Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design


How should constitutional designers address the problem of apex criminality, or criminal actions by those elected or appointed to high positions in a national government? I develop here three general points about this difficult question of constitutional design. First, it is not at all clear that a constitutional designer ought to expend effort on creating accountability mechanisms to address apex criminality. Second, if a designer does choose to address the question, she must opt between two necessarily imperfect options—a ‘legal’ mechanism embedded in a nonpartisan body such as a prosecutor’s office, or a ‘political’ mechanism, which runs through an elected body such as a legislature. There is no simple response to the question of which is optimal. Third, a better way to approach the constitutional design question may be in terms of the kinds of political culture that will likely unfold under a new constitution. Even if a designer cannot easily optimize some single metric of national welfare, she can make an intelligent judgment about the character of political life she hopes to inspire.

About the Author

Frank and Bernice J. Greenberg Professor of Law, University of Chicago

By uclalaw