Tuesday, March 29, 2011

Constitutional Liability Rules -- Part II

Gerard N. Magliocca

This is the second of what I now see will be three posts about this idea that I'm working on. While there are liability rules in the Constitution that apply to individuals (for example, the Takings Clause), I am interested in structural liability rules that are used to support fundamental values or manage a substantial legal transition.

The Spending Clause is the best contemporary example. Congress is barred from abrogating state sovereign immunity or from commandeering state legislatures and executive officials, but those same goals can be accomplished by withholding federal funds from the states if they refuse to acquiesce. And the Supreme Court has refused (since the New Deal) to assess how coercive that liability rule might be and whether that pressure can ever go too far. The construction of a liability rule regime in this context protects federalism by allowing states to decide whether they wish to raise their own taxes or cut spending to make up any lost federal revenue and maintain their policy stance.

Now consider a different case from the Anglo-American tradition--the threat by the Crown and the Prime Minister to pack the House of Lords. In 1832 (the Great Reform Act on suffrage) and 1911 (the Parliament Act ending the absolute veto of the Lords) there was a consensus that the British polity needed fundamental reform, but in both cases the unelected Lords refused to pass the legislation. The other institutions did not summon Oliver Cromwell to abolish the Upper House or just back down. Instead, they allowed the Lords to retain their right to say no but provided for a dilution of their authority if they did so. This is really no different from how Section 2 of the Fourteenth Amendment, which I described yesterday, operated. Franklin Roosevelt's Court-packing could be seen in a similar light, though that's a more complicated story.

Tomorrow I will focus on the legitimacy justification for constitutional liability rules and examine what constraints exist on their use given that the courts generally refrain from imposing any.

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