Updating constitutional rules

Supreme Court Review

Volumn 2009, Issue , 2009, Pages 319-346

  Dixon, Rosalind ^a  

^a UNIVERSITY OF CHICAGO LAW SCHOOL   (United States)

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[No Author keywords available]

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EID: 84859018410     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/653651     Document Type: Review

References (144)

1. Contrast Adrian Vermeule, Constitutional Amendments and the Common Law, in Richard W. Bauman and Tsvi Kahana, eds, The Least Examined Branch: The Role of Legislatures in the Constitutional State 230 (Cambridge, 2006).
2. Compare also T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 Mich L Rev 20 (1988). The term, however, is obviously itself one which raises complex problems of boundary definition.
3. David Strauss, The Irrelevance of Constitutional Amendments, 114 Harv L Rev 1457, 1487 (2001) (hereafter Irrelevance).
4. William Eskridge, Jr., and John Ferejohn, Super-Statutes, 50 Duke L J 1215 (2001). (Pubitemid 33651482)
5. See Donald S. Lutz, Toward a Theory of Constitutional Amendment, in Sanford Levinson, ed, Responding to Imperfection: The Theory and Practice of Constitutional Amendment 237 (Princeton, 1995)
6. Rosalind Dixon, Partial Constitutional Amendment (Working Paper 2010) (on file with author).
7. Strauss, Irrelevance, 114 Harv L Rev 1457 (cited in note 2).
8. See Mark Tushnet, Constitutional Workarounds, 87 Tex L Rev 1499 (2009).
9. On the rules-standards distinction, especially in a doctrinal setting, see, e.g., Kathleen Sullivan, Foreword: The Justices of Rules and Standards, 106 Harv L Rev 22 (1992).
10. see Ashby Jones, Does Congress Need More Members? A Lawsuit Says Yes. Lots More, Wall St J Law Blog (Sept 16, 2009), online at: http://blogs.wsj.com/ law/2009/09/18/should-wedouble- the-size-of-the-house-a-lawsuit-says-yes/.
11. There are, of course, some instances in which the political branches adopt certain constitutional "workarounds" designed to update the effective operation of such rules, and for one reason or another, these workarounds escape judicial consideration: see Tushnet, 87 Tex L Rev 1499 (cited in note 6). However, in many cases, the validity of such workarounds will ultimately come before the Court for consideration in a way that does then raise this same problem of constitutional rule updating.
12. For a defense of this position from a generally conservative, textualist approach to interpretation, see, e.g., Frank Easterbrook, Statute's Domains, 50 U Chi L Rev 533 (1983)
13. See Jack M. Balkin, Original Meaning and Constitutional Redemption, 24 Const Comm 427 (2007) (hereafter Constitutional Redemption)
14. Jack M. Balkin, Abortion and Original Meaning, 24 Const Comm 291, 301 (2007) (hereafter Original Meaning)
15. Robert Post and Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv CR-CL L Rev 373 (2007).
16. Post and Siegel, 42 Harv CR-CL L Rev (cited in note 10).
17. David Strauss, Common Law Constitutional Interpretation, 63 U Chi L Rev 877 (1996) (hereafter Constitutional Interpretation) (Pubitemid 126408724)
18. Balkin, Original Meaning, 24 Const Comm at 301 (cited in note 10).
19. See Strauss, Constitutional Interpretation, 63 U Chi L Rev at 881 (cited in note 12)
20. Balkin, Original Meaning, 24 Const Comm at 305(cited in note 10).
21. Contrast William J. Brennan, Jr., Construing the Constitution, 19 UC Davis L Rev 2 (1985).
22. 24 US 417 (1998).
23. 514 US 779 (1995).
24. For sympathetic proposals, albeit restricted to the interpretation of Article II of the Constitution, compare Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U Chi L Rev 123 (1994).
25. Strauss, Constitutional Interpretation, 63 U Chi L Rev at 907 (cited in note 12).
26. Strauss, Irrelevance, 114 Harv L Rev at 1487 (cited in note 2).
27. Richard A. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J Legal Stud 399 (1973)
28. Adam M. Samaha, Undue Process, 59 Stan L Rev 601 (2006-2007).
29. Compare Adam Samaha, Originalism's Expiration Date, 30 Cardozo L Rev 1295, 1354-63 (2008).
30. Douglas Baird et al, Game Theory and the Law (Harvard, 1994).
31. Contrast Strauss, Constitutional Interpretation, 63 U Chi L Rev at 916-17 (cited in note 12) (suggesting few Constitutional rules are likely to involve issues that are charged in this way).
