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Future interests are at once docile creatures which accommodate all sorts of human and social objectives and beastly difficult abstractions which drive us to tears. Breaking property into smaller bits along temporal lines—such is the basic idea of present interests and future interests. Typically, we think of future interests (remainders, reversions, and the like) in the context of real property.
In 1901, John Chipman Gray (1839-1915) published a 23-page essay in the Harvard Law Review titled Future Interests in Personal Property. Its title was descriptive of its content. It considered the application of temporal divisions to chattels. In doing so, Gray’s article reviews an historical error connected with chattels real and chattels personal, observes the divergence of American law from English common law, and unearths a breakdown in doctrine where future interests are applied to consumable articles. His article remains lively and relevant today.
Gray would have been among the first inductees into the Future Interests Hall of Fame, if there had ever been one. Gray is known to generations of law students for his precise framing of the Rule Against Perpetuities “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” He did so in his book, The Rule Against Perpetuities—once again aptly titled by its author.
Succinct and lovely are his phrasings. Helpful, too. His reduction distilled hundreds of cases to a single sentence. The Rule Against Perpetuities will always be associated with his name.
To any who doubt that the prose of future interests all-star can be fairly described as lovely, consider the introduction to Future Interests in Personal Property article where Gray restates an exchange between himself and a law student; “a short Socratic dialogue in which,” he emphasizes, “I do not play the part of Socrates.”
S. … You say that future interests in chattels are executory, and yet in the only cases in which it is of any consequence whether they are vested or executory, you treat them as vested.
G. It would seem that that is what I do.
S. But, by the shade of that great man, Mr. Pooley, that is strange.
G. It is indeed strange.
S. Why do you act thus?
G. It is desirable that future interests in personalty should be considered vested for several reasons. First—
S. Pardon me, but I do not deny that future interests in personalty should be treated as vested—that, indeed, is excellent—but why, if you always treated them as if they were vested, do you persist in calling them executory?
G. Because Lord Coke, and Mr. Preston, and Mr. Joshua Williams say I must. We should revere the gods.
(P. 397-98.) If that is not a delicious exchange—or at least a window into what a buoyant lecturer Gray must have been, interruptions, playfulness and all—I do not know what is. What’s more, Gray’s willingness to concede that his scholarly inspirations derived from a conversation with a student is disarming.
Gray applied his powers of case law distillation to the confusion he identified in his Socratic exchange. The problem, as he saw it, lay in the development of one doctrinal body for chattels personal and another for chattels real, when in truth the same rules ought to apply to both. “Would it be,” he asks rhetorically, “too bold a step on the part of the courts to drop this bit of antiquated scholasticism and put chattels real in the same position as chattels personal?” (P. 420.)
Gray saw no problem with splitting chattels along with realty into present and future estates. “There are no feudal doctrines to limit their creation, and they are not dependent on any statutes abrogating those doctrines,” he observed. (P. 401.) The same could be still said today.
Gray ended his article with this note: “A main motive in writing this article has been the hope that it may lead to a fuller examination of the authorities than has been had. The cases on future interest in personalty are so badly digested that one comes upon many of them only by accident.” (P. 420.) It is a sad note because his article has been neglected over the past 115 years. No one seems to have ever taken up his invitation to further this scholarship.
In the seminal personal property future interests case, Gruen v. Greun, 68 N.Y. 2d 48 (1986), Gray’s article merits not even a nod. Gruen is well known to professors who teach property law. It involved the gift of a future interest in fee of a Gustav Klimt painting, Schloss Kammer am Attersee II.
The facts of the case recite that the elder Gruen wrote a birthday letter to his son explaining that he was giving him the painting, but wished to retain possession of it for life. When the father died, his young widow claimed the painting for herself. The court concluded that there was no reason why a gift of a remainder interest in a chattel such as a painting should not be honored.
The court rejected the widow’s policy argument; that allowing future interests in chattels would defeat the Wills Act formality requirements and “lead courts to effectuate otherwise invalid testamentary dispositions of property.” The holding was consistent with Gray’s observation that although England only allows the creation of a future interest in a chattel by will, in the United States (excepting North Carolina), it can even be done inter vivos. (P. 419.)
