Federal Courts
Legislative Entrenchment: A Reappraisal
111 Yale L.J. 1665 (2002) There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds, it is clear that the Court sees the principle as a constitutional axiom. When cashed out in terms of constitutional doctrine, the principle means that legislatures may not enact entrenching statutes or entrenching rules: statutes or rules that bind the exercise of legislative power, by a subsequent legislature, over the subject matter of the entrenching provision. Judges have applied this rule of constitutional law in various settings, and the academic literature takes the rule as given, universally assuming that legislative entrenchment is constitutionally or normatively objectionable. The goal of the academic literature has been to supply the definitive rationale for the rule, although the theorists' favorite rationales are all different. Our claim is that the rule barring legislative entrenchment should be discarded; legislatures should be allowed to bind their successors, subject to any independent constitutional limits in force. The rule has no deep justification in constitutional text and structure, political norms of representation and deliberation, efficiency, or any other source. There just is no rationale to be found; the academics have been on a fruitless quest. Entrenchment is no more objectionable in terms of constitutional, political, or economic theory than are sunset clauses, conditional legislation and delegation, the creation, modification, and abolition of administrative agencies, or any of the myriad of other policy instruments that legislatures use to shape the legal and institutional environment of future legislation. In Part I, we define our terms, rebut the view that entrenchment is conceptually impossible, and argue that entrenchment is both constitutionally permissible and, in appropriate circumstances, normatively attractive. In Part II, we apply our analysis to a wide range of entrenchment-related problems, including the validity of the Senate cloture rules, the Gramm-Rudman law, legislatively enacted canons of statutory interpretation, statutes that regulate internal congressional procedures, government contracts, treaties, and entrenchment within the executive and judicial branches. Part III is a brief conclusion.
Waging War, Deciding Guilt: Trying the Military Tribunals
111 Yale L.J. 1259 (2002) In this Essay, we argue that President Bush's recent Military Order, which directs his Defense Department to detain any members of an ill-defined class of individuals, potentially indefinitely, and to try them in military tribunals, jeopardizes the separation of powers today and charts a dangerous course for the future. Our Constitution's structure mandates that fundamental choices, in times of war as well as peace, be made not by one person or one branch, but by the three branches of government working together. Approval by Congress is a necessary, but by no means sufficient, precondition before the tribunals can be entertained as constitutional. We also explain why the present circumstances differ decisively from those at issue in the Supreme Court's body of decisions regarding military tribunals during the Civil War and World War II. And we explain why the specter of civilian habeas review will necessitate legislative involvement. Finally, we detail a significant equal protection problem with the Order.
Veil of Ignorance Rules in Constitutional Law
111 Yale L.J. 399 (2001) A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. A veil rule may produce this distributive uncertainty by either of two methods. One method is to place decisionmakers under a constraint of ignorance about their own identities and attributes. John Rawls coined the phrase "veil of ignorance" to describe a hypothetical original position in which principles of justice are chosen under precisely this constraint. But that is a special case of veil rules generally, indeed a radical case. Rawls's thought experiment introduces uncertainty by allowing the decisionmaker to know the distributive consequences of a decision on future citizens--call them A and B--but denying the decisionmaker the knowledge of whether she herself will occupy A's position or B's position. Where veil of ignorance rules appear under historical rather than hypothetical conditions, however, the relevant decisionmakers will usually know their own identities and interests. Veil rules that appear in actual constitutions, then, more often adopt a second method for introducing uncertainty: Although the decisionmaker knows or can guess whether she will occupy A's or B's position, the rule introduces uncertainty about whether A or B will reap the greater gains from the decision. By speaking of veil rules in constitutions, I mean to pose a very different question than the one pursued in the standard discussions of the veil of ignorance. The constitutional choice literature stemming from James Buchanan, Gordon Tullock, and their successors conceives the uncertainty produced by the veil of ignorance as a mechanism for inducing hypothetical constitutional designers to approach the choice of the constitutional rules themselves in an impartial way. Decisionmaking by legislators and other officials within the framework of the constitutional rules, by contrast, falls in the domain of "ordinary politics," where self-interested individuals and factions struggle for advantage. The constitutional designers' self-interest is constrained by uncertainty; that of ordinary decisionmakers is constrained by voting rules (such as supermajority requirements), by substantive constitutional prohibitions on inefficient legislation, and by institutional competition resulting from the separation of powers. I erase that distinction by asking whether and how constitutional rules might subject in-system decisionmakers to the same uncertainty constraint that governs the hypothetical stage of constitutional choice, and for similar reasons. I also touch upon an important special case, the proposal of constitutional amendments, that shares features of both constitutional