The atrophy of constitutional powers

Oxford Journal of Legal Studies

Volumn 32, Issue 3, 2012, Pages 421-444

  Vermeule, Adrian ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

Constitutional law; Constitutional theory; Parliamentary sovereignty

Indexed keywords

EID: 84865836497     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqs010     Document Type: Article

References (93)

1. For references to the aggrandizement literature and a critique, see DJ Levinson, 'Empire-Building Government' (2005) 118 Harv L Rev 915
2. The antonym of aggrandizement is sometimes taken to be abdication. See eg RH Pildes, 'Political Avoidance, Constitutional Theory, and the VRA' (2007) 117 Yale LJ Pocket Part 148
3. Yet abdication is not the same as atrophy. Congress is often said to have abdicated a great deal of power to the President by massive delegations, but the point is not that the power of delegation has atrophied; on the contrary, for those who worry about congressional abdication, the point is that the power of delegation is exercised all too frequently.
4. M Shapiro and A Stone Sweet, On Law, Politics, and Judicialization (OUP 2002
5. R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2004).
6. M Tushnet, 'The Hartman Hotz Lecture: Dialogic Judicial Review' (2008) 61 Arkansas L Rev 205.
7. This thesis shares the general premise that judicial supremacy is itself the product of democratic politics
8. KE Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton University Press 2007
9. Hirschl (n 2)
10. F Davis, 'The Human Rights Act and Juridification: Saving Democracy from Law' (2010) 30 Politics 91
11. However, that claim is typically cashed out to mean that non-judicial political actors intentionally promote judicial power for strategic reasons-either because a current political coalition benefits from judicial power or because a past coalition entrenched its partisans in the courts to protect itself in the future, or because non-judicial officials benefit by shifting controversial questions to the courts and thus avoiding blame from losing parties
12. In the mechanisms I will offer, in contrast, judicial supremacy arises as an unintended consequence of the behaviour of other political actors.
13. W Bagehot, The English Constitution and Other Political Essays (Appleton 1884) 125.
14. V Bogdanor, The Monarchy and the Constitution (OUP 1995) 12.
15. A Tomkins, Public Law (OUP 2003) 64
16. For a somewhat different account, also compatible with my claims here, see I Mclean, What's Wrong with the British Constitution? (OUP 2009) 100-25.
17. The disallowance power also applies to federal acts, but I will focus on the provincial case.
18. RC Vipond, 'Alternative Pasts: Legal Liberalism and the Demise of the Disallowance Power' (1990) 39 U N Brunswick LJ 126-147.
19. A Heard, Canadian Constitution Conventions: The Marriage of Law and Politics (OUP 1991) 101-05.
20. J Bryce, The American Commonwealth (Liberty Fund 1995) 244-45.
21. MJ Gerhardt, The Federal Appointments Process: A Constitutional and Historical Analysis (1st edn, Duke University Press 2000) 154-55.
22. J Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (CUP 2000) 98.
23. Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act 1982.
24. See AM Dodek, 'A Tale of Two Maps: The Limits of Universalism in Comparative Judicial Review' (2009) 47 Osgoode Hall LJ 287-304
25. Stating that the notwithstanding clause has 'become politically illegitimate in practice'.
26. T Kahana, 'The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter' (2001) 44 Can Pub Admin 255-258.
27. A commonly cited example of an atrophied power is the power of Congress to regulate the jurisdiction of both the lower federal courts and the Supreme Court. See, eg, JG Wilson, 'American Constitutional Conventions: The Judicially Unenforceable Rules That Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior' 40 Buffalo L Rev 645, suggesting tentatively that there is a convention against making exceptions to judicial jurisdiction; J Elster, Unwritten Constitutional Norms (2010) 21 (unpublished manuscript, on file with the author). However, the issue is quite complicated. There are many extant statutes that make exceptions to the general jurisdiction of the lower federal courts. See, eg Norris-LaGuardia Act, 29(1992)
28. 101ff (2010), prohibiting suits for federal injunction against yellow-dog contracts; Tax Anti-Injunction Act, 26 USC s 7421(a) (2010), prohibiting suits for federal injunction against state tax collection. In several important cases, moreover, Congress has enacted statutes that curtail or 'strip' the jurisdiction of the 18 G Mackie, 'Ending Footbinding and Infibulation: A Convention Account' (1999) 61 Am Sociol Rev 999.
