Deciding not to decide: Deferral in constitutional design

International Journal of Constitutional Law

Volumn 9, Issue 3-4, 2011, Pages 636-672

  Dixon, Rosalind ^a   Ginsburg, Tom ^a  

^a NONE

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EID: 84856683959     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mor041     Document Type: Article

References (133)

1. Anne Norton, Republic of Signs 124 (1993).
2. Jon Elster, Intertemporal Choice and Political Thought, in Choice over Time 35 (George Loewenstein & Jon Elster eds., 1992).
3. Cass Sunstein, Designing Democracy: What Constitutions Do 241 (2001).
4. See also F.A. Hayek, The Constitution of Liberty 179 (1960).
5. See Gordon S. Wood, The Creation of the American Republic, 1776-1787 379 (1983) (quoting Webster).
6. See also French Declaration of Rights of Men and Citizens art. 28 ("A people have always the right of revising, amending and changing their Constitution. One generation cannot subject to its laws future generations.").
7. On veil of ignorance rules in constitutional design, see Jon Elster, Arguing and Bargaining in Two Constituent Assemblies, 2 U. Pa. J. Const. L. 345, 374-75 (2000).
8. See also Const. of Thailand art. 30 (2006) ("members of the Constitution Drafting Assembly shall not be able to run for a post as members of the Parliament or senators during a period of two years after the expiration of their office in the Constitution Drafting Assembly.").
9. This would accord with a classic principal-agent understanding of the drafting process.
10. See, e.g., Eric Posner, Agency Models in Law and Economics (John M. Olin Law & Economics Working Paper No. 92, 2nd Series, 2000).
11. For evidence of self-interest on the part of drafters, see Robert McGuire & Robert Ohsfeldt, Public Choice Analysis and the Ratification of the Constitution, in The Federalist Papers and the New Institutionalism 175 (Bernard Grofman & Donald Wittman eds., 1989) (using statistical analysis to evaluate the voting behavior of the delegates to the U.S. constitutional convention and subsequent state ratification processes, and find some support for public choice hypotheses of economic self-interest among participants).
12. Robert McGuire & Robert Ohsfeldt, Self-Interest, Agency Theory, and Political Voting Behavior: The Ratification of the United States Constitution, 79 Am. Econ. Rev. 219 (1989).
13. Compare David Epstein & Sharyn O'Halloran, Delegating Powers: A Transaction Cost Politics Approach to Policy Making Under Separate Powers (1999).
14. See, e.g., Jon Elster, Forces and Mechanisms in the Constitution-Making Process, 45 Duke L.J. 364, 377-78 (2005).
15. On this distinction, see, e.g., Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Stud. 399 (1973).
16. Adam M. Samaha, Undue Process, 59 Stan. L. Rev. 601 (2006).
17. See Zachary Elkins, Tom Ginsburg & James Melton, The Endurance of National Constitutions (2009).
18. Comparative Constitutions Project, http://www.comparativeconstitutionsproject.org (last visited Mar. 22, 2011).
19. In federal systems, of course, constitutional silence can raise complex questions as to whether national or rather state or local legislature have power to act in a particular context.
20. On the different ways of drawing this line, see, e.g., Rosalind Dixon & Eric A. Posner, On the Limits of Constitutional Convergence, 11 Chicago J. Int'l L. 399, 406-408 (2011).
21. This, for example, is often the case wiconstitutional vagueness: sometimes vague constitutional language may indicate a decision to delegate decision-making on a constitutional question to future decision-makers, but in other cases, it may equally be evidence of a (more or less conscious) decision by constitution-makers not to address a particular issue. See infra notes 55-60.
22. For some "by law" clauses, there is the possibility that the topic they address would not otherwise in fact be included in the constitution. In such cases, the constitutional decision to include the topic but leave it to law does involve deferral, but is not constitutional deferral in the fullest sense of postponing a clearly constitutional decision to the future. We nonetheless treat such clauses as within the scope of our analysis, because it is almost impossible to separate out, without detailed knowledge of a particular constitutional context, which clauses fall into this category.
