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Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity

Published online by Cambridge University Press:  20 November 2018

Julian N. Eule
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Abstract

According to the general wisdom, legislatures lack both the power to “entrench” their enactments against alteration by their successors and the power to “retroactively” undo the efforts of their predecessors. The author argues that, rather than being in conflict, these principles share a common theme. Legislatures operate as agents of the people under constitutionally defined mandates that are limited in time as well as scope. Actions that transcend—either forward or backward in time—the temporal delegation of authority conferred by periodic elections do not bind the electorate. In the first half of the article the author suggests that an understanding of the rationale behind the entrenchment prohibition can help shed light on a diverse group of issues including congressional power to prescribe internal rules of operation, constitutional amendment procedures, and legislative impairment of contracts. In the second half of the article the author takes issue with the traditional objection to retroactivity grounded on vested rights and unfulfilled expectations. In its place he proposes a theory of retroactivity embodied in republican principles concerning the temporal relationship between the people and their legislative agents.

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American Bar Foundation Research Journal , Volume 12 , Issue 2-3 , Spring-Summer 1987 , pp. 381 - 459
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Copyright © American Bar Foundation, 1987 

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References

1 Farewell concert of the Weavers, Carnegie Hall, December 1980.Google Scholar

2 The American scholarship that does exist on the subject, while extremely thoughtful, has tended to address the issue in the context of a foreign legal structure. See Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964) (England); Melville B. Nimmer, The Uses of Judicial Review in Israel's Quest for a Constitution, 70 Colum. L. Rev. 1217, 1227–38 (1970). Occasionally, the entrenchment prohibition has been viewed in the isolated context of a single effort by one Congress to dictate rules of operation to its successors. See Charles L. Black, Jr., Amending the Constitution: A Letter to a Congressman, 82 Yale L.J. 189 (1972) (addressing congressional attempt to establish internal procedures for consideration of state applications for a national constitutional convention); Paul W. Kahn, Gramm-Rudman and the Capacity of Congress to Control the Future, 13 Hastings Const. L.Q. 185 (1986) (addressing congressional attempt to reduce budget deficit by imposing automatic reductions on future congressional spending beyond stipulated limits).Google Scholar

3 Black, 82 Yale L.J. at 191. Accord Dellinger, Walter, The Legitimacy of Constitutional Change: Rethinking the Amendment Process, 97 Harv. L. Rev. 386, 392 (1983) (decisions of one Congress cannot bind a subsequent Congress). Professor Dellinger's assertion is supported entirely by a citation to Professor Black. Id. at 392 11.30. While a few United States Supreme Court decisions have invoked the entrenchment prohibition, no real analysis has accompanied the reliance on the principle. See Toomer V. Witsell, 334 U.S. 385, 393 n.19 (1948) (action of state legislature does not impose a constitutional limit on the power of future legislatures); Reichelderfer V. Quinn, 287 US. 315, 318 (1932) (the will of a particular Congress does not impose itself upon those to follow in succeeding years); Stone v. Mississippi, 101 U.S. 814, 817 (1880) (legislature cannot bargain away the police power of a state); Newton v. Comm'rs of Mahoning County, 100 U.S. 548, 559 (1879) (every succeeding legislature possesses the same jurisdiction and power as its predecessors). See also Marbury v. Madison, 5 US. (1 Cranch) 137, 177 (1803) (ordinary legislative acts are alterable whenever the legislature sees fit to alter them).Google Scholar

4 See Greenblatt, Ray H., Judicial Limitations on Retroactive Civil Legislation, 51 Nw. U.L. Rev. 540 (1956); Hochman, Charles B., The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692 (1960); Munzer, Stephen R., A Theory of Retroactive Legislation, 61 Tex. L. Rev. 425 (1982); Slawson, W. David, Constitutional and Legislative Considerations in Retroactive Law-making, 48 Calif. L. Rev. 216 (1960); Smead, Elmer E., The Rule Against Retroactive Legislation: A Basic Principle of Jurisprudence, 20 Minn. L. Rev. 775 (1936); Smith, Bryant, Retroactive Laws and Vested Rights, 6 Tex. L. Rev. 409 (1928); Stimson, Edward S., Retroactive Application of Law—A Problem in Constitutional Law, 38 Mich. L. Rev. 30 (1939). See also Kaplow, Louis, An Economic Analysis of Legal Transactions, 99 Harv. L. Rev. 509 (1986).Google Scholar