29. The problem is that the Court then interprets those statutes narrowly, sometimes to the point of mendacity. See eg Ex Parte McCardle 74 US 506 (1869)
30. Felker v Turpin 518 US 651 (1996)
31. INS v St Cyr 533 US 289. It is not so much that the power of jurisdiction-stripping has atrophied, as that there is a convention, supported by legal elites, that the Court may with a straight face interpret jurisdiction-stripping statutes to mean far less than they plainly say.2001
32. J Henrich and others, 'Group Report: What is the Role of Culture in Bounded Rationality?' in G Gigerenzer and R Selten (eds), Bounded Rationality: The Adaptive Toolbox (MIT Press Thanks to CR Sunstein, Laws of Fear: Beyond the Precautionary Principle (CUP 2005) 96 for this reference.2001) 353-54.
33. In September 2010, the federal government disavowed any intention to use the notwithstanding power to override Charter rights for illegal migrants, because of fears of a 'strong backlash'. See H Scoffield, 'Ottawa rules out invoking Notwithstanding Clause to stop Migrant Ships' (Canadian Press, 13 September 2010) accessed 1 May 2012.www .breitbart.com/article.php?id=cp_i6lvd56ut33show_article=1
34. See generally Kahana (n 16)
35. K Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Irwin Law) 204. Supreme Court itself.2001
36. Heard (n 10) 147.
37. Some evidence is the election pledge by the liberal leader, Paul Martin, to amend the Charter to eliminate the notwithstanding power, but only at the federal level.2006
38. Kahana (n 16) 256.
39. As recounted by Kahana (n 16) 266.
40. A saying conventionally attributed to the Danish chess grandmaster Aron Nimzowitsch. See E Winter, 'A Nimzowitsch Story' accessed 7 May 2012.www.chesshistory.com/winter/extra/nimzowitsch.html
41. As Nick Barber helpfully pointed out to me, this holds only if the credible threat is latent rather than overt. If the threat is publicly observable, the mechanism discussed in text will not operate, unless the threat is exposed as a non-credible bluff or cheap talk. Paradoxically, then, the more powerful and credible the threat, the less overt the threat need be, and the greater the risk of eventual atrophy.
42. I use myopia in its informal sense in which we can say, of a person, that she is myopic if her discount rate strikes us as excessively high, given our assessment of her long-term interests. This sense is not out-and-out normative; it is prescriptive or conditionally normative, 'given what I take to be her interests, she should think more about the future'. There is also a more technical sense of myopia, involving a hyperbolic rather than exponential form of time-discounting that induces preference reversals. See, eg KN Kirby and RJ Herrnstein, 'Preference Reversals Due to Myopic Discounting of Delayed Reward' (1995) 6 Psychol Sci 83.
43. cf Levinson (n 1).
44. I use the term colloquially. Technically, the House impeaches and prosecutes the impeachment, whereas the Senate decides whether or convict. 33 TJ Lau, 'Judicial Independence: A Call for Reform' (2008) 9 Nevada LJ 79, 86. 34 D Carpenter, 'Dealing with Gonzales' (Volokh Conspiracy, 3 May 2007 http://volokh.com/posts/ 1178211215.shtml
45. If we like, we can describe these trends, broadly speaking, as the growth of a normative commitment to representative democracy among elites and the populace. This is consistent with the hypothesis I offer, because the growth of such a commitment helps to explain the increasing political costs of exercising the veto, which in turn encouraged the monarchy to use lower-cost substitute instruments. That said, describing UK constitutional history in such terms runs the risk of post hoc characterization; representative democracy may be, at least in part, the product rather than the cause of the events to be explained. If the monarchy had fought harder to retain the veto power and had succeeded, then the commitment to representative democracy would have been qualified to that extent. Thus, the crucial explanatory issue is why the monarchy was unable or unwilling to do so-the issue discussed in the text.
46. For an analysis of royal vote-buying as a divide-and-conquer tactic, see EA Posner, K Spier and A Vermeule, 'Divide and Conquer' (2010) 2 J Legal Analysis 417.
47. See D Hume, 'Of the Independency of Parliament' in D Hume, Essays: Moral, Political, and Literary (EF Miller ed, Liberty Classics 1985) 44-45.
48. TB Macaulay, The History of England from the Accession of James II vol 5 (Elibron Classics Reprint 2006
49. The main accounts are WE Leuchtenburg, The Supreme Court Reborn: the Constitutional Revolution in the Age of Roosevelt (OUP 1996
50. J Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (WW Norton 2010
51. See Shesol (n 39) 342-43
52. A Brinkley, 'With Justices for All' New York Times (New York, 25 March 2010
53. Vipond (n 9) 147.
