by Jury,” Judicature 65, nos. 8–9 (1982).
Sperlich’s (1982) four-prong defense of grand juries is as follows. First, a bench trial is not necessarily better than a jury trial because a single judge as a decision-maker is not necessarily superior to the fact-finding process conducted by a grand jury. Second, a grand jury has certain advantages in complex litigation in that its verdict individualizes law in cases without setting a precedent. Third, besides fact-finding, a grand jury may discipline counsels and can provide checks on judicial power. Relatedly, a jury verdict is an expression of community values that bear on important public issues. Fourth, the problems with a jury verdict are often rooted in the laws that jurors are asked to enforce rather than deficiencies inherent in the institution of trial by jury.
26.
Peter W. Sperlich, “Comments on Your Draft,” e-mail message to author.
27.
Clifton Parker, “Grand Jury Flawed in Ferguson Case but Still Valuable for Investigations, Stanford Law Professor Says,” Stanford Report, December 9, 2014, accessed March 18, 2015, http://news.stanford.edu/news/2014/december/grand-jury-qanda-120914.html.
28.
Stephen K. Bailey, “Ethics and the Public Service,” Public Administration Review 24, no. 4 (1964).
29.
Pritchett, Constitutional Civil Liberties, 217.
30.
James C. McKinley and Al Baker, “Grand Jury System, with Exceptions, Favors the Police in Fatalities,” The New York Times, December 7, 2014, accessed June 19, 2015, http://www.nytimes.com/2014/12/08/nyregion/grand-juries-seldom-charge-police-officers-in-fatal-actions.html?_r=0.
31.
Reynolds, “Ham Sandwich Nation: Due Process.”
32.
Parker, “Grand Jury Flawed in Ferguson.”
33.
David H. Rosenbloom, “Public Employees’ Liability for ‘Constitutional Torts’,” in Public Personnel Management: Current Concerns, Future Challenges, ed. Norma M. Riccucci, 5th ed. (Glenview, IL: Longman, 2012).
34.
Reynolds, “Ham Sandwich Nation: Due Process,” 107.
35.
U.S. Attorneys Offices, “Title 9-11-000, Grand Jury,” in U.S. Attorneys’ Manual (USAM, 2015) (US Department of Justice, 2015), accessed May 29, 2015, http://www.justice.gov/usam/usam-9-11000-grand-jury#9-11.233.
36.
No constitutional requirement exists for federal prosecutors to present grand juries with exculpatory evidence that might clear a defendant of guilt or blame for a crime. At the state and local levels, it is not customary for prosecutors to provide exculpatory evidence. While the one-sided presentation to grand juries might appear strange or unfair to lay persons, this practice, according to Sperlich (2015) is appropriate; otherwise, the grand jury process would become the equivalent of a trial to determine guilt or innocence of the accused. As mentioned earlier, the function of the grand jury is not to acquit or convict but to determine if enough incriminating evidence exists to have a trial at all. In this way, the accused person is spared an unjustified trial that can be damaging and costly, even if the defendant is ultimately acquitted. Nevertheless, the DOJ imposes a professional obligation on federal prosecutors to expose the most extreme type of exculpatory evidence (USAM, 2015).
37.
In re Kline, No. 13-BG-851 (Apr. 9, 2015), Justia US Law, accessed May 29, 2015. http://law.justia.com/cases/district-of-columbia/court-of-appeals/2015/13-bg-851.html
38.
David J. Rosenbloom, “Prosecutorial Misconduct and Remedies,” e-mail message to author, May 27, 2015.
39.
California Courts, “Civil Grand Jury,” California Courts: The Judicial Branch of California, accessed March 21, 2015, http://www.courts.ca.gov/civilgrandjury.htm.
On the one hand, the California penal code sets the following “inclusive” requirements for the selection of civil grand jurors: jurors must be 18 years of age, live in the county 1 year before selection, have sound judgment and good character, and possess a sufficient knowledge of English to communicate in written and oral forms. On the other hand, the California penal code sets that ineligible persons are those who are serving on trial juries or who have served on a trial jury in the year preceding selection, as well as incumbent elected officials or persons convicted of malfeasance in office or a felony or other high crime (California Courts, 2015).
40.
Akhil Reed Amar, “William & Mary Law Review 2013 Symposium: ‘The Civil Jury as a Political Institution’: Opening Remarks,” William & Mary Law Review 55, no. 3 (2014).
41.
Robert P. Burns, “The Jury as a Political Institution: An Internal Perspective,” William & Mary Law Review 55, no. 3 (2014).
42.
California Courts, “Civil Grand Jury,” California Courts: The Judicial Branch of California.
43.
Peter W. Sperlich, “Comments on Your Draft,” e-mail message to author.
44.
Herbert Kaufman, “Emerging Conflicts in the Doctrines of Public Administration,” American Political Science Review 50, no. 4 (1956).
45.
Alan Rosenthal, Heavy Lifting: The Job of the American Legislature (Washington, DC: CQ Press, 2004).
46.
Jerome H. Skolnick and James J. Fyfe, Above the Law: Police and the Excessive Use of Force (New York, NY: Free Press, 1993), 220.
47.
Vera Vogelsang-Coombs, “The American Constitutional Legacy and the Deliberative Democracy Environment of New Public Governance,” in New Public Governance: A Regime-Centered Perspective, ed. Douglas F. Morgan and Brian J. Cook (Armonk, NY: M.E. Sharpe, 2014), 90.