5 Lest the reader be misled, the term “entrenchment” is used here and throughout this article to describe the efforts of a legislative body to bind future legislatures. See Part IA for a more detailed definition. The term is not used to describe the inviolability of certain economic expectations (the so-called entrenched interests) against legislative attempts at disenfranchisement. Cf. Munzer, , 61 Tex. L. Rev. at 439–44 (using the concepts of entrenchment and disentrenchment to describe the effects of retroactive legislation). In Munzer's usage, entrenchment is, by its very definition, a necessary subject of any treatment of retroactive legislation. Id. It is in the former usage—defining a relationship between a legislature and its successor rather than between the state and the individual—that its relevance to the doctrine of retroactivity has gone unnoticed. Admittedly, there is much overlap between consideration of a legislature's ability to “entrench” (my definition) its enactment against modification by its successors and its ability to “disentrench” (Munzer's definition) the interests and expectations of individuals (see part II), but this is the very synthesis which previous commentators have overlooked.Google Scholar

6 See, e.g., Harris v. Minister of Interior (1952) (2) S. A. 428 (A.D.) (Union of South Africa) (invalidating Union law not enacted according to procedures entrenched by British Parliament in constitutive act, even though Union had subsequently become an independent sovereignty); Bergman v. Minister of Finance, (1969) 23 P.D. 693 (Israel) (invalidating Knesset legislation passed in contravention of procedural requirements entrenched by prior Knesset action); Uganda v. Commissioner of Prisons, (1966) E.A.L. Rep. 514 (Uganda) (upholding resolution of Ugandan National Assembly abolishing British Parliament's constitutive act and replacing it with one of the National Assembly's own making).Google Scholar

7 See part ID. This list of issues is intended to be illustrative, not exhaustive.Google Scholar

8 The focus of this article is civil legislation. Retroactive penal legislation and its limitation by the ex post facto clause is treated only tangentially.Google Scholar

9 See John Hart Ely, Democracy and Distrust (Cambridge: Harvard University Press, 1980). Those who wish to examine my application to the “process” school should read Julian N. Eule, Laying the Dormant Commerce Clause to Rest, 91 Yale L.J. 425 (1982), in which I note that the contemporary dangers of state parochial economic legislation lie more in its evisceration of the democratic process than in its impairment of free trade, id. at 437–55, and construct a model to combat that threat, id. at 455–74.Google Scholar

10 William Blackstone, I Commentaries* 161 (Portland: Thomas B. Wait & Co., 1807).Google Scholar

11 The Union with Ireland Act, 1800, 39 & 40 Geo. III., c. 67. In 1869, the union of the churches was broken by parliamentary act. Mitchell, J. D. B., Sovereignty of Parliament—Yet Again, 79 L.Q. 196, 206 (1963). Equally unsuccessful was the command in the United States Articles of Confederation that the Articles “shall be inviolably observed by every state and the union shall be perpetual.” Art. of Confed. art. XIII.Google Scholar

12 Mitchell, , 79 L.Q. at 206.Google Scholar

13 A. V. Dicey, Law of the Constitution 65–66 (10th ed. London: MacMillan & Co., 1961) (“Dicey, Law of the Constitution”).Google Scholar

14 Though the form of the entrenchment may differ, the issue of the extent of the legislature's power is the same. Either there is power to do all or there is power to do none. See Nimmer, , 70 Colum. L. Rev. at 1231 (cited in note 2).Google Scholar

15 See H. L. A. Hart, The Concept of Law 146–47 (Oxford: Clarendon Press, 1961).Google Scholar

16 It would be folly to suggest that entrenchment can always be so neatly categorized. Imagine, for example, a legislature enacting a rule of statutory construction that precluded repeal by implication and permitted successor legislatures to abrogate prior statutes only by express repeal. (See note 215 for a concrete illustration and analysis of this legislative tactic.) This enactment could be alternatively described as procedural entrenchment (regulating the “form” by which prior directives could be changed) or preconditional entrenchment (requiring an express repeal of prior law as a precondition for the passage of new, conflicting legislation). Since my purpose in devising the three categories is to illustrate what I mean by this abstract concept of entrenchment, and not to suggest a distinct framework for each grouping, I am not overly troubled by the crudeness of the classification scheme.Google Scholar

