Veil of Ignorance Rules in Constitutional Law

Yale Law Journal

Volumn 111, Issue 2, 2001, Pages 399-432

  Vermeule, Adrian ^a  

^a NONE

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EID: 0347617358     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797593     Document Type: Article

References (114)

1. For a simple example, consider a rule that requires an official with regulatory authority over the stock market to place her assets in a "blind trust." Even if the official is self-interested, she will be uncertain whether any given decision will increase or decrease the value of her portfolio. She will thus be unable to skew her decisions in order to promote her personal interests. Other homely examples are blind grading and the practice by which orchestras place auditioners behind a screen.
2. JOHN RAWLS, A THEORY OF JUSTICE 118-23 (rev. ed. 1999).
3. An intermediate case occurs when a decisionmaker faces a decision that will principally affect not the decisionmaker herself, but her (genetic) descendants. If the time horizon over which the decision will matter is long enough, the attributes of descendants may be so difficult to predict that the decisionmaker will effectively be left ignorant of the identity of the persons whose interests she would favor, if she could. In this vein, participants at the Constitutional Convention argued that the Framers should impartially assess the interests of social classes, and of large and small states, because posterity would distribute their descendants throughout the strata and regions of society. See infra notes 55-56 and accompanying text.
4. See GEOFFREY BRENNAN & JAMES M. BUCHANAN, THE REASON OF RULES 28-31 (1985); JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 77-80 (1962); DENNIS MUELLER, CONSTITUTIONAL DEMOCRACY 61-64 (1996).
5. See GEOFFREY BRENNAN & JAMES M. BUCHANAN, THE REASON OF RULES 28-31 (1985); JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 77-80 (1962); DENNIS MUELLER, CONSTITUTIONAL DEMOCRACY 61-64 (1996).
6. See GEOFFREY BRENNAN & JAMES M. BUCHANAN, THE REASON OF RULES 28-31 (1985); JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 77-80 (1962); DENNIS MUELLER, CONSTITUTIONAL DEMOCRACY 61-64 (1996).
7. U.S. CONST. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed [by Congress]."); id. art. I, § 10, cl. 1 ("No State shall . . . pass any Bill of Attainder [or] ex post facto Law . . . .").
8. Id. art. I, § 6, cl. 2 ("No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time . . . .").
9. Id. amend. XXVII ("No Law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.").
10. Id. art. V (specifying procedures for constitutional amendment).
11. Id. art. I, § 3, cl. 1 (stating that federal senators shall be chosen by the state legislatures), amended by id. amend. XVII (replacing legislative selection with direct election).
12. Id. art. II, § 1, cls. 3, 5 (providing rules for presidential election and succession); id. amend. XII (providing rules for presidential election); id. amends. XX, XXV (providing rules for presidential succession).
13. The most sustained discussion in the law review literature is an excellent short treatment of the veil of ignorance in Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 MICH. L. REV. 917, 966-77 (1990). Fitts's emphasis, however, is on the veil effects arising from competition between political parties in a system of separated powers, rather than the sort of textual and doctrinal analysis I offer here. Another related idea is Cass Sunstein's argument that impartiality should be understood to ban decisions that embody "naked preferences." CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 17-39 (1993). Constitutional rules that instantiate such a ban, however, are not (or, not necessarily) veil rules that regulate decisionmakers' information. They are more often direct restrictions on constitutionally disfavored outcomes.
14. The most sustained discussion in the law review literature is an excellent short treatment of the veil of ignorance in Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 MICH. L. REV. 917, 966-77 (1990). Fitts's emphasis, however, is on the veil effects arising from competition between political parties in a system of separated powers, rather than the sort of textual and doctrinal analysis I offer here. Another related idea is Cass Sunstein's argument that impartiality should be understood to ban decisions that embody "naked preferences." CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 17-39 (1993). Constitutional rules that instantiate such a ban, however, are not (or, not necessarily) veil rules that regulate decisionmakers' information. They are more often direct restrictions on constitutionally disfavored outcomes.