One exception, Gray noted: “If a cellar of wine is bequeathed to A for life or for a year, he has the absolute interest, for there is no restraint on his power to drink or waste it.” (P. 408.) Future estates’ doctrines cannot be applied to consumable articles without a breakdown. When ordinary use constitutes waste, the balancing of interests between life tenant and remainderman becomes unworkable. How could the law allow a life tenant temporary enjoyment to an estate in wine if she could never take even a single sip?
Among law teachers, personal property is typically seen as more manageable than the abstractions that accompany realty. But the application of future interests to chattels is rather cosmic. Unsettling, even. Splitting real property—the existence of which seems infinite—into present and future estates is easier to grasp. Future interests in destructible chattels? That’s puzzling.
Gray’s largely forgotten 1901 article can help. In it, he introduces the idea of future interests in personalty as he introduces chattels themselves to the various estates. Gray deftly examines his passion—future interests—and infects the reader, as he must have infected his students, with his fascination for property law.
For those who teach and write about the federal courts and/or constitutional law, Alexander Bickel’s 24-page review of how the Voting Rights Act fared in the Supreme Court – a lucid dissection of South Carolina v. Katzenbach, Harper v. Virginia State Board of Elections, and Katzenbach v. Morgan — would almost certainly be worth a read as a pure matter of historical (and academic) curiosity.
What’s particularly salient about Bickel’s analysis, though, is its contemporary relevance along at least two axes. First, it provides the outlines of a rejoinder to the Supreme Court’s 2013 conclusion that key provisions of the VRA are unconstitutional (for economy of space, I’ll leave this issue to the interested reader). Second, and, even more significantly, it makes perhaps the most emphatic argument against broad state standing in lawsuits challenging the scope of federal government policies — including Virginia’s rejected challenge to the Affordable Care Act’s individual mandate and Texas’s pending challenge to President Obama’s “deferred action” immigration policy. Thus, although no one needs convincing that Bickel was the first among equals, contemporary readers might benefit from this relatively short and less well-known piece of his.
I. Bickel and South Carolina v. Katzenbach
The irony of how quickly the VRA ended up before the Supreme Court was not lost on Bickel, whose essay opens with the observation that “[v]ery few statutes can ever have been drafted with a warier eye to the prospect of litigation, or a keener intention to ward it off as long as possible.” In that regard, at least, Congress failed miserably. South Carolina moved for leave to file an original bill of complaint in the Supreme Court fewer than six weeks after the VRA was signed into law, and, nervous at the prospect of defending the statute’s constitutionality in potentially hostile southern district courts, Attorney General Katzenbach responded by moving to file an original bill of his own against Alabama, Mississippi, and Louisiana (and refusing to oppose South Carolina’s).
Although the merits issues were practically identical, the Court denied the government’s motion for leave to file, and on the same day granted leave to South Carolina, even though, as Bickel notes, it was only that bill that raised a potentially fatal jurisdictional obstacle — South Carolina’s standing.
Since Massachusetts v. Mellon in 1923, if not before, the Supreme Court had steadfastly held to the rule that a state may not sue the federal government as parens patriae of its citizens, since “it is no part of its duty or power to enforce their rights in respect of their relations with the federal government.”
As well-established as the rule was, no prior commentator had done anything to explain why such a rule was necessary beyond pure fidelity to precedent. Bickel’s discussion of South Carolina remedied that gap. As he opened his discussion, “[a] state is said to have no standing in such circumstances, not because the interests asserted are unreal or inadequately particular to the state, but because by hypothesis they should not, in such circumstances, suffice to invoke judicial action.” What state standing threatened to undermine, Bickel explained, was the “simple proposition” that,
the nature of the federal union, the power and function of Congress and the President, and the power and function of the judiciary all would be radically altered if states could come into the original jurisdiction at will to litigate the constitutional validity of national law applicable within their territories. To allow the states to litigate in this fashion . . . would be a fundamental denial of perhaps the most innovating principle of the Constitution: the principle that the federal government is a sovereign coexisting in the same territory with the states and acting, not through them, like some international organization, but directly upon the citizenry, which is its own as well as theirs.