32. See discussion in Lynn A. Baker and Samuel H. Dinkin, The Senate: An Institution Whose Time Has Come? 13 J L & Pol 21, 41 (1997) (citing KSG study).
33. Neil Malhotra and Connor Raso, Racial Representation and the U.S. Senate Apportionment, 88 Soc Sci Q 1038, 1046 (2007).
34. Baker and Dinkin, 13 J L & Pol at 45(cited in note 29) (reporting a statistically significant correlation at the 5percent level). The measure of voting power they use in this context is the "Per Capita Shapley-Shubik Index."
35. Comprehensive Nuclear Test Ban Treaty, Sept 24, 1996, 35ILM 1443
36. United Nations Convention on the Law of the Sea, Dec 10, 1982, 21 ILM 1261. For discussion of the Comprehensive Nuclear Test Ban Treaty (CNTBT) and U.S. ratification efforts
37. see Editorial, The Test Ban Treaty, NY Times A18 (May 25, 2009).
38. For discussion of the United Nations Convention on the Law of the Sea (UNCLOS) and U.S. ratification efforts, see Michael A. Becker, International Law of the Sea, 43 Intl Law 915, 915-21 (2009).
39. John K. Setear, The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement, 31 J Legal Stud S5, S6 (2002).
40. But see Editorial, Banning the Ban, The Nation (Nov 8, 1999).
41. Editorial, The Test Ban Treaty, NY Times at A18 (cited in note 32).
42. Editorial, Rules of the Game, NY Times A28 ( Jan 30, 2009).
43. Associated Press, Bomb "Sniffers" Await Ban Treaty, Newsday A31 (May 24, 2009)
44. On Target, Finally; The National Ignition Facility, The Economist (U.S. edition) (May 30, 2009).
45. For general discussion of PSI, see Becker, 43 Intl Law at 923-24 (cited in note 32). For arguments against UNCLOS ratification on U.S. sovereignty grounds, see Editorial, A Sinkable Treaty, Wall St J A8 (Nov 3, 2007)
46. Frank Gaffney, Jr., Editorial, LOST Justice, Wash Times A17 (Oct 16, 2007).
47. On UNCLOS ratification strengthening PSI, see Editorial, Unbury This Treaty; The Senate Can Protect American Interests by Ratifying the Law of the Sea Convention, Wash Post A18 (Oct 31, 2007)
48. Becker, 43 Intl Law at 923-24 (cited in note 32).
49. For maritime passage, see James A. Baker and George P. Shultz, Why the "Law of the Sea" Is a Good Deal, Wall St J A21 (Sept 26, 2007).
50. One estimate is that, under the treaty, the United States would stand to claim an additional 500,000 square kilometers north of the Arctic Circle as a potential additional oil reserve: see Trevor Cole, Poles Apart; America's "We're Special" Attitude Is Freezing Out Other Countries-and Big Business-in the Arctic, The Globe and Mail (Canada) 30 (Oct 26, 2007). Others claim that the United States would do even better absent a treaty.
51. See, e.g., David R. Sands, Treaty Sparks Rivalries; Senate Fight Looms Amid Race to North Pole, Wash Times A01 (Nov 12, 2007).
52. See U.S. Census Bureau, Census of Population and Housing: 1790 Census, online at http: //www2.census.gov/prod2/decennial/documents/1790a-02.pdf.
53. See U.S. Census Bureau, Summary Population and Housing Characteristics Part 1, Table 1: Age and Sex: 2000, online at http://www.census.gov/prod/ cen2000/phc-1-1-pt1.pdf.
54. Baker and Dinkin, 13 J L & Pol 21 (cited in note 29).
55. Rosalind Dixon and Richard Holden, Designing Constitutional Amendment Rules-to Scale (paper for University of Chicago Conference on Constitutional Design, 2009), online at: http://faculty.chicagobooth.edu/richard.holden/papers/ DH.pdf (hereafter Designing Constitutional Amendment Rules).
56. Gordon Tullock and James Buchanan, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Michigan, 1965).
57. Dixon and Holden, Designing Constitutional Amendment Rules (cited in note 43).
58. This effect is also quite general and does not depend on the binary nature of outcomes in the "coin flip" setting. It applies even where there is a continuum of voter preferences and policy choices: see Richard Holden, Supermajority Rules (Working Paper, 2009), available online at: http://faculty.chicagobooth.edu/Richard.holden/papers/index.html.