17 A more ambitious effort at transitory entrenchment can be found in Solon's command that the Athenian Constitution remain unaltered for a hundred years. Aristotle, The Athenian Constitution vii, 2 (Rackham trans. Cambridge: Harvard University Press, 1971).Google Scholar

18 While much of the discussion focuses on entrenchment in the congressional setting, my thesis is intended, subject to the uniqueness of each state's constitutional structure, to be applicable to a broader array of American legislative bodies. See notes 73, 119, 189.Google Scholar

19 It would be somewhat unrealistic to maintain that the article eschews any position on the legitimacy of this constitutional entrenchment. My ultimate conclusion that the prohibition against legislative entrenchment flows from the temporal limits placed on our elected representatives by the Constitution (see part IC2b) is necessarily dependent on certain assumptions about the legitimacy of the procedural entrenchment that the Constitution attempts. See note 70 and accompanying text (Constitution can bind because it originates with the sovereign). I hope to address the validity of the assumptions underlying constitutional entrenchment at a future date. This article, the length of which is guaranteed to test the stamina of the most dedicated reader, is not a proper forum, however, in which to fully explore this extremely complex problem.Google Scholar

20 Although the delegates to the Constitutional Convention of 1787 were appointed by the legislatures of the participating states, the ratifying conventions were directly elected by the eligible voters of each state. I, of course, recognize that, although they were similarly selected, the constituent assemblies were elected for the purpose of entrenching, while legislative assemblies are not. But the differing electoral expectations in the two settings only illustrate rather than explicate the dichotomy we seem to have come to accept so easily. No one perceived this more clearly than Noah Webster, writing as “Giles Hickory” at about the time of the Constitution's adoption. Why should Americans, asked Webster, be so set against legislatures making laws for those who are not yet in existence and at the same time be so confident of the infallibility of constitutional conventions? Conventions, he pointed out, were only “a body of men chosen by the people in the manner they choose the members of the legislature, and commonly composed of the same men; but at any rate … neither wiser nor better.” Noah Webster, “Government,” American Magazine I (1787–88), quoted in Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 379 (New York: W. W. Norton & Co., 1969).Google Scholar

21 26 Stat. 209 (1890), as amended, 15 U.S.C. §§ 1–7 (1976).Google Scholar

22 See, e.g., Arizona v. Maricopa County Medical Soc'y, 457 US. 332 (1983) (Sherman Act violated by physicians' agreement setting maximum fees charged to policyholders of specified insurance plans).Google Scholar

23 Thomas Hobbes, Leviathan 142 (Everyman's Lib. ed. London: J.M. Dent & Sons Ltd., 1914). Accord Bishop Benjamin Hoadly's “Sermon preached before the King, 1717,” cited in John Chipman Gray, The Nature and Sources of the Law 102 (2d ed. New York: Macmillan Co., 1921). The theory has its detractors. H. L. A. Hart finds it difficult to accept the view that a legislative promulgation does not become law until it is actually applied by the courts and enforced by the current sovereign. Hart, The Concept of Law at 63 (cited in note 15).Google Scholar

24 See, e.g., Hobbes, Leviathan at 141 (cited in note 23) (sovereign may, whenever it pleases, repeal those laws that trouble it).Google Scholar

25 Jeremy Bentham, Handbook of Political Fallacies 55, ed. Harold Larrabee (Baltimore: John Hopkins Press, 1952) (“Bentham, Political Fallacies”). Accord Black, 82 Yale L.J. at 195 (cited in note 2) (legislature ought not settle for the future prudential question as to which knowledge of future conditions is needed for intelligent action); Nimmer, 70 Colum. L. Rev. at 1233 (cited in note 2) (dead hand of past should not impede present legislature from rising to needs of the day); Newton v. Comm'rs of Mahoning County, 100 U.S. 548, 559 (1879) (vital to public welfare that each legislature is free to do what present exigencies require).Google Scholar