15. See Saul Levmore, Efficiency and Conspiracy: Conflicts of Interest, Anti-Nepotism Rules, and Separation Strategies, 66 FORDHAM L. REV. 2099 (1998) (analyzing the tradeoff between information and neutrality in conflict-of-interest law); see also Fitts, supra note 11, at 970 (noting that the veil of ignorance is "overinclusive" if "too much information is eliminated"); Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal Budget Process, 35 HARV. J. ON LEGIS. 387, 409-15 (1998) (analyzing the information-bias tradeoff in the context of the federal budget process).
16. See Saul Levmore, Efficiency and Conspiracy: Conflicts of Interest, Anti-Nepotism Rules, and Separation Strategies, 66 FORDHAM L. REV. 2099 (1998) (analyzing the tradeoff between information and neutrality in conflict-of-interest law); see also Fitts, supra note 11, at 970 (noting that the veil of ignorance is "overinclusive" if "too much information is eliminated"); Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal Budget Process, 35 HARV. J. ON LEGIS. 387, 409-15 (1998) (analyzing the information-bias tradeoff in the context of the federal budget process).
17. See Saul Levmore, Efficiency and Conspiracy: Conflicts of Interest, Anti-Nepotism Rules, and Separation Strategies, 66 FORDHAM L. REV. 2099 (1998) (analyzing the tradeoff between information and neutrality in conflict-of-interest law); see also Fitts, supra note 11, at 970 (noting that the veil of ignorance is "overinclusive" if "too much information is eliminated"); Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal Budget Process, 35 HARV. J. ON LEGIS. 387, 409-15 (1998) (analyzing the information-bias tradeoff in the context of the federal budget process).
18. I shall subsume within the category of self-interest a partial preference for decisionmakers' relatives, descendants, political allies, and so forth. The justification for this treatment derives from the modesty of constitutional law's ambitions and the crudity of its instruments. Although there may be conceptual reasons for treating these categories differently, constitutional rules are not usually fine-grained enough to take such differences into account.
19. See Linda Babcock & George Loewenstein, Explaining Bargaining Impasse: The Role of Self-Serving Biases, J. ECON. PERSP., Winter 1997, at 109, 111 (observing that self-serving bias causes decisionmakers to "arrive at judgments of what is fair or right that are biased in the direction of their own self-interests").
20. See Christopher H. Schroeder & Robert L. Glicksman, Chevron, State Farm, and EPA in the Court of Appeals During the 1990s, [2001] 31 Envtl. L. Rep. (Envtl. L. Inst.) 10,371 (explaining "motivated reasoning").
21. John Harsanyi, for example, advocates a utilitarian account of choice in the original position and uses an "equiprobability postulate" that maximizes the mean utility level of all individuals in society. John C. Harsanyi, Morality and the Theory of Rational Behaviour, in UTILITARIANISM AND BEYOND 39, 44-46 (Amartya Sen & Bernard Williams eds., 1982).
22. The maximin criterion instructs decisionmakers to choose, from among possible actions, the one whose worst possible consequences are better than the worst possible consequences of the alternative actions. See R. DUNCAN LUCE & HOWARD RAIFFA, GAMES AND DECISIONS 278 (1957). Rawls uses the maximin criterion to derive his "difference principle," which says that allocative inequalities are permissible only to the extent they maximize the position of the least-well-off. RAWLS, supra note 2, at 132-35.
23. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1978).
24. See MORTON WHITE, PHILOSOPHY, THE FEDERALIST, AND THE CONSTITUTION 102-28 (1987). In the present analysis, I will ignore the role of passion. Attempts by constitutional designers to prevent in-system decisionmakers from falling prey to their temporary passions is the subject of the theory of constitutional precommitments, a subject that has been thoroughly studied of late. See, e.g., JON ELSTER, ULYSSES UNBOUND 88-167 (2000); Jeremy Waldron, Precommitment and Disagreement, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 271 (Larry Alexander ed., 1998).
25. See MORTON WHITE, PHILOSOPHY, THE FEDERALIST, AND THE CONSTITUTION 102-28 (1987). In the present analysis, I will ignore the role of passion. Attempts by constitutional designers to prevent in-system decisionmakers from falling prey to their temporary passions is the subject of the theory of constitutional precommitments, a subject that has been thoroughly studied of late. See, e.g., JON ELSTER, ULYSSES UNBOUND 88-167 (2000); Jeremy Waldron, Precommitment and Disagreement, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 271 (Larry Alexander ed., 1998).
