Tuesday, April 05, 2011

More Constitutional Liability Rules

Gerard N. Magliocca

(Cross-posted at Concurring Opinions)

Last week I did a series of posts about "constitutional liability rules." The upshot is that sometimes the best way to design relationships between or among institutions is to allow one of them to exercise a right but face a penalty if it does. This can be, though is not always, better than allowing one body to issue a direct command that another must obey. That may be because it is easier to get political agreement on a liability rule, because a liability rule is more protective of institutional rights than a command but facilitates action more than a property rule (giving an institution an unfettered choice), or because an organ possesses some kind of veto that cannot be overridden by a command without massive costs. Here are some examples from my prior posts:

1. The Spending Clause and the "anti-commandeering/sovereign immunity" cases (Congress cannot order the states or state officials to do certain things, but they can impose costs on them if they do not.)

2. Section Two of the Fourteenth Amendment (A state could discriminate on the basis of race in voting, but if it did its representation in the Electoral College and the House of Representatives would be reduced).

3. Lords-packing in 1832 and 1911 (The House of Lords could reject crucial legislation, but if it did so its voting power would be diluted.) See also Court-packing in 1937.

4. Congress's threat to impose an economic embargo on Rhode Island in 1790 because it refused to ratify the Constitution (Rhode Island could continue to hold out, but would pay a cost).

5. The ratification of the Fourteenth Amendment in the South (A state could reject the Amendment, but if it did then it would remain under military occupation). See also the Treaty of New Echota, basically presenting the same choice to the Cherokee Nation if it refused to accept removal to the West.

Now I want to explore two more examples--the Direct Tax Clause and the Equal Protection Clause.

The Direct Tax Clause is an example of a constitutional liability rule that is in the text. The purpose of the Clause was to prevent the taxation of slaves by Congress (though it covers more than that). Now the Framers could have just prohibited such a tax, but they did not. Instead, they established a rule that made states without slaves pay if a tax was imposed on slaves by providing that the revenue collected had to be apportioned among states according to their respective populations.

The more intriguing example is the Equal Protection Clause. You can find language from the Court (most notably from Robert H. Jackson and Antonin Scalia) explaining that the requirement that laws be of general application makes it less likely than unpopular or pernicious policies will be enacted. In other words, there are instances in which we will allow Congress (or state legislatures) to pass certain statutes but we make that more costly from a political standpoint through a constitutional rule of equality.

That leads to this question: Can we derive an interpretive principle from that idea? Suppose we said that courts should invalidate a statute on equal protection grounds when they thought that such a law passed only because it was not applied generally. This obviously does not cover all of the situations in which the EPC applies ("separate-but-equal" covers everyone, but that doesn't make it lawful), but it is worth considering further.

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