48.
Rosenthal, Heavy Lifting: The Job of the American.
49.
Dennis F. Thompson, “Responsibilities for Failure of Government: The Problem of Many Hands,” American Public Administration Review 44, no. 3 (2014): 267.
50.
Ibid., 261.
51.
Ibid., 267.
52.
Ibid., 261.
53.
Ibid., 261.
54.
Johan P. Olsen, “The Institutional Basis of Democratic Accountability,” West European Politics 36, no. 3 (2013).
55.
Olsen, “The Institutional Basis of Democratic.”
56.
James G. March and Johan P. Olsen, Democratic Governance (New York, NY: Free Press, 1995).
57.
Green, Keller, and Wamsley, “Reconstituting a Profession for American.”
David H. Rosenbloom, “Reflections on Public Administration Theory and the Separation of Powers,” American Review of Public Administration 43, no. 4 (May/June 2013).
58.
Brian J. Cook, “Regime Leadership and New Public Governance,” in New Public Governance: A Regime Perspective, ed. Douglas F. Morgan and Brian J. Cook (Armonk, NY: M.E. Sharpe, 2014).
59.
Rosenbloom, “Reflections on Public Administration,” 393.
60.
Ibid.
61.
Olsen, “The Institutional Basis of Democratic.”
62.
Frederick C. Mosher, Democracy and the Public Service, 2nd ed. (New York, NY: Oxford University Press, 1982).
63.
Katherine C. Naff, “Through the Glass Ceiling: Prospects for the Advancement of Women in the Federal Civil Service,” Public Administration Review 54, no. 6 (November/December 1994).
Norma M. Riccucci, “Diversity and Cultural Competency,” in Public Personnel Management, ed. Norma Riccucci, 5th ed. (New York, NY: Longman, 2012).
64.
Rosenbloom, “Reflections on Public Administration,” 388.
65.
Stuart Hampshire, “Public and Private Morality,” in Public and Private Morality, ed. Stuart Hampshire et al. (London, UK: Cambridge University Press, 1978).
66.
Michael W. Spicer, In Defense of Politics in Public Administration: A Value Pluralist Perspective (Tuscaloosa, AL: University of Alabama Press, 2010).
67.
Samuel Krislov and David H. Rosenbloom, Representative Bureaucracy and the American Political System (New York, NY: Praeger, 1981), 22.
68.
Norton E. Long, “Bureaucracy and Constitutionalism,” in The Polity, ed. Charles Press (Chicago, IL: Rand McNally, 1952).
69.
Hanna F. Pitkin, The Concept of Representation (Berkeley, CA: University of California Press, 1967).
70.
Mosher, Democracy and the Public, 15.
71.
Ibid., 17.
72.
Ibid., 15.
73.
Ibid., 220.
74.
Michael D. White, Current Issues and Controversies in Policing (Boston, MA: Prentice Hall, 2007), 138.
75.
Mosher, Democracy and the Public, 17.
Mitchell F. Rice and Harvey L. White, “Embracing Workforce Diversity in Public Organizations,” in Diversity and Public Administration: Theory, Issues, and Perspectives, ed. Mitchell F. Rice, 2nd ed. (Armonk, NY: M.E. Sharpe, 2010), 6.
76.
Skolnick and Fyfe, Above the Law: Police, 138.
77.
Ibid., 266.
78.
Mosher, Democracy and the Public, 101.
79.
Skolnick and Fyfe, Above the Law: Police, 266.
80.
Rosemary O’Leary, The Ethics of Dissent: Managing Guerrilla Government (Washington, DC: CQ Press., 2006), 98.
81.
Mosher, Democracy and the Public, 101.
82.
Hugh T. Miller, “Everyday Politics in Public Administration,” American Review of Public Administration 23, no. 2 (June 1993): 109.
83.
Douglas F. Morgan et al., Foundations of Public Service, 2nd ed. (Armonk, NY: M.E. Sharpe, 2013).
84.
Stuart C. Gilman and Howard Whitton, “When Transparency Becomes the Enemy of Accountability: Reflections from the Field,” Public Administration Times (Washington, DC), November 26, 2013, accessed November 27, 2013, http://patimes.org/transparency-enemy-accountability-reflections-field/.
Miller, “Everyday Politics in Public.”
85.
Rice and White, “Embracing Workforce Diversity in Public,” in Diversity and Public Administration, 298.
86.
Mitchell F. Rice, “Workforce Diversity in Business and Governmental Organizations,” in Diversity and Public Administration: Theory, Issues, and Perspectives, 2nd ed. (Armonk, NY: M.E. Sharpe, 2010), 115.
87.
Rice and White, “Embracing Workforce Diversity in Public,” in Diversity and Public Administration, 303.
88.
John A. Rohr, Ethics for Bureaucrats: An Essay on Law and Values, 2nd ed. (New York, NY: Marcel Dekker, 1989), 72.
89.
Quoted in Rohr, Ethics for Bureaucrats: An Essay, 73.
90.
Ibid., 73.
91.
Ibid.
92.
Ibid., 64.
93.
Ibid., 64.
94.
Ibid., 77.
95.
Norton E. Long, “The Ethics and Efficacy of Resignation in Public Administration,” Administration & Society 25, no. 1 (May 1993): 4.
96.
Rohr, Ethics for Bureaucrats: An Essay, 74.
97.
J. Patrick Dobel, Public Integrity (Baltimore, MD: Johns Hopkins University Press, 1999), 111.
98.
Lewis and Gilman, The Ethics Challenge in Public, 102.
99.
Olsen, “The Institutional Basis of Democratic.”

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Cleveland State University, Beachwood, OH, USA
Vera Vogelsang-Coombs

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Vogelsang-Coombs, V. (2016). The Political Ethics of Constitutional Professionalism. In: The Political Ethics of Public Service. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-49400-9_11

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DOI: https://doi.org/10.1057/978-1-137-49400-9_11
Published: 06 May 2016
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