26. See MORTON WHITE, PHILOSOPHY, THE FEDERALIST, AND THE CONSTITUTION 102-28 (1987). In the present analysis, I will ignore the role of passion. Attempts by constitutional designers to prevent in-system decisionmakers from falling prey to their temporary passions is the subject of the theory of constitutional precommitments, a subject that has been thoroughly studied of late. See, e.g., JON ELSTER, ULYSSES UNBOUND 88-167 (2000); Jeremy Waldron, Precommitment and Disagreement, in CONSTITUTIONALISM: PHILOSOPHICAL FOUNDATIONS 271 (Larry Alexander ed., 1998).
27. THE FEDERALIST NO. 10, at 123 (James Madison) (Isaac Kramnick ed., 1987).
28. THE FEDERALIST NO. 51, supra note 20, at 320 (James Madison).
29. THE FEDERALIST No. 48, supra note 20, at 309 (James Madison).
30. See Tumey v. Ohio, 273 U.S. 510 (1927) (holding that due process is violated when the adjudicator has a financial stake in the outcome).
31. U.S. CONST. art. I, § 6, cl. 2 ("[N]o Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.").
32. The corollary problem of legislators who give up their seats to assume offices they have themselves created, or whose perquisites they have enhanced, is the subject of the Emoluments Clause. See infra notes 70-75 and accompanying text.
33. See ELSTER, supra note 19, at 140-41.
34. We might also speak of recusal as a remedy for conflict of interest. See ANDREW STARK, CONFLICT OF INTEREST IN AMERICAN PUBLIC LIFE 10 (2000). Indeed, the same is true of veil rules. Consider the blind trust remedy in nonconstitutional conflict-of-interest law, which denies the decisionmaker information about how his decisions will affect his financial interests. I assume that very little turns on whether we use the remedial label for the rules discussed in this Section.
35. See U.S. CONST. art. I, § 3, cl. 6; JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 389, at 276 (Carolina Acad. Press 1987) (1833).
36. This use of originalist materials contrasts with (what I take to be) the right conception of textualism in statutory interpretation, which eschews legislative history altogether. For the argument that the two positions are consistent, see Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833, 1886 n.181 (1998).
37. For a critique of holistic comparison, see Adrian Vermeule & Ernest A. Young, Hercules, Herbert and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730 (2000).
38. See supra note 10.
39. See Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution's Succession Gap, 48 ARK. L. REV. 215, 227 (1994) (justifying the congressional enactment of succession rules on veil of ignorance grounds); cf. 17 CONG. REC. 815 (1886) (statement of Sen. Sherman) ("The proposed [Electoral Count Act] comes before us . . . at the beginning of an administration, when no party advantage can be derived from our decision.").
40. See Akhil Reed Amar, Presidents, Vice Presidents, and Death: Closing the Constitution's Succession Gap, 48 ARK. L. REV. 215, 227 (1994) (justifying the congressional enactment of succession rules on veil of ignorance grounds); cf. 17 CONG. REC. 815 (1886) (statement of Sen. Sherman) ("The proposed [Electoral Count Act] comes before us . . . at the beginning of an administration, when no party advantage can be derived from our decision.").
41. Amar, supra note 32, at 221.
42. See supra note 5.
43. E.g., Weaver v. Graham, 450 U.S. 24 (1981) (invalidating a Florida statute that had retroactively reduced prisoners' "gain time" for good behavior). A minor wrinkle is that the Supreme Court has occasionally read ex post facto principles into the Due Process Clause, with the result that a few cases hold unforeseeable judicial interpretations of statutes unconstitutional. E.g., Bouie v. City of Columbia, 378 U.S. 347 (1964) (holding that the South Carolina Supreme Court violated the petitioners' due process rights by retroactively applying its new construction of a state statute). But the unforeseeability requirement is construed very grudgingly, and the official view remains that the ex post facto prohibition binds only legislatures, not courts. See Rogers v. Tennessee, 121 S. Ct. 1693 (2001); Harold J. Krent, Should Bouie Be Buoyed?: Judicial Retroactive Lawmaking and the Ex Post Facto Clause, 3 ROGER WILLIAMS U. L. REV. 35 (1997).