23. Mean numbers of by law clauses by region are 5.15 for the Middle East/North Africa Region, 3.95 for Sub-Saharan Africa, 3.93 for South Asia, 2.53 for Eastern Europe, 2.49 for Western Europe, 2.21 for East Asia and 1.68 for Latin America.
24. For constitutions put into force before 1919, the mean is 1.56; for the interwar period it is 2.21, and for the postwar period it is 3.50.
25. As Professor Samaha pithily summarizes, "[d]ecision costs are associated with reaching a decision; error costs are a possible consequence of that decision.".
26. Some models of constitution-making admittedly involve more negotiation than others.
27. See, e.g., discussion in Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community 288-308 (2010) (discussing six models of constitution-making, among which at least three-i.e. the "revolution", "invisible" and "war"-based models-will tend to involve little negotiation among different domestic parties).
28. The degree to which various constitutional choices are understood as more or less settled or uncontroversial will depend, in part, on the reasons a new constitution is being adopted. Where a constitution is adopted as part of an attempt to transform a particular political system, for example, there will often be quite limited background agreement.
29. Compare David Fontana, Revolutionary and Reorganizational Constitutions (Working Paper 2011) (distinguishing between revolutionary versus more 'reorganizational', forms of constitutional change).
30. Karl Klare, Legal Culture & Transformative Constitutionalism, 14 S. Afr. J. Hum. Rts. 146 (1998) (distinguishing between transformative and more conservative forms of constitutionalism).
31. J. Alexander Thier, Big Tent, Small Tent: The Making of a Constitution in Afghanistan, in Framing the State in Times of Transition: Case Studies in Constitution Making 535, 558 (Laurel Miller ed., 2010).
32. Louis Aucoin & Michele Brandt, East Timor's Constitutional Passage to Independence, in Framing the State in Times of Transition: Case Studies in Constitution Making 245, 254 (Laurel Miller ed., 2010).
33. Jonathan Morrow, Deconstituting Mesopotamia: Cutting a Deal on the Regionalization of Iraq, in Framing the State in Times of Transition: Case Studies in Constitution Making 563, 571-75 (Laurel Miller ed., 2010).
34. Const. of Kenya Review Bill (2008).
35. See Laurel Miller, Designing Constitution-Making Processes: Lessons from the Past, Questions for the Future, in Framing the State in Times of Transition: Case Studies in Constitution Making 601, 638-41 (Laurel Miller ed., 2010) (discussing a range of cases with shorter and longer processes).
36. David Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 907 (1996).
37. In this sense, the design problem will tend in most cases far more closely to resemble a "battle of the sexes" game, than a pure coordination game.
38. See Rosalind Dixon, Updating Constitutional Rules, 2009 Sup. Ct. Rev. 319.
39. For exploration of the structure of the two different games, see also Douglas Baird, Robert Gertner & Randal Picker, Game Theory and the Law (1994).
40. See, e.g., Foundations of Contract Law (Richard Craswell & Alan Schwartz eds., 1994).
41. U.S. Const. art. I, § 9, cl. 1. This is an example of a transitional clause used to secure the constitutional bargain. Other examples include the Interim Constitution of South Africa, which contained a provision entrenching a grand coalition government for five years after the first democratic election.
42. Heinz Klug, Constituting Democracy: Law, Globalism and South Africa's Political Reconstruction 115 (2000).
43. See generally, Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996).
44. Barry Weingast, Designing Constitutional Stability, in Democratic Constitutional Design and Public Policy: Analysis and Evidence (Roger D. Congleton & Birgitta Swedenborg eds., 2006).
45. Ben Baack et al., Constitutional Agreement During the Drafting of the Constitution: A New Interpretation, 38 J. Leg. Stud. 533, 536-39 (2009).