In addition to the potentially serious sovereignty implications of allowing liberal state standing, Bickel also suggested that “[i]t would make a mockery . . . of the constitutional requirement of case or controversy . . . to countenance automatic litigation — and automatic it would surely become — by states situated no differently than was South Carolina in this instance.”
Finally, as if those first two critiques weren’t enough, Bickel also suggested that allowing such standing would precipitate preemptive and premature litigation that would force constitutional judgments based on underdeveloped (if not undeveloped) records. “Time and again, precisely like a council of revision, the Court would be pronouncing the abstraction that some law generally like the one before it would or would not generally be constitutional in the generality of its applications.” As Bickel concluded, “[s]uch an abstraction was what the Court was reduced to pronouncing on the merits of [South Carolina].” Indeed, although the Court dismissed South Carolina’s due process and bill of attainder claims for lack of standing, it rejected on the merits South Carolina’s argument that Congress had exceeded its power to enforce the Fifteenth Amendment, albeit in a manner that, Bickel concludes, only reinforces the added benefit that might have accrued had “the Court allowed real cases to arise.”
To be fair, Bickel’s analysis of the standing issue in South Carolina had one flaw: As Justice Black would explain five years later in Oregon v. Mitchell, states may well have a unique sovereign interest in the allocation of power vis-à-vis elections as between the state and federal governments, since Article I, Section 4 specifically leaves the “Times, Places, and Manner” of federal elections to state control. Thus, a stronger argument could be made that the Court in South Carolina was recognizing South Carolina’s unique interest as a state in the relationship between Article I and Congress’s power to enforce the Fifteenth Amendment. Such unique interests help to explain why, in cases like New York v. United States and Massachusetts v. EPA, the Court didn’t balk at the identity of the plaintiff, or why states were held to have standing to challenge the ACA’s Medicaid expansion, but not its individual mandate. Whether or not South Carolina thereby falls on the right side of the line, Bickel’s jeremiad against undifferentiated state standing is not undermined by his failure to anticipate an argument that wasn’t made at the time. At most, South Carolina is the exception that proves the rule, and one which helps to illuminate the very serious stakes of the standing issue in the pending challenge to the individual mandate.
II. State Standing and Contemporary Litigation
As readers surely recall, the core of the challenge to the ACA’s individual mandate was the claim that Congress has exceeded its Article I regulatory powers — the same kind of claim on which Massachusetts rested its standing in Mellon and on which dozens of states unsuccessfully rested their claim to standing in dozens of cases since. The critical factual distinction of those cases on which Virginia rested its standing in the ACA litigation was the Virginia Health Care Freedom Act, which provides that
No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where an individual is named a party in a judicial or administrative proceeding.
Thus, Virginia argued, its sovereign interest in enforcing its own laws is injured by the individual mandate (which, to the extent that it’s valid, preempts the Virginia Health Care Freedom Act).
Whereas a formalistic reading of Mellon and its progeny might provide support for the notion that the Virginia Health Care Freedom Act is enough to distinguish the earlier cases, Bickel’s explication of Mellon’s analytical underpinnings helps to show why the existence of a putatively conflicting state law is a distinction without a difference. After all, if preemption, standing alone, were sufficient to confer standing, then the category of federal laws that could be challenged by states qua states is virtually limitless. Indeed, states wouldn’t even be limited to constitutional claims on this reading; the existence of a putative conflict between federal and state law would be enough for a state to sue challenging whether the conflict even exists — a claim sounding at most in statutory interpretation.
Nor was the Virginia Health Care Freedom Act a unique state law. One needn’t have looked far to find laws similarly exempting citizens from compliance with certain federal laws in Idaho, Arizona, and a steadily growing number of other states. To be sure, these laws are political theater, since the constitutionality of the federal laws at which they are directed does not — and cannot — turn in any meaningful way on the existence of a conflict with state law. But if these same laws are sufficient to create standing, then the fears Bickel expressed in his analysis of South Carolina may well come true, 45 years later.