44. See Dobbert v. Florida, 432 U.S. 282 (1977) (upholding, against an ex post facto challenge, a retroactive change in death penalty sentencing procedure).
45. Harold J. Krent, The Puzzling Boundary Between Criminal and Civil Retroactive Lawmaking, 84 GEO. L.J. 2143 (1996).
46. Saul Levmore, The Case for Retroactive Taxation, 22 J. LEGAL STUD. 265, 280 (1993) (arguing, in light of interest-group theory, that rules burdening identifiable groups are less likely to be enacted than rules burdening unidentifiable groups).
47. Krent, supra note 37, at 2168 n.132.
48. The Clause was held to cover only criminal legislation in Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). But that holding was hotly contested at the time. Satterlee v. Matthewson, 27 U.S. (2 Pet.) 380, 414-16 (1829) (Johnson, J., dissenting). It is still controversial in originalist circles today. See, e.g., E. Enters, v. Apfel, 524 U.S. 498, 538 (1998) (Thomas, J., concurring) (expressing his willingness to overrule Calder).
49. E. Enters., 524 U.S. at 537 (plurality opinion) (invalidating a retroactive civil statute as an uncompensated taking of property); id. at 539 (Kennedy, J., concurring in part and dissenting in part) (reaching the same result under a due process analysis).
50. Perhaps the Justices in Calder v. Bull intuited this point. See 3 U.S. (3 Dall.) at 400 (Iredell, J.) (warning that "[w]ithout the possession of this power [to enact retroactive civil laws] the operations of government would often be obstructed").
51. Robert F. Williams, Equality Guarantees in State Constitutional Law, 63 TEX. L. REV. 1195, 1196 (1985).
52. U.S. CONST. art. I, § 8, cl. 1 ("[A]ll Duties, Imposts and Excises shall be uniform throughout the United States . . . ."); id. art. I, § 8, cl. 4 ("Congress shall have power . . . To establish an uniform Rule of Naturalization, and uniform laws on the subject of Bankruptcies throughout the United States . . . ."); id. art. I, § 9, cl. 6 ("No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another . . . .").
53. Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 YALE L.J. 1357, 1364 (1983); see also RICHARD A. EPSTEIN, TAKINGS 240 (1985) (justifying general tort rules on veil of ignorance grounds). For a recent attempt to make generality the master principle of constitutional choice, see JAMES M. BUCHANAN & ROGER D. CONGLETON, POLITICS BY PRINCIPLE, NOT INTEREST (1998).
54. Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 YALE L.J. 1357, 1364 (1983); see also RICHARD A. EPSTEIN, TAKINGS 240 (1985) (justifying general tort rules on veil of ignorance grounds). For a recent attempt to make generality the master principle of constitutional choice, see JAMES M. BUCHANAN & ROGER D. CONGLETON, POLITICS BY PRINCIPLE, NOT INTEREST (1998).
55. Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 YALE L.J. 1357, 1364 (1983); see also RICHARD A. EPSTEIN, TAKINGS 240 (1985) (justifying general tort rules on veil of ignorance grounds). For a recent attempt to make generality the master principle of constitutional choice, see JAMES M. BUCHANAN & ROGER D. CONGLETON, POLITICS BY PRINCIPLE, NOT INTEREST (1998).
56. Akhil Reed Amar, Attainder and Amendment 2: Romer's Rightness, 95 MICH. L. REV. 203, 210 (1996).
57. These hypotheticals are inspired by, but are different from, a series of cases examined id. at 211-13.
58. Roderick M. Hills, Jr., Is Amendment 2 Really a Bill of Attainder? Some Questions About Professor Amar's Analysis of Romer, 95 MICH. L. REV. 236, 240 (1996).
59. See United States v. Brown, 381 U.S. 437, 454 n.29 (1965); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 646 n.25 (2d ed. 1988).
