Thursday, February 25, 2010

Constitutions and Restaurants

By Mike Dorf

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.