Moreover, any suggestion that the ACA litigation was unique vis-à-vis state plaintiffs is belied by the litigation challenging President Obama’s deferred action immigration policy, which both the district court and a divided panel of the Fifth Circuit invalidated under the Administrative Procedure Act only after concluding that Texas (and the 25 other states who joined it as plaintiffs) had standing. Whereas Texas claimed that its standing derived from the incidental added costs of providing drivers’ licenses to those undocumented immigrants who received temporary lawful status under the policy, the injury it suffered was neither (1) unique to Texas (or some discrete subset of the states); nor (2) in violation of a specific right federal law conferred upon the states, as such.
To be sure, I’m not one who generally counts himself a fan of restrictive standing rules. Nor do I think arguments against standing can (or should) be used simply to avoid reaching the merits of high-profile constitutional litigation. But absent some far more specific harm to states like Virginia under the ACA or Texas under the deferred action policy, reaching the merits of these suits, risks opening the very floodgates against which Bickel inveighed by allowing states to use litigation in lieu of the political process to challenge virtually any federal policy with which they disagree.
If nothing else, appreciating what those floodgates are, and why they matter, makes his essay worth a (modern) read.
In the interest of full disclosure, I should note that I served as co-counsel to a group of federal courts professors as amici curiae in support of the government’s appeal to the Fourth Circuit in Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253 (4th Cir. 2011). Needless to say, the views expressed herein are mine alone.
Norton E. Long, Bureaucracy and Constitutionalism, 46 Am. Pol. Sci. Rev. 808 (1952).
Towards the beginning of his book Law and Disagreement, Jeremy Waldron says that he will offer an airbrushed view of legislatures and their capacities, as a deliberate counterpoint to the romantic view of courts so prevalent in the older literature on legal and constitutional theory. Others have offered optimistic accounts of the Presidency. But has anyone done the same for the federal line agencies and civil service — the federal bureaucracy? Will no one give us a vision of bureaucratic nirvana?
An unpromising assignment, to be sure. But it turns out that someone has taken it on, and done it superbly. In 1952 a public administration scholar, Norton E. Long, wrote an article on “Bureaucracy and Constitutionalism” in the APSR. The article offers nothing less than a vision of an American public law order guided, shaped and perfected by a quasi-independent administrative bureaucracy. Long’s article has been cited a couple of hundred times in the public administration literature, but — by my highly unscientific count — only a handful of times in the legal literature. As far as administrative law and the theory of the administrative state go, Long’s article is a neglected classic, although Long’s ideas made their way to the legal literature indirectly through the work of other public administration scholars heavily influenced by Long, such as John A. Rohr (in his 1986 book To Run a Constitution).
Long offers two major claims, the first about representation, the second about checks and balances. The first claim is that “[i]f one rejects the view that election is the sine qua non of representation, the bureaucracy now has a very real claim to be considered much more representative of the American people in its composition than the Congress” (814). The bureaucracy is an indispensable medium of representation because Congress itself is dysfunctional; it is incapable of acting either as a pluralist aggregator of preferences and interests, or as a locus for civic deliberation on the common good. “Important and vital interests in the United States are unrepresented, underrepresented, or malrepresented in Congress. These interests receive more effective and more responsible representation through administrative channels than through the legislature.” (811).
The claim is striking, but what if anything might make it true? Why exactly is the unelected bureaucracy more representative than Congress? Long’s point is sociological and demographic. Congress is, in effect, a quasi-oligarchic institution dominated by the elite, and inevitably so; as scholars like Bernard Manin have stressed, elections have always been a selection mechanism whose tendency is to favor the natural aristocracy of wealth and position, especially in the large electoral districts characteristic of the United States. By contrast, the federal civil service is a “democratic carriere ouverte aux talents” (814). Because of the “origin, income level, and associations” (813) of those who enter the federal civil service, it is far more broadly representative of the mass of the population than are federal legislators. The civil service incorporates middle-income professionals with public schooling and training in diverse practical professions and sciences; above all, the civil service “refus[es] to block the path of the common man by educational qualifications beyond the reach of the poor” (814).