46. See, e.g., Tortsen Persson & Guido Tabellini, The Economic Effects of Constitutions (2003).
47. Tom Ginsburg, Constitutional Engineering, in Taiwan: The Implications of Global Trends (2005).
48. Richard Fallon et al., The Federal Courts and the Federal System (2003).
49. John Andrew La Nauze, Making of the Australian Constitution 25 (1974) (noting initial proposal that the constitution itself create lower federal courts), 130-31 (noting small state opposition to new, costly federal institutions and manner in which compromise over "by law" clause was achieved).
50. This difference between the two parties was well-illustrated by the very different draft constitutional property clauses they initially proposed at Kempton Park. The property clause proposed by the NP government provided that "every person shall have the right, individually or with others, to acquire, possess, enjoy, use and dispose of... any form of movable and immovably property" and that property could only be expropriated "for public purposes, subject to the payment within a reasonable time of an agreed compensation, or failing such an agreed compensation, [to] compensation in cash determined by a court of law according to the market value of the property." The ANC, on the other hand, had adopted a draft Bill of Rights, that provided that the government could acquire property in order to achieve the objectives of the Constitution [i.e. racial and economic transformation] and compensation for any such taking should be based on "an equitable balance between the public interest and the interest of those affected;" and requiring that legislation provide "that the system of administration, ownership, occupation, use and transfer of land is equitable, directed at the provision of adequate housing for the whole population, promotes productive use of land and provides for stable and secure tenure.".
51. Matthew Chaskalson, Stumbling Towards Section 28: Negotiations Over the Protection of Property Rights in the Interim Constitution, 11 S. Afr. J. Hum. Rts. 222, 224-26 (1995).
52. See also Lungisile Ntsebeza, Land Distribution in South Africa: The Property Clause Revisited, in The Land Question in South Africa: The Challenge of Transformation and Redistribution (Lungisile Ntsebeza & Ruth Hall eds., 2007).
53. Cheryl Walker, The Limits to Land Reform: Rethinking 'the Land Question,' 31 J. S. Afr. Stud. 805, 812 (2005).
54. Const. of South Africa 1996, § 25.
55. Compare the Settlement/Land Acquisition Grant (SLAG) program and Land Redistribution for Agricultural Development (LRAD) program, created under the auspices of the Provision of Land and Assistance Act of 1993. See also Provision of Certain Land for Settlement Amendment Act 26 of 1998 (amending the 1993 Act).
56. Of course, this shift in 1997 has also attracted significant criticism from many supporters of land reform in South Africa: see, e.g., Edward Lahiff, 'Willing Buyer, Willing Seller': South Africa's Failed Experiment in Market-Led Agrarian Reform, 28 Third World Q. 1577 (2007).
57. Our model leaves out variables focused on shocks to the system that might impact constitutional life.
58. We also examine what we identify below as a substitute method of deferral, constitutional vagueness (as captured in the model by its inverse, detail). Constitutional detail shows no statistically significant relationship with a constitution's predicted lifespan. See infra, text at note 59-62, for a discussion of vagueness as a potential substitute for deferral and a description of the detail variable. One plausible reason for this non-result, we suggest, is that vagueness tends to be used more frequently to address potential decision costs, which are sunk at the moment of constitutional design, as opposed to error costs, which may increase with time. Explicitly delegating matters to a future legislature can promote endurance because it puts decisions in the hands of the governmental actors best positioned to address error costs. Vagueness, on the other hand, delegates to courts who may be less well-positioned to take into account all relevant information in a particular policy area. We should also note that the full model reported in Elkins et al. found that detail extended constitutional life, so our non-result may be an artifact of our reduced model.
59. See, e.g., Kathleen Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv. L. Rev. 22 (1992).
60. Albert Choi & George Triantis, Strategic Vagueness in Contract Design: The Case of Corporate Acquisitions, 119 Yale L.J. 848, 883 (2010).