60. See Brown, 381 U.S. at 450-56.
61. Notwithstanding the dubious decision in Nixon v. Administrator of General Services, 433 U.S. 425, 472 (1977), which held that a statute specifically regulating the disposition of former President Nixon's papers, and of his alone, did not amount to a bill of attainder because Nixon constituted a "legitimate class of one."
62. See, e.g., Heckler v. Mathews, 465 U.S. 728 (1984) (upholding a gender-discriminatory allocation of social security benefits).
63. See Herbert Hovenkamp, Legal Policy and the Endowment Effect, 20 J. LEGAL STUD. 225 (1991).
64. See, e.g., BRENNAN & BUCHANAN, supra note 4, at 29-30.
65. An important special case of durability arises where the decisionmaker anticipates that she will occupy different, even opposed, roles in a series of future transactions that will be governed by a durable legal rule. This veil mechanism appears most commonly in nonconstitutional contexts. A decisionmaker who must choose rules of contract law, for example, might be led to choose impartially by anticipating that (1) the rules will govern a long series of future contracts and that (2) she will sometimes occupy the role of buyer, sometimes the role of seller.
66. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 49 (Max Farrand ed., 1966).
67. Id. at 531.
68. See Fitts, supra note 11, at 967 n.173;
69. John O. McGinnis, The Inevitable Infidelities of Constitutional Translation: The Case of the New Deal, 41 WM. & MARY L. REV. 177, 209 (1999).
70. See Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978) (invalidating a village ordinance that barred peaceful demonstrations by the American Nazi Party).
71. See Neal Kumar Katyal, Impeachment as Congressional Constitutional Interpretation, 63 LAW & CONTEMP. PROBS. 169, 186 (2000).
72. See ROBERT E. GOODIN, POLITICAL THEORY AND PUBLIC POLICY 162-83 (1982) (comparing an approach that discounts the distant future with an approach that ignores it on decision-theoretic grounds); Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. REV. 74, 123-28 (2000) (explaining why decisionmakers might rationally ignore the speculative future consequences of their decisions).
73. See ROBERT E. GOODIN, POLITICAL THEORY AND PUBLIC POLICY 162-83 (1982) (comparing an approach that discounts the distant future with an approach that ignores it on decision-theoretic grounds); Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. REV. 74, 123-28 (2000) (explaining why decisionmakers might rationally ignore the speculative future consequences of their decisions).
74. Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA. J. CONST. L. 345 (2000); Robert A. McGuire, Constitution Making: A Rational Choice Model of the Federal Convention of 1787, 32 AM. J. POL. SCI. 483 (1988) (stating that voting patterns at the Federal Convention correlated with the economic interests of constituents and, less strongly, with the economic interests of the delegates themselves).
75. Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. PA. J. CONST. L. 345 (2000); Robert A. McGuire, Constitution Making: A Rational Choice Model of the Federal Convention of 1787, 32 AM. J. POL. SCI. 483 (1988) (stating that voting patterns at the Federal Convention correlated with the economic interests of constituents and, less strongly, with the economic interests of the delegates themselves).
76. See Bush v. Gore, 531 U.S. 98, 109 (2000) (per curiam) ("Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.").
77. See Katyal, supra note 60, at 186.
78. "Ordinary" legislation should be understood to mean legislation that is, among other things, solely prospective when it does enter into effect. This excludes the intricate, but unprofitable, analytic complexities that would arise if legislatures could enact laws that would, upon taking effect after a delay, have retroactive effects on conduct occurring before or during the period of delay.
79. The closest analogue in the Federal Constitution is a matched pair of rules in Article I and in Article V. The Article I provision forbade Congress from prohibiting the "Migration or Importation of such Persons as any of the States now existing shall think proper to admit" (read: slaves) until the year 1808. U.S. CONST, art. I, § 9, cl. 1. The latter provision made the former provision unamendable before 1808 (at which point any amendment would be moot). Id. art. V. But the analogy is not very close. These rules prohibited action until a particular time certain; Congress could and did legislate in 1807 with no uncertainty at all about the distribution of benefits and burdens from the decision. DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE JEFFERSONIANS, 1801-29, at 6-7 (2001) (describing federal legislation enacted in 1807 that abolished the slave trade). A delayed-effectiveness rule, by contrast, produces veil-like effects only because it builds in a delay period that attaches no matter when the legislation is enacted or the decision made.