So much for the civil service and Congress. In this article Long does not offer any sustained contrast between the civil service and the institutional Presidency, only because he had earlier argued at length that (what we would now call) presidential administration could not provide an adequate remedy for the structural deficiencies of Congress. (The article is “Power and Administration,” Public Administration Review 9(4): 257-264 (1949)). Presidential administration promises to achieve democratic accountability through policy coherence; it promises to rationalize administrative priorities and regulatory action into a coherent agenda that the voting public might judge at election time. But in Long’s view all this is a sheer fantasy. Although in times of war or emergency the public will tolerate short-run coordination of the entire federal bureaucracy, in normal times the Presidency simply lacks sufficient political power to harmonize the administration. Vertical lines may be drawn on the organizational chart, of the executive branch, but de facto political power will remain “dispersed and divided” among congressional committees, heads of agencies, and interest groups, and this will ensure the failure of presidential administration. In this fractured landscape, the independent civil service is the only body that can act coherently and consistently with a view to promoting the public interest.
Precisely because the independent civil service enjoys a broadly representative demographic and sociological base, it may be trusted to act as a kind of constitutional balance wheel among the President, Congress and the judiciary; this checking function of the bureaucracy is Long’s second major point. Long sometimes refers to “the administrative branch,” and urges that “our great fourth branch of government” should “tak[e] its rightful place” alongside the branches that happen to be mentioned in the Constitution (818). What makes its place rightful, despite its lack of an electoral connection and a dubious constitutional pedigree, is that the bureaucracy contains within itself “a balance of social forces” (813). The enormous standing armies of the Western democracies no longer pose a serious threat to constitutionalism because they are “neutraliz[ed]” by their democratic composition; so too, the internal pluralism of the bureaucracy “insures its constitutional behavior and political equilibrium” (813).
It would, I think, misunderstand the spirit and purpose of Long’s article to carp at its roseate view of the bureaucracy. To offer such a view is its very point. We might see Long as standing in the same relationship to the civil service as a myriad of constitutional law professors d’un certain age stand, or stood, to the federal judiciary. These law professors took an internal perspective on the work of the Warren and Burger Courts, attempting to put the judges’ decisions in their best light — in part by arguing that the courts were, counterintuitively, more democratically representative than malapportioned, corrupt and politically irresponsible legislatures. So too with Long, mutatis mutandis. In the tradition of public administration, his perspective on the federal bureaucracy is internal, not external, or at least it is both, not just the latter. (Students of bureaucracy in political science departments, by contrast, take a strictly external perspective; what they see, they see very clearly, but there is a great deal they altogether overlook).
Imagine a trained professional of modest background who has climbed into the ranks of the Senior Executive Service. This civil servant tries to promote the national welfare as best she can, subject to political constraints arising from the absurd demands and irrelevant objections of congressional committees, underlings in the White House, hidebound lawyers and judges, and other actors who distort enlightened policymaking. She may be forgiven for thinking of herself as more representative of the people, more to be trusted with the well-being of fellow citizens, than any of her tormentors. Long sees the American constitutional order through the eyes of someone like that; if it is not a perspective all of us need share, it is good that someone has expressed it.
Perhaps Herbert Wechsler needs no introduction, no expression of appreciation. He did, after all, leave an indelible mark on three bodies of law: criminal law, constitutional law, and the law of federal jurisdiction. He served as the third director of the American Law Institute, shepherding an important collection of Restatements through the process of drafting and approval. Also in his director’s role, he played a central role in the ALI Study of the Division of Jurisdiction Between State and Federal Courts (1969), which occupies a place on my federal courts bookshelf alongside the 1953 casebook Wechsler wrote with Henry Hart.
But despite his many contributions to legal scholarship, Wechsler’s reputation these days might appear to depend on two articles: 1959’s Toward Neutral Principles of Constitutional Law and 1953’s The Political Safeguards of Federalism. The first has suffered from its criticism of the Supreme Court’s decision in Brown v. Board of Education, which comes as close as one can these days to academic apostasy. The second contributed an enduring idea to the canon of constitutional law, but one that may have fallen temporarily from grace with the rise of the judicially enforced federalism of the Rehnquist Court.