61. U.S. Const., Art. I, § 9, cl. 1. A number of other examples can be found in the Australian Constitution, which capped the percentage of customs duties that the Commonwealth could apply to its own purposes for a 10 year period; limited the automatic power of the Commonwealth to grant state aid to a similar period; and allowed one state (Western Australia) to impose special import duties after the imposition of otherwise uniform customs duties, but only for a five year period: see Const. of Australia 1901, §§ 87, 95.
62. Const. of Australia 1901, §§ 87, 95.
63. Javier Martinez-Lara, Building Democracy in Brazil (1996).
64. Afghanistan's Hamid Karzai used the same technique after switching the constitutional structure from parliamentary to presidential, announcing at the Constitutional Loya Jirga that the decision could be revisited in five or ten years.
65. Section 43(2).
66. One such error was that, in spelling out the scope for positive discrimination in the context of employment under the constitution, the drafters failed to include similar provisions in connection with more general equality guarantees; and while this was almost certainly not intentional, given the desire of the drafters to provide wide-ranging redress to those historically disadvantaged by the caste system, it was read by the Indian Supreme Court as implicitly raising the bar to the government adopting such measures: see State of Madras v. Dorairajan, A.I.R. 1951 S.C. 227 (holding that the omission of these words from Art. 29 "cannot but be regarded as significant"). However, because of the relative ease of amending most provisions of the Indian Constitution, the Lok Sabha was readily able to correct this, by adding additional language clarifying the permissibility of such measures generally (in 1951), and then specifically in the context of education (in 2005): see Constitution (First Amendment) Act, 1951, s. 2; Constitution (Ninety-third Amendment) Act, 2005, s. 2 (w.e.f. 20-1-2006).
67. But see also Burt Neuborne, The Supreme Court of India, 1 Int'l J. Const. L. (IRiyazCON) 476 (2003).
68. Gary Jeffrey Jacobsohn, An Unconstitutional Constitution? A Constitutional Perspective, 4 Int'l J. Const. L. (IRiyazCON) 460 (2006) (on the limits on the power of amendment imposed by the Basic Structure doctrine created by the Supreme Court).
69. See Jacob A. Gersen, Temporary Legislation, 74 U. Chi. L. Rev. 247, 248, 267 (2007).
70. Rosalind Dixon, Constitutional Amendment: a Comparative Perspective, in Comparative Constitutional Law (Rosalind Dixon & Tom Ginsburg eds., 2011).
71. On this measure, roughly half the constitutions in the sample had flexible procedures.
72. A negative binomial model produces comparable results.
73. James D. Fearon, Ethnic and Cultural Diversity by Country. 8 J. Econ. Growth 195 (2003).
74. We think of ethnic fragmentation as a rough proxy for the effect of social and political disagreement on deferral. Fearon's fractionalization measure is a continuous one that increases with internal diversity and does not capture the intensity of internal cleavages, and is thus an imperfect measure of constitutional disagreements. For example, it might be the case that a country with three ethnic groups of equal size would be more divided than one with a large number of different small groups (i.e. highly pluralistic societies).
75. In our terms, this would raise decision costs by disincentivizing deal-making.
76. For an example of the consequences might be of a decision to classify an issue as constitutional, as opposed to sub-constitutional, see, e.g., John Rawls, Political Liberalism (2005) (1971) (arguing that the requirements of "public reason giving" apply to all matters involving "constitutional essentials" but not other background issues).
77. For this term, see Richard Fallon, Implementing the Constitution (2001).
78. For the argument that legislatures are in fact better, see Adrian Vermeule, Law and the Limits of Reason (2008).
79. Adrian Vermeule, Many-Minds Arguments in Legal Theory, 1 J. Legal Analysis 1 (2009).
80. Compare Ran Hirschl, Toward Juristocracy: The Origins and Consequences of the New Constitutionalism (2004).
81. Courts, of course, often play a secondary role in delimiting the scope of such decision-making authority, or forcing legislatures to act.