59. See U.S. Senate, Rejected Treaties, online at: http://www.senate.gov/ artandhistory/history/common/briefing/Treaties.htm#5(noting 49 votes for, and 30 votes against, ratification of the Law of the Sea Convention in 1960-and thus 62 percent supermajority support for ratification). This, of course, ignores the possibility of strategic voting in the shadow of such an adjusted rule, both in 1960 and subsequently, but such a concern seems largely inapplicable in this context
60. see, e.g., Mike D. Shear, The Trail: The Law of the Sea: Almost Swimming in Support, Wash Post A4 (Nov 1, 2007) (noting increasing bipartisan support for the treaty)
61. Setear, 31 J Legal Stud at 6 (cited in note 33) (suggesting that this and other important treaties would likely have been brought to a successful floor vote under a lower supermajority rule).
62. Between 1803 and 1838, the ratio of treaties to executive agreements signed by the United States was roughly 2:1 (60 treaties and 27 executive agreements), and between 1840 and 1888 1:1 (215treaties and 238 executive agreements), whereas thereafter it was at least 1:2. See Treaties and Other International Agreements: The Role of the United States Senate, a Study Prepared for the Committee on Foreign Relations United States Senate by the Congressional Research Service Library of Congress, S Rep No 106-71 at 39, 106th Cong, 2d Sess ( Jan 2001).
63. For discussion of the effect of the two Acts, see, e.g., Bruce Ackerman and David Golove, Is NAFTA Constitutional? 108 Harv L Rev 799, 821-26 (1994-95)
64. Oona A. Hathaway, Treaties' End: The Past Present and Future of International Lawmaking in the United States, 117 Yale L J 1236, 1293-94 (2008).
65. Of course, the use of such congressional executive agreements also greatly increased from the 1930s and 1940s onward, both in the trade context and also much more broadly. This has led some commentators to argue that the overall shift in international lawmaking processes, from treaties to congressional-executive agreements, in fact constitutes a distinct informal Constitutional amendment to the Treaty Clause, which occurred around 1944-45. See Ackerman and Golove, 108 Harv L Rev at 873-900 (cited in note 50).
66. For the general acceptance of the interchangeability of treaties and congressionalexecutive agreements, see, e.g., Hathaway, 117 Yale L J at 1239 (cited in note 50)
67. Ackerman and Golove, 108 Harv L Rev at 806-08 (cited in note 50).
68. For doubts about the effectiveness of a line-item veto, though mostly as a means of reducing overall spending, rather than malapportioned spending, see, e.g., Baker and Dinkin, 13 J L & Pol at 34 (cited in note 29).
69. 524 US 417 (1998).
70. See, e.g., Madison, Notes of Debates in the Federal Convention 1787 109-11 (Athens, 1966) (noting relationship between debate on the age requirements for the Senate and debate over term limits).
71. See also Patrick J. Fett and Daniel E. Ponder, Congressional Term Limits, State Legislative Turnover: A Theory of Change, [1993] PS: Pol Sci & Politics 211 (June 1993)
72. Edward J. Lopez, Congressional Voting on Term Limits, 112 Public Choice 405, 406 (2001)
73. W. Robert Reed and D. Eric Schansberg, The House Under Term Limits: What Would It Look Like, 76 Soc Sci Q 699, 699-70 (1995).
74. 514 US 779 (1995).
75. Id at 779, 792 n 9. The Court also placed significant reliance on broader historical arguments, considered in Powell vMcCor mack, 395US 486 (1969), about the specific purposes of the Framers in this context. For a critical analysis of this part of the judgment
76. see, e.g., Harry H. Wellington, Term Limits: History, Democracy and Constitutional Interpretation, 40 NY L Sch L Rev 833 (1996).
77. 514 US 779, 797.
78. Lawrence Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv L Rev 1221, 1239-45(1995 ).
79. See, e.g., Roper vSimmons , 543 US 551, 555 (2005) (Kennedy, J) (suggesting that international practice served merely to "confirm" the Court's finding that the juvenile death penalty is unconstitutional)
80. Roper vSimmons , 543 US at 587 (O'Connor, J, dissenting) (suggesting that domestic norms were such that no international consensus could tip the balance toward invalidity)
81. Knight vFlorida 528 US 990, 993 (1999) (Breyer, J, dissenting from the denial of certiorari) (suggesting that international consensus was sufficient to tip the balance in favor of a grant of certiorari). In this sense, the deference due to legislative attempts to update constitutional rules under such an approach will closely resemble the weight given by the Court in recent cases to evidence of a foreign or international legal consensus in a particular constitutional area.
