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ing from the example of the Lawyers Group, our discussion seeks to make two distinctive contributions to deliberative theory. First, we focus on its application to a field in which full transparency and public justification often may not be feasible. Second, we discuss the particular role that legal analysis may play in the deliberative process. In what follows, we describe the way in which the US Constitution seeks to further deliberative democracy and how the Lawyers Group can help realise this aim in the national security setting. B. DELIBERATION AND THE US CONSTITUTION The US Constitution is notable for its reliance on a sharp separation of powers among the executive, Congress, and the judiciary. This arrangement is designed to prevent the concentration of power within government by ‘giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others’. The prospect of close vigilance by the other branches over the exercise of authority also serves deliberative values. It requires that each branch provide justifications for acting that the other two branches, and the public, find persuasive. This can improve the quality of deliberations, since each branch must anticipate potential counter-arguments to its claims of authority by branches that jealously guard their prerogatives. To the extent that officials successfully address such objections, their actions are likely to be perceived as legitimate. As this description suggests, perceived legality and legitimacy are closely connected in US political culture. De Tocqueville famously noted at an early point the tendency of US citizens to frame political issues as legal ones. 7 With respect to the executive branch, Richard Pildes has observed that the public often evaluates presidential performance in terms of whether the President is acting in accordance with the law. As he notes: the world of public and political responses to political action is filtered through law itself. In so many contexts, no separation between law and public judgment exists: public judgment is constantly refracted through 6 Alexander Hamilton, James Madison and John Jay, ‘Federalist No. 51,’ in The Federalist Papers (Signet 1961) 321-2. 7 Alexis de Tocqueville, Democracy in America (J P Mayer & Max Lerner (eds), Harper & Row, 1966) 248.

Deliberative Constitutionalism in the National Security Setting