80. U.S. CONST. amend. XXVII.
81. This was an inaccuracy on Madison's part. The Amendment, as drafted and as eventually enacted, requires a delay only until the next election of representatives, not (also) of senators. We should probably see this as a raw compromise with the costs of delay: Waiting until after the whole Senate had been subject to reelection - that is, until after the next three senatorial elections - would prevent a medium-term adjustment of legislative salaries for little marginal gain in impartial decisionmaking.
82. 1 ANNALS OF CONG. 457-58 (Joseph Gales ed., 1789) (emphasis added).
83. U.S. CONST. art. I, § 6, cl. 2.
84. STORY, supra note 28, § 440, at 311.
85. A somewhat different account of the purpose of the Clause emphasizes the fear that legislative-executive collusion would create an excessive number of new federal offices, expanding the federal government at the expense of the states. John F. O'Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 HOFSTRA L. REV. 89, 164-68 (1995).
86. This is something of an exaggeration, because even a permanent disability would leave scope for legislators to advance friends and relatives to federal offices, to create a new office in the hope of assuming an old office after its current occupant has moved to the new one, or to carry out other subtle schemes of evasion. But the Framers argued that suppressing the core case of biased decisionmaking would be worthwhile even if other (but costlier) substitutes remained available. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 56, at 387-89.
87. Id. at 308.
88. Not merely confirmed to the office. The consistent practice has been to treat nomination as a component of appointment. O'Connor, supra note 71, at 105. The legislator may not, therefore, demand that the President nominate him to the office before voting on the bill - any action necessary to place the legislator in the new or enhanced office must wait until after the completion of the legislator's term.
89. In this century, the Clause has been partially diluted by the so-called Saxbe fix, in which Congress attempts to remove a legislator's disability under the Clause by reducing the compensation of the office to the level prevailing at the beginning of the legislator's current electoral term. Therefore, if Congress raises the salary of the Secretary of the Treasury, and the President nominates a sitting senator to the post, the Saxbe fix purports to remove the senators ineligibility. See Michael Stokes Paulsen, Is Lloyd Bentsen Unconstitutional?, 46 STAN. L. REV. 907, 908-09 (1994). Nothing I say here turns upon the much-debated question whether the Saxbe fix is constitutional.
90. John O. McGinnis, Justice Without Justices, 16 CONST. COMMENT. 541, 545 (1999). In a similar vein is Michael Abramowicz's ingenious proposal that an en banc decision in any one federal circuit court of appeals should be made by courts of appeals judges randomly selected from other circuits - a proposal that Abramowicz justifies, in part, on the veil-like ground that "judges might make better decisions when the identities of those who will review the decisions are unknown." Michael Abramowicz, En Banc Revisited, 100 COLUM. L. REV. 1600, 1603 (2000).
91. John O. McGinnis, Justice Without Justices, 16 CONST. COMMENT. 541, 545 (1999). In a similar vein is Michael Abramowicz's ingenious proposal that an en banc decision in any one federal circuit court of appeals should be made by courts of appeals judges randomly selected from other circuits - a proposal that Abramowicz justifies, in part, on the veil-like ground that "judges might make better decisions when the identities of those who will review the decisions are unknown." Michael Abramowicz, En Banc Revisited, 100 COLUM. L. REV. 1600, 1603 (2000).
92. THE FEDERALIST No. 73, supra note 20, at 419 (Alexander Hamilton).
93. See JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 25 (1994).
94. See BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 42-93 (1997).
95. See JON ELSTER SOLOMONIC JUDGMENTS 36-37 (1989) (explaining "the nonadoption of lotteries in situations where they would seem to be normatively compelling" on the basis that we have a strong reluctance to admit uncertainty and indeterminacy in human affairs. Rather than accept the limits of reason, we prefer the rituals of reason").