82. Compare Dixon, Working Paper 2010 (cited in note 4). In some cases, of course, there is also a further question as to how significant Court judgments themselves are to ultimate constitutional outcomes. See, e.g., debates over the significance of constitutional judgments such as INS vChadha concerning legislative vetoes: see Adam Samaha, Low Stakes (paper prepared for the symposium: The Judiciary and the PopularWill, University of Pennsylvania Journal of Constitutional Law, 2010) (on file with author).
83. In a context such as the Treaty Clause, involving core separation of powers issues, Constitutional avoidance by courts is particularly valuable because it allows Congress and the President to adopt new practices that can themselves act as a "gloss" on the meaning of the text of the Constitution: see Youngstown Sheet & Tube Co. vSawyer , 343 US 579 (1952) (Frankfurter, J, concurring).
84. For examples of avoidance, see, e.g., Ernest E. Marks Co. vUnited States, 117 F2d 542, 546 (CCPC 1941)
85. Wislar vUnited States, 97 F2d 152 (1938), cert denied 305 US 629 (1938).
86. For instances of deference in the application of the nondelegation doctrine prior to 1944, in the particular context of early congressional- executive agreements as substitutes for the treaty form: see, e.g., Field vClark , 143 US 649 (1892)
87. United States vCu rtiss-Wright Export Corp., 299 US 304 (1936).
88. 524 US 417, 473 (Breyer, J, dissenting).
89. Id at 468-73 (workable government), 498 (representative government).
90. See id at 497 (O'Connor and Scalia, JJ, dissenting (and concurring in part III of Breyer's reasoning rejecting automatic application of an expressio unius principle)).
91. Two areas in which such a principle might possibly apply, in addition to those already mentioned, are, for example, attempts by Congress to reduce the racially disparate impact of the two Senators rule or to reduce the resource implications, for the federal courts, of the Twenty Dollars Clause. (On the potential present-day error costs associated with such rules, see, e.g., Malhotra and Raso, 88 Soc Sci Quarterly at 1046 (cited in note 30)
92. Note, The Twenty Dollars Clause, 118 Harv L Rev 1665(2004 -2005).) In both cases, there is also a real question as to the scope of Congress's power under Article I to engage in forms of legislative rule updating by, for example, attempting to create increased minority representation in the House, under the Voting Rights Act of 1965(VRA), as a partial substitute for representation in the Senate, or Article I as opposed to Article III courts
93. see, e.g., Northwest Austin Municipal Utility District Number One vHolder , 129 S Ct 2504, 2508 (2009) (raising doubts about, though not ruling on, the constitutionality of certain provisions of the VRA)
94. Northern Pipeline Construction Co. vMarathon Pipe Line Co., 458 US 50, 67 (1982) (suggesting clear limits to the scope of Congress's power to establish Article I courts beyond cases involving pure public rights).
95. On fidelity, see Balkin, Original Meaning, 24 Const Comm 291 (cited in note 10); and on the costs of disrupting settled expectations
96. see Posner, 2 J Legal Stud at 401 (cited in note 25)
97. Samaha, Undue Process, 59 Stan L Rev at 614-20 (cited in note 25)
98. Strauss, Constitutional Interpretation, 63 U Chi L Rev 877 (cited in note 12).
99. Posner, 2 J Legal Stud at 401 (cited in note 25)
100. Samaha, Undue Process, 5 9 Stan L Rev at 614-20 (cited in note 25).
101. Balkin, Original Meaning, 24 Const Comm at 305(cited in note 10).
102. See also Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv L Rev 1189, 1282-84 (1986-87)
103. Ronald Dworkin, Taking Rights Seriously 121-23 (Harvard, 1977) (setting out the idea of "enactment force" as opposed to "gravitational force").
104. See Strauss, Constitutional Interpretation, 63 U Chi L Rev at 919 (cited in note 12).
105. Id at 910; Samaha, Undue Process, 59 Stan L Rev at 621-23 (cited in note 25)
106. Richard H. McAdams, Beyond the Prisoner's Dilemma: Coordination, Game Theory, and Law, 82 S Cal L Rev 209, 240-41 (2009).
107. On the idea of error costs in the process of Constitutional decision making by the Court, see, e.g., Cass R. Sunstein, Supreme Court 1995 Term, Foreword: Leaving Things Undecided, 110 Harv L Rev 4 (1996).
108. As Note, 118 Harv L Rev 1665(cited in note 73) suggests, one arguable exception might involve the Twenty Dollars Clause in the Seventh Amendment.
109. Adrian Vermeule, Law and the Limits of Reason 90 (Oxford, 2008).
110. see, e.g., Hathaway, 117 Yale L J at 1261 (cited in note 50). Striking in this context is also the parallel between changes in the requirements for a motion for cloture under Senate Rule 22, and the adjusted supermajority rule set out in figure 1
111. see Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Brookings, 1997).
