As promised yesterday, here is a further thought on my latest FindLaw column. In the column, I argue that issues of constitutional law are never fully settled, because they are always open to the possibility of re-examination. If I'm right, that creates a problem, because one of the basic purposes of law is what is sometimes called "the settlement function," i.e., the law's ability to resolve questions so that everyone knows the answer and energy is not wasted fighting over the law's meaning. Settled law permits people to rely on the law, and thus to make investments based on relatively certain expectations. People who think the settlement function of law very important relative to other functions of law (such as substantive justice) tend also to have a commitment to rules rather than standards and, typically, to static interpretive approaches (such as originalism) rather than dynamic ones (such as living Constitutionalism). Constitutions themselves, insofar as they establish bedrock structural features and fundamental rights, are thought to be especially important for settlement.
But the possibility that settled interpretations of the Constitution can be upended means that in many areas one can never fully rely on the Constitution itself to provide a lasting settlement--and that's true even if some long-lasting settlement is not ultimately upended. Like the sword of Damocles, the possibility of upsetting a settlement prevents (some measure of) reliance so long as it remains a live possibility, even if never realized.
This is obviously a serious problem in countries in which the Constitution itself is liable to be upset at any time, which is to say, in most countries at most times. As Tom Ginsburg et al report in a recent paper, the average lifespan of a national constitution is 17 years. Constitutions, it seems, are like restaurants: Most new ones fail.
Ah, you say, but not the U.S. Constitution, which is chugging along nicely in its third century. But there's a catch, you see: Ginsburg et al find that long-lived constitutions are typically flexible, either because they are easy to amend (which the U.S. Constitution is not) or because they are interpreted flexibly over time (which the U.S. Constitution has been). It seems that constitutions simply cannot play the settlement function that some theorists imagine they play: Either a constitution will be flexible, and thus leave many matters unsettled or subject to unsettling; or it will be inflexible, and thus die young, giving way to a whole new constitution and thereby unsettling the legal order that way.
This "flexibility" reminds me of the Daoist metaphor of the "soft way:" plants full of life are flexible and tender, whereas dead branches are "hard" and "strong." Or...the hardest tree is the one ready for the axe.
Secondly, it brings to mind Russell Hardin's argument that we view our Constitution as a coordinating device (or convention) rather than on the model of a contract, the latter sort (literally, in Constitutions with contracts at their core, and figuratively) closer in design to performing this "settlement function" and are, according to Hardin, in fact "typically unstable." A "settlement function" is contingent upon a degree of agreement a constitution as a coordinating device does not require (i.e., neither universal nor even widespread). Furthermore, as Hardin says, " a constitution is clearly like a convention in the strategic sense: It may not give you the best of all results, but it gives you the best you can expect GIVEN THAT ALMOST EVERYONE ELSE IS FOLLOWING IT. Can one imagine in a like fashion a contract that bound those who had in no sense agreed to it? [....] Moreover, [what the constitution] commits us to is open evolution and change in a far more exansive way than is the expectation of action under a contract." (For Hardin's sociological account please see his Liberalism, Constitutionalism, and Democracy, 1999).
Finally, the constitution viewed as performing a "settlement function" seems to be wedded to the image of the constitution primarily as a "constraining" rather than "enabling" device or relatedly, in the manner of "regulative" rules rather than "constitutive" rules" (here the comparative 'rigidity' of the the latter allow for flexibility over time, as in the constitutive rules of grammar). (I'm relying here on the work of Stephen Holmes).
I think there is an evolution component at play in our system, whereby even though nothing is ever permanently settled, changes in constitutional interpretation often come gradually, so society can successfully adjust. Obviously, there are examples where this isn't true -- like when Brown directly overturned separate but equal as the 14th amendment standard.
But for instance, if abortion rights ever go away, it will likely be the outcome of a long-term effort to chip away at them, I think. Then again, one more conservative justice might lead to an immediate and drastic shift. So even as a type this, I'm not so sure of my premise after all :).
Prof, what's your take on that dynamic?
I agree with Patrick's elegant statement, both with respect to constitutions and law more generally: Last semester we had a very interesting presentation by Kaushik Basu (then our colleague across the university, now the chief economic advisor to the govt of India) making the case for understanding law as generally serving the coordination rather than the settlement function.
In response to Eric's question, I tend to think that things are quite unpredictable over the long run. That is, periods of stability with only evolutionary change can be disrupted by shocks during which there is rapid change. That's my view about the physical and social world generally, and so about law too. It's not that chaos theory is the best description of everyday life, but a longterm account of anything that does not include a place for chaos theory is likely to be inaccurate.
Don't Shapiro and Coleman interpret Hart's secondary rules in exactly this fashion, as the evidence of (if not the means of) coordination across officialdom? And I thought you (Mike) took something of an exception to that account in your chapter in Adler's (very fine) edited collection. Or did I misread someone?
1) That's a fair characterization of Coleman and Shapiro with a caveat. Shapiro (and Coleman under his influence) refers to law as a "shared cooperative activity"--a concept traceable to Michael Bratman. Now, as Bratman uses the term, a SCA can be quite loosely coordinated in the way that Patrick and Kaushik have in mind. I believe Coleman uses the term that way too. But Shapiro's notion of SCA is, to my mind, closer to "settlement" than law actually accomplishes.
2) So that's a way of saying that yes, I do take issue (a bit) with Shapiro's idea of SCA, but only because it's too hard/rule-like to accurately characterize how law typically works.
3) However, I don't recall making that point in my chapter in the Adler book. There my main point was that the written Constitution crowds out--i.e., obscures the role of--the extra-constitutional rule of recognition. I suppose I could be said to be arguing in my chapter that the Constitution itself is not actually settling all that much; the RoR is doing a lot of the work; and a lot of that work is at best loose coordination. That was not my main point but I see that possible reading.
What I find funny about the nullification issue -- where the States claim that individual mandates are unconstitutional -- the States don't have a problem with requiring auto insurance.