Academic journal article William and Mary Law Review

The Fiscal Powers and the 1930s: Entrenchment

Academic journal article William and Mary Law Review

The Fiscal Powers and the 1930s: Entrenchment

Article excerpt

Most constitutional theory is normative and looks to the past. Theorists usually adopt the viewpoint of a contemporary actor, typically a judge on a court with final decisional authority, and ask about the relevance of past events to the judge's decision.(1) For example, in one standard form of the argument over originalism, the question is whether the judge today should treat as conclusive an application of the constitutional text that generally was accepted at the time of adoption.(2) Deeper questions arise when one looks beyond the context of judicial decision, abandons the standard suppositions concerning judicial authority, and asks why people today should care about events that took place long before any of us were born.

Although expressions of opinion on the foregoing issues are in no danger of running out, there is a surprising shortage of thinking about how constitutions work, rather than how they ought to work. Theory that discusses what makes some constitutional arrangements effective and others ineffective is relatively scarce. This Essay uses as its test instrument a forward-looking perspective that considers not how we are bound by the past, but rather how we may bind the future. An attempt to answer that question should provide some insight into the actual operations of constitutions in general and the American constitutional system in particular. In order not to stray too far from the topic of this symposium, I will bring this perspective to bear on the most important change in the practice of American government that took place during the 1930s: the dramatic expansion of federal spending. That thunder still reverberates through our constitutional politics.(3)

To some extent, any change in legal rules binds the future in any system where the rules are followed as such and formally changing them is costly. Constitutional rules are often said to be entrenched, however, in the sense that it is more difficult to change them than to alter ordinary laws, because the process of constitutional amendment is more difficult than the process of statutory change.(4) The options available to would-be constitution-makers thus depend on the available mechanisms of entrenchment.

One aspect of this question occupies much of Bruce Ackerman's second volume of We the People.(5) Ackerman provides a detailed account of the Roosevelt Administration's decision to support the Court-packing plan rather than an Article V amendment, and discusses the eventual use of transformative Supreme Court appointments instead of an amendment.(6) Ackerman is much concerned with the fact that although both court-packing and nonpacking transformative appointments are instruments of constitutional change, it is not so clear that they are instruments of constitutional entrenchment.(7) For example, suppose that Reagan and Bush had created a majority of Justices who believed that Wickard v. Filburn(8) and United States v. Darby(9) and maybe even NLRB v. Jones & Laughlin Steel Corp.(10) were decided wrongly under the Constitution as it stood in 1933. Would this majority have been required to overrule those cases on the grounds that no subsequent amendment vindicated expanded federal regulatory power? Ackerman says no because he believes that something more than a shift in judicial personnel took place under Roosevelt, but he confesses that the case is harder to make than it would be had the more familiar technique of Article V entrenchment been employed.(11)

Although Ackerman is worried about the entrenching effects of the constitutional changes that took place during the Roosevelt Administration, especially as compared to the effects of changes that were considered but not adopted, the New Dealers do not seem to have been so concerned.(12) Their immediate problem involved freeing themselves from the chains of the past, and they seem to have given little thought to imposing chains on the future.(13) Maybe they would have been against doing so, believing with Thomas Jefferson that the earth belongs to the living and that each generation should be able to make its own destiny. …

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