I want to focus instead on Wechsler’s 1948 article, Federal Jurisdiction and the Revision of the Judicial Code. I find myself returning to the article for a number of reasons. To begin with, the choices of the 1948 revisers and codifiers remain very much a part of our jurisdictional law over sixty years on, as do Wechsler’s criticisms of those choices. In addition, the article has the remarkable Wechslerian ability to identify doctrinal and statutory rough patches and foresee new departures in jurisdictional law. Indeed, a surprising number of Wechsler’s suggestions have been written into the law of federal jurisdiction, either by Congress or the Supreme Court, thus underscoring the power of scholarship as a tool of effective law reform. Wechsler managed to accomplish all this in thirty pages, deploying a gift for concision we should all envy.
Finally, the article offers a glimpse backward to the middle years of the twentieth century, when Congress was placing the government on a more responsible footing in relation to the citizens hurt by the conduct of government business. Congress had just adopted the Administrative Procedure Act and the Federal Tort Claims Act, both aimed at facilitating litigation to remedy illegal federal government action. Rather than something that courts and commentators cherished or sought to defend, sovereign immunity was rightly regarded as a relic of a less enlightened age.
Wechsler began with a simple statement of principle: in general, federal courts should focus on the litigation of federal questions and should steer clear of matters of state law. In this approach, Wechsler was part of a broad group of scholars and jurists (including Felix Frankfurter and Henry Friendly) who thought of the business of the federal courts from a post-Erie perspective that cast doubt on the wisdom of expending federal judicial resources to resolve state law matters in diversity. Not only did the cases burden the federal courts, but they presented in its most “aggravated form” the worrisome possibility that federal courts would misapply state law. Curiously, recent legislation (including the Class Action Fairness Act and the Multi-Party Multi-Forum Trial Jurisdiction Act) seems to have lost touch with that simple principle, expanding the scope of minimal diversity jurisdiction without attending to the accompanying problems of choice of law.
In proposing to simplify jurisdiction over claims against the federal government, Wechsler began with the view that sovereign immunity should be limited in favor of a principle of government accountability. A similar principle emerged in a 1976 amendment to the APA, although immunity remains a stumbling block far too often. Second, he advocated the elimination of any amount-in-controversy requirement, not only for claims against the government but for all claims based upon federal law. Eventually, Congress came to agree, although not for thirty years. Third, he offered a series of useful suggestions to address venue issues in mandamus proceedings, something Congress fixed in 1962. Fourth, he called for recognition of a general principle that challenges to the legality of federal official action belong in federal court, not only to be implemented through the government’s right to remove (which first appeared in the 1948 codification) but also as a plaintiff’s right to lodge the case in federal court in the first instance. In thus anticipating the Bivens action, albeit on a much wider scale than it occupies today, Wechsler suggested that federal common law should provide the measure of official liability. Finally, Wechsler criticized the derivative jurisdiction removal doctrine, which holds that removal jurisdiction attaches only where the state court could have asserted jurisdiction had the action remained there. Congress eliminated this rule from general removal law, although the federal government continues to invoke it, unfortunately with some success, for its own special benefit.
Other comments in the article, large and small, anticipate and challenge jurisdictional developments. For example, Wechsler dealt quite pithily with the problems of federal-state relations presented by the Ex parte Young doctrine. He noted the rise of equitable abstention doctrines, and called for a more general approach: federal courts should stay their hands when states offer a plain, speedy, and adequate remedy. Wechsler recognized that by casting the burden on the states to demonstrate the existence of an adequate remedy, federal law would go far to ensure its ready availability. Yet he would have created an exception for actions brought under the civil rights statutes, thus recognizing that state-federal tension in the coming years was likely to center on such equality claims, rather than the substantive due process claims brought to federal court in Ex parte Young itself. Apart from abstention, Wechsler sketched a clever solution to the problem of supplemental jurisdiction, suggesting presciently that jurisdiction should attach to transactionally-related pendent state claims subject to discretion in the district court to send state law matters back to state court. He even called for the tolling of the limitations period while the later-dismissed state claims were pending in federal court.