82. See, e.g., Jeremy Waldron, Law and Disagreement (2001).
83. "Stickiness," of course, may also have some benefits, given the importance of some basic level of overall constitutional stability or settlements. (On the benefits of stability, or constitutional settlement, see, e.g., Holmes, infra at note 101 and Eisgruber, infra at note 102). From the perspective of specific constitutional issues, however, stickiness that is unrelated to support for a particular constitutional norm seems more problematic.
84. Stephen M. Griffin, The Nominee Is... Article V, in Constitutional Stupidities, Constitutional Tragedies 51 (William N. Eskridge, Jr. & Sanford Levinson eds., 1998).
85. Griffin makes this argument most specifically in the context of the U.S. Constitution, but others have made similar arguments in a comparative context.
86. See, e.g., Janet L. Hiebert, Limiting Rights: The Dilemma of Judicial Review (1996).
87. See Christopher McFadden, Judicial Independence, Age-Based BFOQS, and the Perils of Mandatory Retirement Policies for Appointed State Judges, 52 S. Carolina L. Rev. 81 (2000).
88. G. Alan Tarr, Designing an Appointive System: The Key Issues, 34 Fordham Urban L. J. 291 (2007).
89. In the U.S., see, e.g., Jane J. Mansbridge, Why We Lost the ERA (1986).
90. India is, of course, one clear exception to this, though it is likely not an exception that was contemplated by the framers of the 1950 Indian Constitution. South Africa has also come close to becoming an exception in this regard in recent years.
91. Const. of Iraq, Art. 142.
92. CBC News, Martin wraps campaign in constitutional pledge, available at http://www.cbc.ca/story/canadavotes2006/national/2006/01/09/elxn-debates-look.html (last visited Mar. 22, 2011).
93. See, e.g., Const. of Australia, Ch. IV (adopting various sunset clauses, in combination with interim default arrangements, in the context of controversies over federal tariffs, customs duties and the appointment of federal revenue).
94. John Andrew La Nauze, The Making of the Australian Constitution 41, 43, 71-72 (1972).
95. See Const. of Australia, Ch IV.
96. Harmonized Draft Const. of Kenya, 17th November, 2009, Art. 35.
97. Revised Harmonized Draft Constitution of Kenya, 29 January 2010, Art. 25(4) ("Abortion is not permitted unless in the opinion of a registered medical practitioner, the life of the mother is in danger.").
98. Proposed draft Constitution of Kenya, 23 February 2010, Art. 26(4) ("Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.").
99. LifeSiteNews.com, More U.S. Taxpayer Funds for Pro-Abortion Kenyan Constitution: Rep. Smith, available at http://www.lifesitenews.com/ldn/2010/may/10052606.html (last visited Feb. 4, 2011).
100. Jeffrey Gettleman, Kenyans Approve New Constitution, N.Y. Times, August 5, 2010, at A7.
101. Consider, e.g., the controversy over the decision of the Hong Kong Court of Final Appeal in Ng Ka Ling v. Director of Immigration, 1 H.K.L.R.D. 315 (1999). See discussion in Frank Shihong Hong, Ng Ka Ling v. Director of Immigration. 2 HKCFAR 4. Court of Final Appeal of the Hong Kong Special Administrative Region, January 29, 1999.
102. Lau Kong Yung v. Director of Immigration, 94 Am. J. Int'l L. 167, 167-71, 170-71 (2000).
103. For controversy over the issue prior to 1999, see also Robin M. White, Nationality and Hong Kong: A Tragedy in Five Acts?, 6 Asia Pacific L. Rev. 23 (1998).
104. On Israel, see Yoav Peled, Citizenship Betrayed: Israel's Emerging Immigration and Citizenship Regime, 8 Theoretical Inq. L. 603 (2007).
105. Daphne Barak-Erez, Citizenship and Immigration Law in the Vise of Security, Nationality, and Human Rights, 6 Int'l J. Const. L. (IRiyazCON) 184-192 (2008).
106. See also Adalah v. Minister of the Interior, [2006] HCJ 7052/03 (Isr.) (family unification of Israeli Arab citizens and Palestinian spouses).
