In a post on Concurring Opinions, Gerard Magliocca asks an interesting question about what importance, if any, should attach to the fact that a constitutional provision invoked in a case has never been applied by the courts, or has not been applied in a very long time. It is, arguably, a specific instance of the broader question of how the law ought to deal with unusual situations on which precedent is lacking; as I observed here, in a post prompted, in part, by prof. Magliocca’s musings on the subject of judicial review of unusual statutes, that broader question is not an easy one.
What prompted prof. Magliocca’s recent post is a challenge to President Obama’s healthcare reform invoking the “origination clause” of the Constitution of the United States (Art. I, s. 7, cl. 1, which provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills”), but the question can be asked more broadly, in the Canadian context as well as in the American one. Prof. Magliocca suggests that
legal academics … act too much like a job placement service for unemployed constitutional clauses. (“You have a superb resume Mr. Contracts Clause. Out of of work since 1934? No problem–I’ll make some calls.”) The complete absence of the Origination Clause from modern constitutional thought must mean something other than “The Constitution has been betrayed.”
Prof. Magliocca seems to be suggesting that if courts have not applied a constitutional provision in decades or even centuries, they should not start now. And legal academics should stop urging them to do so. Being in the process of working on a paper that does just that with the freedom of conscience guarantee of the Canadian Charter of Rights and Freedoms, I have a stake in this debate, so feel free to take what follows with a generous helping of NaCl. For what it’s worth, however, I think that prof. Magliocca’s suggestion is unwarranted.
Indeed, some constitutional provisions ― the Charter’s guarantee of freedom of conscience among them ― seem to be caught in a vicious circle of mutually reinforcing neglect by courts and scholars alike. There are no judicial decisions applying them, therefore they attract little academic interest, therefore nobody (whether lawyers or judges) knows what to make of them, therefore there are no judicial decisions applying them. Now it is probably unfair to criticize the practitioners’ reluctance to invoke neglected constitutional provisions as betrayal, because legal practice is essentially conservative, and both advocates and judges always prefer familiar arguments to novel ones. Nor is this necessarily a bad thing, because the limits and potential consequences of relying on old arguments are well understood, whereas reliance on new and under-explored claims might lead to undesirable and difficult to anticipate consequences. Legal academics are in a position to break the vicious circle, because they can make formerly exotic arguments more familiar and work out their implications in advance of actual application. It seems to me that they should be commended rather than chided when they try to do so, and help give full effect to the constitutional text they are explicating in the process.
Another possible reason for the absence of judicial precedent enforcing a constitutional rule is simply that the rule is (almost) never infringed. I don’t know if this may explain the lack of precedent on the origination clause, but I have suggested (in the post linked to above and, at greater length, in a paper called “Towards a Jurisprudence of Constitutional Conventions”, 11 Oxford U Commonwealth LJ 29 (2011)), that it is this that explains the absence of precedent enforcing constitutional conventions ― rather than conventions’ inherent unenforceability, as A.V. Dicey claimed. When a usually-respected rule of constitutional law is infringed, courts should not be any less willing to step in than in cases involving more frequently breached provisions, and I don’t think it is wrong for academics to remind them of this duty.
But why is it that a rule obeyed so regularly that adjudication is, for long periods of time, unnecessary to enforce it, can suddenly be disobeyed, triggering litigation? The reason has to do, at least in part, with a paradox created by entrenched constitutional texts. In a constitutional system consisting entirely of conventions and statutes that can be amended by an ordinary parliamentary majority, the constitutional rules will never long differ from the constitutional ideas prevailing in society or among officials. (Courts might still have to step in to clarify the rules, as the Patriation Reference shows, because conventions can be uncertain, but such cases will probably not be very frequent.) But with an entrenched constitutional text, (a part of) the rules stays fixed while the prevailing constitutional theory changes. Because the claims made by advocates and accepted by courts tend to reflect the constitutional theory of the time, constitutional provisions that do not conform or are simply not relevant to it tend to disappear from judicial decisions. Yet because an entrenched constitutional text ― unlike constitutional conventions ― does not change with the prevailing ideas, these provisions remain available for invocation in legal arguments by those who, for one reason or another, can and choose to reject the prevailing constitution theory. There is no easy way out. Originalists cannot make the evolution of constitutional ideas stop; non-originalists cannot wish away an entrenched constitution. It is important to keep in mind, too, that constitutional ideas can evolve in more than one direction ― not only away from an entrenched provision, but also back towards it. If academics are free to urge the former sort of evolution, there is no reason they could advocate the latter.
I will consider one more possible reason for judicial non-enforcement of a constitutioinal provision. It may be thought that the courts are incapable of applying a rule well enough, or that other branches of government will do it better. Such claims may be advanced as a more “politically correct” cover for a belief that the provision in question really should not be part of the constitution at all (as they might be in the post-New Deal constitutional discourse in the United States with respect to many rules protecting economic rights, such as the Contracts clause prof. Magliocca pokes fun at, or federalism). But they can be made sincerely (as when Jeremy Waldron makes them with respect to constitutional guarantees of individual rights), and they might sometimes be valid. However, their validity is surely fair game for academic contestation. A scholar can also plausibly (if optimistically) argue that although courts made a mess out of a constitutional provision in the past, his or her new theory would allow them to enforce it competently. Again, I don’t see why academics should take prof. Magliocca’s advice.
The point is not, of course, that every constitutional provision must be put to work. It is many of the constitutional ideas and arguments that are (possibly) valid and interesting within a given constitutional system are, for one reason or another, nowhere to be found in the courts. It is for these ideas and arguments that academics can act as a “job placement service.” And if working with and on behalf of ideas isn’t part of a scholar’s job description, I don’t know what is.