As for the problem of choice of law, Wechsler endorsed the Erie doctrine but called for wide recognition of the power of federal courts to fill gaps and enforce federal rights through the development of federal common law. Wechsler would have dealt with the problem by amending the Rules of Decision Act to provide that, for the enforcement of all federal rights and duties, “the federal courts are authorized to grant all remedies afforded by the principles of law, unless an Act of Congress otherwise requires or provides.” Under such a statute, the power of the federal courts to give effect to federal rights, either through rights of actions or remedies, would have been clearly acknowledged, and much of today’s sturm and drang over implied rights of action might have been avoided. Wechsler also anticipated Friendly’s famous paper, In Praise of Erie—And of the New Federal Common Law and the future course of decisional law by arguing that all such federal judge-made law should be regarded as binding in state court.
Wechsler may have overreached on one question. Offering a broad view of Congress’s power to expand the jurisdiction of the federal courts, Wechsler argued that a grant of jurisdiction within a field of congressional competence might operate as a legitimate form of federal regulation, even where state law was to apply. While the Court has been unwilling to embrace this conception of protective jurisdiction, its approach to federal ingredient jurisdiction allows Congress to achieve similar goals with relatively modest federal substantive law provisions (as it has done under the Federal Tort Claims Act and the Foreign Sovereign Immunities Act). Protective jurisdiction of Wechslerian breadth thus remains but a glimmer in the scholar’s eye.
Although 63 years have passed, Wechsler’s article still rings true and continues to offer a reform program of surprising relevance today. Let’s think for a moment about what Wechsler brought to this lasting piece of scholarship: a sure-handed command of existing law; an understanding of how the legislative and judicial processes work; an imaginative conception of the potential range of doctrinal growth; and a keen eye for the changes that would require legislative involvement. Apart from these gifts, Wechsler believed in the importance of law reform as a positive program for change led by legal scholars. In a world increasingly devoted to the work of scholars who care little for the content of law, Wechsler’s commitment to a scholarship of law reform may, ironically, be the feature of the article least likely to survive.
Herbert W. Horwill, The Usages of the American Constitution (1925).
A great deal of recent work distinguishes the small-c constitution from the Constitution. The latter is the written document, whereas the former is an amorphous and ever-changing body of constitutional norms, customs, and traditions – “constitutional conventions,” to use the umbrella term that Commonwealth lawyers have developed to talk about unwritten constitutions. The recent work on small-c constitutionalism, however, has almost invariably neglected a classic and illuminating book on constitutional conventions in the United States: Horwill’s Usages of the American Constitution. A “neglected classic” sounds like an oxymoron, but Horwill’s book is proof that such a thing can exist.
Horwill was an English writer who lived and traveled in America and reported upon its natives and their curious customs for an audience in the Old World; his book thus falls into a genre defined by Tocqueville and Bryce. Because the past is another country, many of the constitutional usages that Horwill discussed in 1925 seem exotic today. In the 19th century, there was apparently a constitutional convention that the President should not travel outside the territory of the United States during his term of office. The convention was sufficiently powerful, Horwill relates, that presidents would meet their Mexican counterparts half-way across a bridge over the Rio Grande. Woodrow Wilson shattered the convention with his extended stay in Paris after the First World War, and it has now vanished from view altogether.
Wilson also shattered another convention, which held that the President should deliver messages to Congress in writing, never orally and in person. The Constitution’s text requires a State of the Union message, but does not specify the form it should take. Washington and Adams delivered speeches in person, but Jefferson switched to written messages – according to Bryce and Horwill, either from the high republican principle that the president should not overawe Congress with his quasi-monarchical presence, or because Jefferson disliked public speeches. Jefferson’s practice became encrusted with a constitutional aura and lasted for over a century.