choice and ordinary politics. I argue that the Federal Constitution itself contains a number of rules that may usefully be analyzed as veil rules. Provisions, structures, and practices as diverse as the Ex Post Facto and Bill of Attainder Clauses, the Emoluments Clause, the Twenty-Seventh Amendment, Article V's procedures for constitutional amendment, the doctrine of precedent, the original mechanism for selecting senators (by vote of the state legislatures), and the rules governing presidential election and succession may all profitably be considered in this light, although not all of these should count as examples of veil rules rightly understood. The legal literature on these and other topics makes casual references to the veil of ignorance, but there has been very little sustained examination of the subject of veil rules as a general strategy for promoting impartial decisions under actual constitutions. My initial aim, then, is to synthesize and critique these localized literatures in order to obtain an overview of a recurring theme in constitutional design. The payoff from this synthesizing work is that it helps supply an answer to two questions: why the Constitution does not contain more veil rules than it actually does, and why it uses veil rules where it does use them, but not elsewhere. It sounds paradoxical to move from an explication of existing veil rules in some settings to an explanation for their conspicuous absence in others, but that question illuminates the tradeoffs inherent in constitutional design. Having appreciated the power of veil rules to dampen self-interest, we might want to know why the veil technique is not ubiquitous in the Constitution. In particular, it is a striking feature of constitutional law that Congress is subject to more constitutional veil rules, of wider scope, than is the President or the judiciary. Why should that be so, given that it would be perfectly possible to apply a range of veil rules to the latter institutions as well? Some of the literature suggests that the skewed distribution of constitutional veil rules is best explained by the presence or absence of alternative institutional features that suppress self-interested decisionmaking. Federal judges, for example, are not restricted by veil rules requiring prospective and general decisionmaking because life tenure and the design of the adjudicative process independently serve to suppress the decisional bias that veil rules are used to check. While this view gives a plausible account of the paucity of veil rules governing judicial action, its logic suggests that the executive branch should be subject to a far more stringent set of veil rules than it actually is. A second type of explanation applies the insight that the price of reducing bias is to reduce decisionmakers' information. In some settings, the information suppressed by a veil rule is so valuable that its loss might be thought to outweigh even large gains in decisionmaker neutrality. This is true and important, and I shall have recourse to it more than once in explaining the detailed scope of particular veil rules. But paradoxically, the insight is too powerful to be really useful. Any distribution of veil rules across the Constitution, even a distribution much different than the one we see, could be explained by supposing that the costs of foregone information are (or are not) excessive in settings where veil rules do not (or do) apply. I emphasize a third and somewhat different explanation, one that points not to the direct effects of veil rules but to their secondary or indirect consequences. The indirect tradeoff, I argue, is not between information and neutrality, but between information and motivation, or (as the Framers would have put it) institutional "energy." Veil rules not only dampen both information and bias; they also suppress decisionmakers' activity. Removing the spur of self-interest threatens to reduce decisionmakers' activity below acceptable levels, to the point where constitutional designers might plausibly prefer to lift the veil and spur more activity, even if the price is that some fraction of that increased activity is self-regarding. If, like the Framers, we systematically fear excessive congressional activity, on the one hand, and fear insufficient presidential (and even judicial) activity, on the other hand, then something roughly like the current skewed distribution of veil rules suggests itself. The enervating effect of veil rules would amount to a qualified good in the legislative setting and a qualified bad in executive and judicial settings. This is an interpretive explanation or justification of the Constitution and its implicit theoretical commitments. I make no normative claims about how a new constitution should be designed from scratch, nor do I attempt historical analysis of the later development of federal political institutions, such as the (relative) growth of presidential power. The plan of the Essay is as follows. Part I defines terms, distinguishes veil rules from the separation of powers and other types of constitutional rules that restrict self-interested decisionmaking, and sets out a few methodological premises. Part II surveys constitutional veil rules by examining "veil tactics": features of constitutional provisions and doctrines that produce veil-like effects. Examples are constitutional requirements that official decisions be prospective and general, such as the Ex Post Facto and Bill of Attainder Clauses, and constitutional rules that increase the durability of decisions or delay their effective date, such as the doctrine of precedent in constitutional cases, the Twenty-Seventh Amendment, and the Emoluments Clause. I also touch on the (infrequent) use of randomization in constitutional law. Part III examines the direct effects of veil rules on decisionmakers' information and their indirect effects on decisionmakers' motivation, emphasizing that the enervating effect of veil rules helps us toward an account, or a rationalization, of the distribution of veil rules across institutions. Part IV is a brief conclusion.