112. see Robert B. McKay, Reapportionment: Success Story of the Warren Court, 67 Mich L Rev 223, 228 (1968-69).
113. For how political dynamics of this kind can lead to the de facto entrenchment of Constitutional norms or decisions, see Daryl Levinson, Political Commitment, Entrenchment, and Self-Enforcement in Constitutional Law, paper presented to University of Chicago Law School, Law and Politics Workshop, May 13, 2009 (on file with author).
114. On these informal norms, see Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L J 408 (2007).
115. Fett and Ponder, [1993] PS: Pol Sci & Politics 211, 213 (cited in note 60) (showing that recently elected members of the House are far more likely to support congressional term-limit proposals than longer-serving members).
116. Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Harvard, 1965).
117. See Hathaway, 117 Yale L J at 1304-05(cit ed in note 50).
118. Many though not all scholars in this category are originalists: see, e.g., Raoul Berger, Originalist Theories of Constitutional Interpretation, 73 Cornell L Rev 350 (1987-88)
119. Antonin Scalia, A Matter of Interpretation (Princeton, 1997).
120. Irish Constitution, Arts 1, 5, 29.
121. See, e.g., Crotty vAn Taioseach [1987] IR 713 (Walsh, Henchy, Hederman, JJ) (holding that in unamended form Articles 1, 5, and 29 absolutely prevented Ireland from ratifying the Single European Act 1986).
122. Constitution of India 1949.
123. Because governments in India are often minority or coalition governments, there is an inherent tendency for government instability. By creating broad scope for opposition parties to use cabinet posts as a means of promoting defection by members of the governing party, the original Constitution also greatly increased this potential for instability. See The National Commission to Review the Working of the Constitution, Final Report, par 4.19 (2002).
124. See discussion in T. V. R. Shenoy, There Is No Substitute for Vigilance, Rediff India Abroad ( July 9, 2004) (discussing limits to the Anti-Defection Act 1985).
125. Indian Constitution 1969, 91st Amendment.
126. For discussion see Mohan uruswamy, 91st Constitutional Amendment: Not Quite Adequate, Hindu Business Line (July 20, 2004).
127. See, e.g., John R. Vile, Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789-2002 (ABC-CLIO, 2003).
128. Lutz, Toward a Theory of Constitutional Amendment 237 (cited in note 4)
129. Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (Cambridge, 2009).
130. This makes amendment of Article 1, Section 3, Clause 1, within the confines of the Constitution, close to, if not actually, impossible. One possibility, canvassed by Lynn Baker and Samuel Dinkin (see 13 J L & Pol 21, cited in note 29), is that Article V could be amended in order to remove this requirement of unanimous consent, but such an argument encounters severe difficulties in how it treats the relationship between the general and specific requirements of a particular constitutional clause
131. see Sanford Levinson, The Political Implications of Amending Clauses, 13 Const Comm 107 (1996).
132. Baker and Dinkin, 13 J L & Pol at 71 (cited in note 29).
133. Edward S. Corwin, The President: Office and Powers: History and Analysis of Practice and Opinion 232-40 (NYU, 1940). The events of 1945support this interpretation
134. see Ackerman and Golove, 108 Harv L Rev at 889-90 (cited in note 50).
135. Bruce Ackerman, We the People, vol 1, Foundations (Belknap, 1993).
136. On the relative stability of a 50 percent majority rule, see Dixon and Holden, Designing Constitutional Amendment Rules (cited in note 43).
137. See, e.g., David R. Dow, The Plain Meaning of Article V, in Sanford Levinson, ed, Responding to Imperfection: The Theory and Practice of Constitutional Amendment 117 (Princeton, 1995).
138. See also Tribe, 108 Harv L Rev at 1286-88 (cited in note 64).
139. For criticisms of Ackerman's theory as underinclusive in this context, see, e.g., Michael W. McConnell, The Forgotten Constitutional Moment, 11 Const Comm 115(1994).
140. See, e.g., Bruce Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L J 1013 (1983-84).
141. See Akhil Amar, Consent of the Governed: Constitutional Amendment Outside Article V,94 Colum L Rev 457 (1994).
142. For other criticisms of Amar's proposal, see Henry P. Monaghan, Our Perfect Constitution, 56 NYU L Rev 353 (1981).
143. For criticism by Constitutional conservatives of decisions such as Clinton vNew York and Thornton
144. see, e.g., Steven G. Calabresi and Christopher S. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (Yale, 2008).