Student Blogger - Summer WIP: Rosalind Dixon Defends Dynamic Constitutional Rules
Woody Allen once explained why he didn't eat oysters by saying "I like my food dead. Not sick. Not wounded. Dead." Many people like their constitutional clauses the same way. But even those constitutional theorists who endorse a dynamic interpretation of the constitution seem to restrict it to constitutional standards, while excepting constitutional rules. So something like the Eighth Amendment's cruel and unusual punishment provision is a viable candidate to be updated, while the Seventh Amendment's rule that jury trials must be preserved where the amount in controversy is greater than $20 is not.
Professor Dixon challenges this view in her ongoing project, "Dynamic Constitutional Rules." Dixon beings by addressing three primary arguments forwarded for why constitutional rules should be exempt from updating: first, that compared to standards their importance is measured more by their providing clarity than their substantive content; second, that the costs of unsettling them are systematically higher than doing so to constitutional standards; and third, that there has been less "drift" in the scope of constitutional rules compared to standards. None of these arguments, she claims, holds water as a general matter even applied to the clearest constitutional rules. Many constitutional rules have extremely important welfare and/or distributional consequences -- they are not just coordination games. The rule regarding Senate representation, for example, has very real and noticeable effects on the distribution of federal government resources to large versus small states. Constitutional rules also can and have seen a disjuncture develop between their original purpose and their facial textual demands. Any intent for the Seventh Amendment's $20 clause to conserve judicial resources clearly is impotent in the face of the text today. Finally, the costs of upsetting a constitutional rule does not necessarily have to be higher than changing standards, particularly given the opportunities for indirect updating techniques.
These indirect updating processes form the crux of Professor Dixon's argument. Returning to the $20 provision of the 7th amendment as providing some rationing of judicial resources, it is clearly inadequate to serving that purpose today. But courts can still interpret parallel constitutional provisions to fill in this text-purpose gap. This was potentially part of the function of Colgrove v. Battin, which affirmed the validity of six-member juries under the 7th amendment, which also works to conserve judicial resources.
Alternatively, courts could accord significantly more deference to legislative efforts to "off-set" constitutional gaps in one context by legislating in another. The Congressional enactment of "congressional executive agreements" (which require only simple majorities of each house to ratify) as an alternative to standard treaty-negotiation could be an example here: as the Senate's increase in size made the "formal" treaty-ratification rules of the constitution more onerous than was originally intended, CEAs offered a way to engage in similar behavior, in a form more closely approximating the original goals of the treaty clause. This sort of behavior would normally be vulnerable to exclusio unius arguments (which has derailed other candidates for legislative constitutional updating, such as term-limit laws), making it all the more important that the court adopt a deferential posture to such legislative actions for them to work.
Both of these forms have advantages and disadvantages, of course, which mirror each other. Judicial updating may skip past legislative blindspots which could hamper updating (a problem particularly in areas which touch on matters of Congressional power). But judicial updating also vests large amounts of power in the hands of a very select group of individuals, which may trigger democratic alarm bells, as well as potentially diminishing the acculturation of internalized norms of judicial modesty. But these objections are hardly unique to dynamic intervention towards constitutional rules. And the point isn't to advocate for a judicial or legislative free-for-all against the text of the constitution. It's to demonstrate that a flat split through which constitutional standards can be updated but constitutional rules are immune is at best weakly grounded in logic and actual American legal practice.