In these examples and more generally, the central theoretical question is how constitutional usages arise and then persist, change or disappear over time. Horwill explicitly defines “usages” to refer to conventions in the Commonwealth lawyers’ sense – not mere behavioral regularities, but behavioral regularities resting on a “general agreement” that the behavior is “the proper thing to do.” (P. 22.) But how do such general agreements with normative force develop and change? Much of the literature on small-c constitutionalism skates over these questions, and thus works with ill-specified concepts or posits conventions and norms without specifying any underlying causal mechanisms.
The puzzles are numerous and daunting. If the conventions against presidential travel abroad and against oral delivery of messages to Congress existed, how could Wilson violate both of them without serious political repercussions? Perhaps the near-costless violation of a purported convention shows that it never existed at all, as Jon Elster suggests in a recent paper on unwritten constitutional norms. Conversely, however, some conventions seem to come into existence only when and because they are violated. After President Obama chastised the justices of the Supreme Court, sitting at his feet during a State of the Union Address, some claimed that Obama had violated a constitutional norm protecting the justices’ independence. Before Obama acted, however, no one claimed that such a norm existed because presidents never publicly confronted the justices in person, face-to-face, and so no one thought about the issue. The norm crystallized only after and because it was shattered.
Horwill devotes a chapter to how and why constitutional usages change, and offers some acute observations. His main theory is straightforward: constitutional usages are shaped by the anticipation of sanctions from public opinion, which constrains officials and politicians through fear of public shaming or loss of an election or a job. Every four years, presidential electors, who the framers thought would exercise independent judgment, instead vote slavishly along party lines and thus, as a group, vote for the candidate of whichever party prevailed at the polls. They do so in part because other electors have done so in the past, but mainly because the parties and indeed the general public would be outraged if they did otherwise. Furthermore, political actors under the shadow of public opinion will make “mutual concessions for the avoidance of a deadlock in the government,” (P. 209), presumably because constitutional showdowns are a risky game in which either side may come out worse – as the Republican congressional majority discovered when it forced a government shutdown in 1995, and suffered for it politically. The concessions needed to avoid such a fate establish new usages, which in turn become focal points that shape future behavior.
Yet Horwill also explores complications. Public opinion is often inert or nonexistent on a given issue. “If the questions involved do not arouse general interest, a new usage may easily be established or an old one easily abrogated.” (P. 207.) Moreover, public opinion is partially endogenous and can be molded by political actors to some degree. Wilson was able to shatter the convention against oral addresses to Congress because he was reverting to the earlier convention of oral address established by Washington, and then changed in turn by Jefferson. In effect, Wilson appealed from traditional norms to the higher authority of the even more remote past.
Finally, and most importantly, Horwill suggests that usages can prove sticky over time just because they shape the perceived boundaries of political possibility. What propped up the post-Jefferson convention against oral addresses to Congress was not fear of public opinion, but lack of imagination: “[A]lthough the [Jeffersonian] tradition had come to be generally recognized as an unfortunate one, it did not occur to any President, until Mr. Wilson took office, that he had the power to break away from it.” (P. 199.) The cognitive hegemony of convention persists until some extraordinary actor sees that there is an unexploited opportunity to turn the unimaginable into fact.
Here and throughout, Horwill’s book is humbling. At any given time the set of unwritten conventions seems fixed, yet from the standpoint of history they have a short half-life, and many of today’s conventions will be gone a century hence. Indeed, conventions are fragile and might pop like a soap bubble instead of decaying gradually. Who knows what central unwritten usages of our constitutional order, seemingly unassailable today, might “disappear suddenly, almost at a touch”? (P. 207.)
Jotwell is an online journal devoted to reviews of the great recent writing related to the law that top scholars in the field believe deserves a wide readership.
The Classics section, however, is a little different: it provides a home for the occasional review of classic works of law, especially those unjustly neglected. (To qualify as a ‘classic’ for this purpose the work must have been published at least 50 years before the review.) Unlike Jotwell’s other sections, the Classics Section doesn’t have a board of editors, nor will we attempt a regular publication schedule. We’ll publish something appropriate only if and when someone is moved to write it.