54. KQ Seelye, 'A Nation Challenged: The Military Tribunals; In Letter, 300 Law Professors Oppose Tribunal Plans' New York Times (New York, 8 December 2001www.nytimes.com/2001/12/08/us/nation-challengedmilitary- tribunals-letter-300-law-professors-oppose-tribunals.html
55. SL Popkin, The Reasoning Voter: Communication and Persuasion in Political Campaigns (University of Chicago Press 1991) 9-17.
56. G Jellinek, Allgemeine Staatslehre (Springer 1929) 338.
57. E Volokh, 'The Mechanisms of the Slippery Slope' (2003) 116 Harv L Rev 1026-1078
58. Citing MR Cohen, 'The Basis of Contract' (1933) 46 Harv L Rev 553-592.
59. Volokh (n 45) 1079.
60. Elster (n 17) 31, citing an unpublished manuscript by R Hardin.
61. Volokh (n 45) 1088-90.
62. As Nick Barber and Timothy Endicott helpfully emphasized to me.
63. Leuchtenburg (n 39) 139.
64. 317 US 1 (1942).
65. 'Letter from Law Professors and Lawyers to Senator Patrick J. Leahy' (5 December 2001) accessed 9 May 2012. For a list of signatories, see 147 Cong Rec S26, 257-60 (daily ed 14 December 2001), letter included in Record by Senator Leahy. 53 See, eg RA Serrano, R Vartabedian and SH Verhovek, 'Outrage, Questions Persist on Firing of U.S. Attorneys' Seattle Times (Seattle, 12 March 2007) http://seattletimes.nwsource.com/html/nationworld/ 2003613762_attorneys12.html
66. S Lilly 'Attorney Scandal without Precedent: CRS Report reveals Audacity of Dismissals' (Center for American Progress, 20 March 2007www.americanprogress .org/issues/2007/03/crs_report.html54
67. B Montopoli, 'So is this U.S. Attorney Purge Unprecedented or Not?' (Public Eye: CBS News, 14 March 2007www.cbsnews.com/8301-500486_162-2571144-500486.html
68. P Slovic, The Perception of Risk (Earthscan Publications 2000) 40.
69. E Hobsbawm and T Ranger The Invention of Tradition (CUP 1992).
70. Elster (n 17) 32.
71. US Constitution art I, s 8, cl 11.
72. See T Richard, 'Reconsidering the Letter of Marque: Utilizing Private Security Providers against Piracy' (2010) 39 Pub Cont LJ 411.
73. Thanks to Mark Tushnet for this example.
74. WE Hearn, The Government of England (Longmans 1867) 61.
75. CP Manfredi, Judicial Power and the Charter (McClelland and Stewart 2001) 187.
76. Bryce (n 11) 350.
77. Sir David Smith, The Head of State (Macleay Press 2005).
78. Elster (n 17) 30.
79. EA Posner and A Vermeule, 'Constitutional Showdowns' (2008) 156 U Pa L Rev 991.
80. In welfare economics, this problem is known as the 'determinacy paradox': one cannot assume that actors are self-interested or boundedly rational for purposes of identifying a problem, and then turn around and assume that the very same actors are public-spirited or far-sighted for purposes of proposing a solution. For discussion and references, see A Vermeule, 'Self-Defeating Proposals: Ackerman on Emergency Powers' (2006) 75 Fordham L Rev 631.
81. Levinson (n 1).
82. J Elster, 'The Role of Institutional Interest in East European Constitution-Making' (1996) 5 E Eur Const Rev 63.
83. JJ Entin, 'The Removal Power and the Federal Deficit: Form, Substance, and Administrative Independence' (1987) 75 Kentucky LJ 699, 731-32.
84. Myers v United States 272 US 52 (1926).
85. AC Hinds, Hinds' Precedents (1907) vol 3, www.gpoaccess.gov/precedents/hinds/vol3.html 2012
86. A Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 281
87. For a dialogic conception of the Human Rights Act that preserves its compatibility with parliamentary sovereignty, see AL Young, Parliamentary Sovereignty and the Human Rights Act (Hart Publishing 2009
88. See Kavanagh (n 75) 285
89. T Endicott, Administrative Law (2nd edn, OUP 2011) 76.
90. UK Ministry of Justice, 'Responding to Human Rights Judgments: Government Response to the Joint Committee on Human Rights Fifteenth Report of Session 2009-10' (Cm 7892,) 5. Thanks to Fergal Davis for providing this reference.2010
91. Kavanagh (n 75) 289. Although Kavanagh suggests that 'a new constitutional convention surrounding declarations of incompatibility may well be developing,' she also cautions that it is too soon to be sure. In a personal communication, she has helpfully pointed out that recent political developments surrounding the issue of prisoner voting suggest growing restiveness in Parliament about human rights compliance. Timothy Endicott says that there is a 'developing political expectation' of Parliamentary compliance with declarations of incompatibility, one that is 'very strong' but he also suggests that it does not (yet) rise to the level of a convention; see Endicott (n 76) 76.
92. Lord Hoffman, 'The COMBAR Lecture 2001: Separation of Powers' (2002) 137-138
93. In the case of construction of the Human Rights Act [.. .] [it] is bound to be extremely difficult for a government to secure the passage of legislation which the courts have said would be in conflict with human rights