Veil of Ignorance Rules in Constitutional Law
Vermeule, Adrian, The Yale Law Journal
A veil of ignorance role (more briefly a "veil role") is a role that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. (1) A veil rule may produce this distributive uncertainty by either of two methods. One method is to place decisionmakers under a constraint of ignorance about their own identities and attributes. John Rawls coined the phrase "veil of ignorance" to describe a hypothetical original position in which principles of justice are chosen under precisely this constraint. (2) But that is a special case of veil roles generally, indeed a radical case. Rawls's thought experiment introduces uncertainty by allowing the decisionmaker to know the distributive consequences of a decision on future citizens--call them A and B--but denying the decisionmaker the knowledge of whether she herself will occupy A's position or B's position. Where veil of ignorance rules appear under historical rather than hypothetical conditions, however, the relevant decisionmakers will usually know
their own identities and interests. Veil roles that appear in actual constitutions, then, more often adopt a second method for introducing uncertainty: Although the decisionmaker knows or can guess whether she will occupy A's or B's position, the role introduces uncertainty about whether A or B will reap the greater gains from the decision. (3)
By speaking of veil rules in constitutions, I mean to pose a very different question than the one pursued in the standard discussions of the veil of ignorance. The constitutional choice literature stemming from James Buchanan, Gordon Tullock, and their successors conceives the uncertainty produced by the veil of ignorance as a mechanism for inducing hypothetical constitutional designers to approach the choice of the constitutional rules themselves in an impartial way. (4) Decisionmaking by legislators and other officials within the framework of the constitutional rules, by contrast, falls in the domain of "ordinary politics," where self-interested individuals and factions struggle for advantage. The constitutional designers' self-interest is constrained by uncertainty; that of ordinary decisionmakers is constrained by voting rules (such as supermajority requirements), by substantive constitutional prohibitions on inefficient legislation, and by institutional competition resulting from the separation of powers. I erase that distinction by asking whether and how constitutional rules might subject in-system decisionmakers to the same uncertainty constraint that governs the hypothetical stage of constitutional choice, and for similar reasons. I also touch upon an important special case, the proposal of constitutional amendments, that shares features of both constitutional choice and ordinary politics.
I argue that the Federal Constitution itself contains a number of rules that may usefully be analyzed as veil rules. Provisions, structures, and practices as diverse as the Ex Post Facto and Bill of Attainder Clauses, (5) the Emoluments Clause, (6) the Twenty-Seventh Amendment, (7) Article V's procedures for constitutional amendment, (8) the doctrine of precedent, the original mechanism for selecting senators (by vote of the state legislatures), (9) and the rules governing presidential election and succession (10) may all profitably be considered in this light, although not all of these should count as examples of veil rules rightly understood. The legal literature on these and other topics makes casual references to the veil of ignorance, but there has been very little sustained examination of the subject of veil rules as a general strategy for promoting impartial decisions under actual constitutions. (11) My initial aim, then, is to synthesize and critique these localized literatures in order to obtain an overview of a recurring theme in constitutional design. …