26 To some degree, of course, all legislation has some entrenching impact. A 1981 congressional decision to deny funds for the development of nuclear weapons will leave the present Congress with only a limited ability to undo the earlier act. No matter how unfettered its legal entitlement to reverse a predecessor's position, the current legislature cannot escape all the consequences of the prior choice. The absence of long-term planning will frequently result in practical constraints on the current legislature.Google Scholar

27 Fuller, The Morality of Law at 114 (cited in note 2). A classic example of the devastation that such circumvention may bring is contained in the Old Testament's Book of Esther. King Ahasuerus, the ruler of Media and Persia, had issued orders commanding the annihilation of all Jews in his Kingdom on a date eleven months hence. Esther 3:8–13. Later, when Queen Esther convinced the King that he had acted in error, he pointed out to her that “an edict written in the name of the King and sealed with the King's ring cannot be revoked.”Id. at 8:8. To satisfy the Queen, however, the King issued a new edict authorizing the Jews to defend their lives and preemptively slay their potential attackers. Id. at 8:11–13. This they did. As a consequence, more than seventy-five thousand persons perished. Id. at 35–16. A more costly dodge is difficult to imagine.Google Scholar

28 Bentham, Political Fallacies at 60–61 (cited in note 25). It is useful to recall that the entrenched nature of the Articles of Confederation led the delegates in Philadelphia to bypass the procedures established by article XIII (requiring consent of all 13 states to amend) and overturn the existing order.Google Scholar

29 Id. at 66–67.Google Scholar

30 Id. at 66.Google Scholar

31 The tale is contained in Plutarch's Lives (Lycurgus) (Perrin trans. Cambridge: Harvard University Press, 1968). For speculation as to the origins of the myth, see E. N. Tigerstedt, The Legend of Sparta in Classical Antiquity 210–15 (Stockholm: Almquist & Wiksell, 1965).Google Scholar

32 Plutarch's Lives 29.3 at 293.Google Scholar

33 Id. 31.5 at 303.Google Scholar

34 Id. 29.6 at 297.Google Scholar

35 Madison believed that this disadvantage was offset by the American “improvement” of resting the fortunes of future generations on a body of citizens rather than on one illustrious citizen. The common deliberations of this group, said Madison, could be expected to produce “more wisdom, as well as more safety.” The Federalist No. 38, at 241, ed. Jacob E. Cooke (J. Madison) (Middleton, Conn.: Wesleyan University Press, 1961).Google Scholar

36 A rigid constitution is one whose provisions cannot be changed in the same manner as ordinary legislation. A flexible constitution, on the other hand, can be altered just as any other law can. Under the latter system, certain laws are called constitutional because they refer to subjects that affect the fundamental institutions of the government and not because they are more sacred or difficult to change than other laws. Dicey, Law of the Constitution at 126–28 (cited in note 13).Google Scholar

37 See, e.g., Diplock's, Lord assertion that a democratic society needs the flexibility to confront emergencies, Lord Diplock, On the Unwritten Constitution, 9 Israel L. Rev. 463, 465 (1974), and the power to change its views as to which rights deserve protection and in what ways, id. at 466. He warns that no government, however wise, omniscient, and prescient, can say what the will of the people will be on a given topic in 50 or even 10 years' time. Id. It is this “practical instinct” that motivates the English rejection of a rigid written constitution. Sir Alfred Denning, The Changing Law 17 (London: Stevens & Sons, 1953). Ordinary legislative machinery, said Lord Justice Denning, must be available to meet changing needs “without a great deal of fuss and bother,” so that no generation might enjoy the power to “fetter the hands of future generations.”Id. Cf. Karst, Kenneth L., Judicial Review and the Channel Tunnel, 53 S. Cal. L. Rev. 447, 451–55 (1980) (modern English debate over a bill of rights focuses on concrete concerns about what the judiciary might do with such a document rather than on abstract questions about entrenchment).CrossRefGoogle Scholar

38 3 The Complete Anti-Federalist 19, ed. Herbert J. Storing (Chicago: University of Chicago Press, 1981).Google Scholar

39 Id. Later in his discourse the Old Whig remarked that he would just as soon take his chance of altering the document by the casting of dice “ti1 I could throw sixes a hundred times in succession.”Id. at 50. He was by no means alone in this sentiment. Patrick Henry, for example, described the way to amendment as “shut.” 5 The Complete Anti-Federalist at 215.Google Scholar

