Balkinization: Constitutional Liability Rules -- Part III

Constitutional Liability Rules -- Part III

Gerard N. Magliocca

This post focuses on why constitutional liability rules are a useful tool for legitimating broad constitutional change. The key point is that giving dissenting institutions a choice (even if it is a constrained choice) produces consent. And consent always beats a command when it comes to creating an outcome that receives respect. At the same time, allowing the dissenting organ to have an unconstrained choice may be impossible because it actually delegitimizes the reform at issue.

The first example is the way Congress dealt with Rhode Island's refusal to ratify the Constitution until 1790. Why did Rhode Island say no? In part, it was because they held that the Constitution was illegal because the Articles of Confederation required all 13 states to ratify an amendment. Allowing Rhode Island to remain outside the Union was unacceptable in part because its very existence undermined the authority of the Constitution much as a legitimate claimant to a throne poses a threat to a King. What did Congress do? They did not just annex Rhode Island, even though that would have been pretty easy. Instead they proposed an economic blockade of that "foreign country." Rhode Island responded by ratifying. Problem solved.

Another example is the ratification of the Fourteenth Amendment. Some in Congress said that the Amendment could be imposed on the South because those states had committed suicide via secession. A ratification based only on Northern States, though, would have left a cloud over the Amendment's validity. Giving the South a free choice, however, would have nullified the result of the War. Instead, Congress held that states that refused to ratify would remain outside of the Union under military occupation. Ratification occurred. (Arguably the same thing happened when the Cherokee Nation was strong-armed into agreeing to the Treaty of New Echota, which authorized its removal along the "Trail of Tears" in the 1830s, but that is a more complicated story.)

When it came to the Voting Rights Act, though, Congress did not give the "pre-clearance" jurisdictions in the South a choice about whether they should comply with the new rules protecting African-American suffrage. Perhaps that was because of the long history of resistance under JIm Crow, but this shows that a constitutional liability rule is not always the remedy of choice.

Tomorrow I'll wrap up this series by talking about how a constitutional liability rule could improve the Article Five process.

Posted 4:27 PM by Gerard N. Magliocca [link]