107. Art. 44. (our emphasis).
108. Const. Haiti, art. 4 (1950).
109. Art 22(4).
110. Despite the size of the CCP database, the numbers of "by law" clause for any given topic and the lack of data coverage for the independent variables analyzed in Figure 2 meant that it was not possible to conduct any meaningful multivariate analyses on this question.
111. Table 2 refers to 90 constitutions that defer this issue. Our sample is 81. The remaining nine clauses in the full sample were not examined yet because of translation issues.
112. See Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 Univ. Chicago L. Rev. 361 (2004) (identifying rationales for constitutionalizing issues that might be left to the legislature, including a comparative advantage in information, might be free of cognitive biases, and might act in a more public spirited manner).
113. Constitutional vagueness may, of course, also carry similar dangers. The degree to which this is the case will likely depend on the degree to which courts have discretion to control their docket: the more such discretion they have, the less likely it is they will be overburdened by the fact of delegation, but conversely, the more scope there is for them to avoid addressing core constitutional questions.
114. Compare Louis Michael Seidman, Our Unsettled Constitution: A New Defense of Constitutionalism and Judicial Review (2001).
115. Compare Frank I. Michelman, Foreword: Traces of Self-Government, 100 Harv. L. Rev. 4 (1986).
116. Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy 167 (1997).
117. Christopher L. Eisgruber, Constitutional Self-Government (2001).
118. Indeed, some would argue that the continued failure to develop political parties ensures that this iteration of Afghan democracy will also fail.
119. BBC News, New Iraqi Election Law Approved, http://news.bbc.co.uk/2/hi/8398377.stm (last visited Mar. 22, 2011).
120. See Briefing by U.S. Ambassador to Iraq, Christopher R. Hill, Washington DC, August 17, 2010.
121. See Const. of Australia, §§ 30, 31.
122. Compare Commonwealth Franchise Act 1902 and Commonwealth Electoral Act 1918.
123. One arguable example of this, though it involves what is clearly a qualified form of mandatory obligation, involves Art 44 of the Indian Constitution, and the obligation of the state "to endeavour to secure for the citizens a uniform civil code throughout the territory of India." See, e.g., Maharishi Avadesh v. Union of India, [1994] 1 Supp S.C.C. 713 (India) (dismissing petition seeking a writ of mandamus against the Government of India with respect to implementation of a common civil code, taking the view that this was a matter for the legislature). See also Pannalal Bansilal Patil v. State of Andhra Pradesh, [1996] 2 S.C.C. 498 (India) (observing that a uniform law for all persons might be highly desirable, but its enactment in one go might be counter-productive for the unity of the nation).
124. Massachusetts v. EPA, 549 U.S. 497 (2007); Baker v. Vermont, 744 A.2d 864 (Vt. 1999).
125. Tom Ginsburg, Judicial Review in New Democracies (2003).
126. On burdens of inertia in the legislative process, see, e.g., Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 Stud. Am. Pol. Dev. 35 (1993).
127. William N. Eskridge, Jr. & Phillip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 87-95 (1994).
128. Rosalind Dixon, A New Theory of Charter Dialogue: The Supreme Court of Canada, Charter Dialogue & Deference, 47 Osgoode Hall L. J. 235 (2009).
129. Political Database of the Americas, http://pdba.georgetown.edu/ (last visited Mar. 22, 2011).
130. Matthew Taylor, Judging Policy: Courts and Policy Reform in Democratic Brazil (2008).
131. The failure led to the assertion by the region of authority to pass its own law, with a correspondent loss of popular authority for the national government: see Iraq's Economy: Oil's Not Well in Iraq, The Economist, April 20, 2007.
132. Constitutional endurance, of course, is not the only value that constitution-makers should consider in the process of constitutional design. The substance of a constitution, in particular its ability to promote social and political stability, and reliable minority rights protection, are clearly also of central importance. At the same time, without some level of endurance, on the part of a constitution, both of these substantive ideals will largely be unrealizable.
133. See Figure 1.