40 See, e.g., 2 The Complete Anti-Federalist at 349 (attempts to bind the majority generally give occasion for breach of contract); id. vol. 3 at 19 (barriers to alteration may lead to violent convulsion or civil war).Google Scholar

41 5 The Complete Anti-Federalist at 216–17. Cf. Alvin Toffler, The Third Wave 433 (New York: Bantam, 1980) (Framers' scheme of government has become increasingly obsolete and thus oppressive and dangerous to our welfare).Google Scholar

42 Although he supported the Constitution's ratification (with an attendant declaration of rights), Thomas Jefferson nonetheless expressed reservations regarding the extent of its entrenchment. The earth, he argued, belongs to the living who may manage it, as they please, during their stay. No society, Jefferson went on to say, enjoys the right to perpetuate its institutions or values. For this reason, he urged that a constitution should last no longer than 19 years. When its framers have passed from the scene, the document ought to cease to exist as well. Letter to James Madison, 1789, in 5 The Writings of Thomas Jefferson 121, ed. Paul Ford (New York: G. P. Putnam's Sons, 1895). Continuity apparently was a value cherished less by Jefferson than by his contemporaries. He believed each new generation was capable of taking care of itself, ordering its own affairs and choosing for itself the form of government most promotive of its own happiness. Letter to Samuel Kercheval, 1816, in S. E. Forman, The Life and Writings of Thomas Jefferson 173–74 (Indianapolis: Bobbs-Merrill Co., 1900). Accord Toffler, The ThirdWave at 433 (a government designed for one civilization cannot cope adequately with the next). It is somewhat odd that Jefferson's view did not carry more weight, in light of the unfortunate experience with the Articles of Confederation. See note 28.Google Scholar

43 On the motivations for and benefits of self-binding efforts, see generally Thomas C. Schelling, Choice and Consequence 57–112 (cambridge: Harvard University Press, 1984); Jon Elster, Ulysses and the Sirens 36–111 (Cambridge: Cambridge University Press, 1984); Thomas C. Schelling, Enforcing Rules on Oneself, 1 J.L. & on. & Org. 357 (1985). Specific reference to the issue of precommitment in the structure of a democratic state is made in Elster at 87–96.Google Scholar

44 See, e.g., Nimmer, 70 Colum. L. Rev. at 1233 (cited in note 2) (certain fundamental societal values should be beyond reach of transitory and casual breach even by men who for the moment speak for the majority); Eugene V. Rostow, The Sovereign Prerogative 120 (New Haven: Yale University Press, 1962) (man can be free only when the state is not free).Google Scholar

45 Many of these considerations were explicitly articulated by the Framers in justifying six-year terms for the members of the Senate rather than the shorter ones served by the members of the House. See The Federalist No. 62, at 418–22 (J. Madison) (J. Cooke ed. 1961).Google Scholar

46 Notwithstanding the Framers' considered choice, it might be feasible to draw distinctions between the nature of legislative and constitutive enactments, by arguing that although the latter profits from stability, the former demands modifiability. While there is some force to the argument that the utilitarian concerns regarding stability and mutability balance out differently in the two instances, the position suffers from two fundamental structural flaws. First, the dichotomy is based ultimately on the nature of the enactment rather than on the enacting body. (But see note 121 for distinctions based on the nature of the enacting body.) Yet many legislative efforts—e.g., the establishment of administrative agencies, the promulgation of rules for the operation of constitutional conventions, and the internal operating rules of the legislative body—are essentially constitutive in nature. Of course, the terms “constitutive” and “legislative,” are admittedly difficult to define with precision, but the very elusiveness of the definitions demonstrates the second flaw of the suggested distinction. Like the search to draw fine lines between what is “substance” and what is “procedure,” the effort to demarcate constitutive from legislative enactments seems doomed to failure.Google Scholar

47 6 & 7 W. & M. ch. 2, § 3 (1694).Google Scholar

48 Dicey, Law of the Constitution at 44–45 (cited in note 13). Although Dicey indicates that the repeal took place in 1716, the official reporting of the statute lists its enactment date as 1714. See note 19.Google Scholar