Bush v. Gore and the Boundary Between Law and Politics
110 Yale L.J. 1407 (2001) Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced by politics or partisan considerations. This speech was widely reported in the press. Afterwards the question on many legal scholars' minds was not whether Justice Thomas had in fact made these statements. The question was whether he also told the students that he believed in Santa Claus, the Easter Bunny, and the Tooth Fairy. It is no secret that the Supreme Court's decision in Bush v. Gore has shaken the faith of many legal academics in the Supreme Court and in the system of judicial review. It is worth considering why this should be so. Legal academics rationalize bad judicial decisions all the time; that is part of their job description. Moreover, the fact that a few judges occasionally make mistakes in legal reasoning, even very egregious mistakes, should come as no surprise, nor should it cause one to lose faith in the rule of law, the U.S. Supreme Court, or in the system of judicial review. Likewise, the fact that a few judges occasionally decide cases because they secretly favor one party over another should also come as no surprise; nor should isolated examples of judicial corruption cause one to lose faith in a larger process of legal decisionmaking. The problem with Bush v. Gore, I suspect, was the case was too salient an example of judicial misbehavior for many legal academics to swallow. It was no isolated fender bender in which a local judge helped out the son of a former law partner. Rather, the case decided the outcome of a presidential election and may well have determined who would sit on the Supreme Court and the lower federal courts for decades to come. Moreover, unlike the judge deciding the case of a fender bender in some obscure venue, the Court could not have failed to recognize that all eyes were upon it. That the conservative Justices acted as they did suggested that their partisanship was so thorough and pervasive that it blinded them to their own biases. It seemed as if they had lost all sense of perspective. In addition, Bush v. Gore was troubling because it suggested that the Court was motivated by a particular kind of partisanship, one much more narrow than the promotion of broad political principles through the development of constitutional doctrine. The distinction is between the "high" politics of political principle and the "low" politics of partisan advantage. The same five conservative Justices who formed the majority in Bush v. Gore had been engaged, for over a decade, in a veritable revolution in constitutional doctrines concerning civil rights and federalism. In those decisions, the five conservatives had been promoting a relatively consistent set of ideological positions like colorblindness, respect for state autonomy from federal interference, and protection of state governmental processes from federal supervision. But the decision in Bush v. Gore did not seem to further those values, at least not directly. Rather, the five conservatives seemed to adopt whatever legal arguments would further the election of the Republican candidate, George W. Bush. This is the "low" politics of partisan political advantage. Although few legal academics these days are shocked to learn that Justices' decisions are "political" in the sense that they promote "high politics"--larger political principles and ideological goals--they were quite disturbed by the possibility that Justices would use the power of judicial review in so prominent a case to promote the interests of a particular political party and install its candidates in power. Indeed, the appearance, if not the reality, of this kind of partisanship in Bush v. Gore casts an unsavory light on the constitutional revolution of the last decade. It was widely speculated before and after the election that several of the Justices might retire within the next few years. By intervening in the election, the five conservatives installed a President who would appoint their colleagues and successors and would stock the federal judiciary with like-minded conservatives. Bush v. Gore was troubling because the five conservatives appeared to use the power of judicial review to secure control of another branch of government that would, in turn, help keep their constitutional revolution going. It is one thing to entrench one's constitutional principles through a series of precedents. It is quite another to entrench one's ideological allies by directing the outcome of a presidential election. Because law professors are perhaps as committed to the legitimacy of the courts and the legal system as anyone else, Bush v. Gore will require them to reduce cognitive dissonance in manifold ways. Many of these forms of dissonance reduction have already begun. In this Essay, I discuss five features of the opinion. In Part I, I discuss the constitutional issues in Bush v. Gore and explain why so many people thought the Court's opinion was unpersuasive. In Part II, I consider the Court's institutional role and whether its choice to intervene in the election dispute was justified. Part III discusses the jurisprudential implications of Bush v. Gore--and in particular its relationship to two very well-known theories of jurisprudence, American Legal Realism and Critical Legal Studies. Part IV considers the place of Bush v. Gore in the "legal canon"--how the case will be understood, taught, and remembered. Finally, Part V offers a few suggestions about what the case means for the Court's legitimacy, both in the short term and in the long run. It also argues that, because of important structural features of the American Constitution, party politics provides the best remedy for the Court's actions.