96. By "independent" executive action, I mean executive action taken pursuant to a freestanding grant of constitutional authority, such as the pardon power or the power to appoint principal officers, rather than action taken in the President's capacity as a participant in the process of statutory enactment, such as the signature or veto of a bill. So I assimilate restrictions on the President's action in his capacity as legislator-in-chief into restrictions on the Congress itself. That the President, for example, may not constitutionally sign into law a bill that raises legislative salaries until an election of representatives has intervened - because the Twenty-Seventh Amendment bars such a law - counts, in my view, as a restriction on Congress, not on the President. The rationale for the categorization, in this example, is not that the salaries being raised are those of the Congress. The Constitution also prohibits altering the President's salary during his term of office, U.S. CONST, art. II, § 1, cl. 7 (thanks to Saul Levmore for reminding me of this provision), but since the President's salary must be altered by statute, that rule too counts in my schema as a restriction on Congress. Classifying veil rules in this way may overstate the skewed character of the constitutional distribution, but classifying such cases as restrictions on the President might be taken to understate the skew. There is no neutral baseline. I have chosen the former approach because the Framers invariably conceived rules such as the Ex Post Facto Clause as restrictions on legislative rather than executive power, despite the fact that such rules prevent the President from signing a retroactive criminal law just as much as they prevent the Congress from enacting one.
97. See supra note 35.
98. See 6 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 217-25, 240-41 (1927).
99. Cf. Michael A. Simons, Prosecutorial Discretion and Prosecution Guidelines: A Case Study in Controlling Federalization, 75 N.Y.U. L. REV. 893, 930-36 (2000) (arguing, among other things, that more specific prosecutorial guidelines, by controlling prosecutorial discretion, would prevent unfair treatment of individual defendants).
100. See VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 490-91 (1999) (comparing judicial review mechanisms across judicial systems).
101. Hills, supra note 48, at 242; see also Krent, supra note 35, at 41, 85-90 (arguing that "legislative retroactivity in the criminal context is more disfavored than lawmakmg by judges" because institutional-design features such as life tenure insulate judges from interest-group pressures).
102. THE FEDERALIST No. 10, supra note 20, at 125-26 (James Madison).
103. See Levmore, supra note 12, at 2099-2101.
104. Cf. ELSTER, supra note 19, at 145 (noting that delaying the effective date of constitutions is "utopian and probably undesirable" because "[d]emands for constitution-making or constitutional revision tend to arise in times of crisis in which waiting is an unaffordable luxury").
105. See THE FEDERALIST No. 70, supra note 20, at 402 (Alexander Hamilton) (discussing "[e]nergy in the executive").
106. The modern federal judiciary has developed a great deal of control over its own agenda through such devices as standing and justiciability rules, see, e.g., Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring), doctrines of equitable restraint, see, e.g., Younger v. Harris, 401 U.S. 37, 48-50 (1971), and the development of discretionary certiorari. But it should be noted that quite early in its history, the federal judiciary moved to assert control over its activities. See, e.g., Hayburn's Case, 2 U.S. (2 Dall.) 408, 410 n.a (1792) (listing circuit court opinions declining to give Congress and the Secretary of War nonbinding opinions on pension applications).
107. DAVID F. EPSTEIN, THE POLITICAL THEORY OF THE FEDERALIST 186 (1984) (noting that Locke and Hamilton spoke of the judicial power as a component of the executive power).
108. There are only a handful of conflict-of-interest rules in the Constitution. In addition to the previously discussed provision that bars the Vice President from presiding over a Senate impeachment trial of the President, see supra note 28, other examples are Article I, Section 9, Clause 8, which bars officeholders from accepting foreign gifts or titles without the consent of Congress; Article II, Section 1, Clause 2, which prohibits members of Congress and federal officers from serving in the Electoral College; and Article II, Section 1, Clause 7, which bars the President from accepting any emolument from the states during his term in office.
109. THE FEDERALIST NO. 44, supra note 20, at 287-88 (James Madison).
110. Id. at 288.
111. See THE FEDERALIST No. 70, supra note 20, at 402-03 (Alexander Hamilton).
112. See THE FEDERALIST No. 71 (Alexander Hamilton) (arguing for four-year presidential terms on this basis).
113. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
114. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09 (1988) (stating that agencies may make retroactive rules only under clear statutory authorization).