49 1 Geo. ch. 38 (1714).Google Scholar

50 Some dispute exists as to the term “Parliament.” For Dicey, , it means “the Queen, the House of Lords, and the House of Commons; these three bodies may be aptly described as the ‘Queen in Parliament’ and constitute Parliament.” Dicey, , Law of the Constitution at 39 (cited in note 13). Cf. Black-stone, , 1 Commentaries at 153 (cited in note 10) (constituent parts of Parliament are King, lords spiritual, lords temporal, and commons).Google Scholar

51 Parliamentary supremacy is more commonly referred to in the English legal literature as “parliamentary sovereignty.” See, e.g., Dicey, , Law of the Constitution at 39–85 (cited in note 13). Cf. Phillips, O. Hood, Self-Limitation by the United Kingdom Parliament, 2 Hastings Const. L.Q. 443, 449–50 (1975) (legislative supremacy is a less ambiguous phrase than is sovereignty). Because the notion of sovereignty is less familiar to readers of American legal commentary, I have chosen to initially couch my analysis in terms of supremacy. But see part ICI.Google Scholar

52 While it is true that the 31 members of Parliament who protested the bill challenged the House of Commons's authority to prolong its own legal existence (see 1 A Complete Collection of the Protests of the Lords 218, ed. J. E. T. Rogers (Oxford: Clarendon Press, 1875), cited in Dicey, Law of the Constitution at 46), this idea, prompted no doubt by “party-spirit,” has been “treated with utter contempt by the best constitutional writers.”Philip Henry Stanhope, 1 History of England 201–2 (5th ed. London: Albemarle St., 1858).Google Scholar

53 Hart, H. L. A. describes the concept of transitory supremacy as “self-embracing omnipotence” and that of perpetual supremacy as “continuing omnipotence.” Hart, , The Concept of Law at 146 (cited in note 15). While it is the latter concept of continuing omnipotence that has prevailed in England, the choice “is not necessarily compelled by logic.”Id. at 145. Israel, for example, has chosen to define the Knesset's omnipotence as self-embracing (using Hart's terminology) or transitory (using mine). See Nimmer, , 70 Colum. L. Rev. at 1232–33 (cited in note 2).Google Scholar

54 Wade, H. W. R., The Basis of Legal Sovereignty. Cambridge L.J. 172, 186 (1955). The view that an entrenching act ought to be considered void from its inception enjoys some support in English commentary, id. at 186 n.42, although it is not clear which branch of government would be counted on to announce and enforce such a determination if such a view were adopted. It has not been. See British Coal Corporation v. The King, 1935 A.C. 500. 520 (Sankey, L.C.) (entrenching provision of Statute of Westminster theoretically subject to future repeal but remains enforceable until such time). The infirmity of entrenching legislation is no greater than that borne by all enactments: It is subject to repeal.Google Scholar

55 Blackstone, , 1 Commentaries at 90 (cited in note 10).Google Scholar

56 Dicey, , Law of the Constitution at XXXV & 39–41 (cited in note 13).Google Scholar

57 Sir John William Salmond, Jurisprudence 155 (10th ed. London: Sweet & Maxwell, 1947) (rule that parliamentary acts have force of law is historical, not legal, in origin).Google Scholar

58 Wade, Cambridge L.J. at 188 (cited in note 54) (rule of judicial obedience less a rule of law than a political fact).Google Scholar

59 The ban is complete. Transitory, preconditional, and procedural entrenchment efforts are no more acceptable than absolutist ventures. Distinctions are not drawn between legislation that removes specified topics from the scope of future parliamentary action and that purporting to alter only the manner and form of future legislative efforts. In the latter instance Parliament can be said to have bound future Parliaments and diminished its perpetual supremacy just as surely as in the former. Hart, The Concept of Law at 147; Wade, Cambridge L.J. at 176. See also Ellen Street Estates, Ltd. v. Minister of Health, [1934] 1 K.B. 590, 597 (Maugham, L.J.) (legislature cannot bind itself even as to form of subsequent legislation).Google Scholar

60 See Marbury V. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) (powers of the legislature are defined and limited). In light of this fundamental distinction between the British system and our own, it is startling to find commentators invoking the Blackstonian axiom (note 55) in the American context. See. e.g., Thomas M. Cooky, Constitutional Limitations 248 (8th ed. Boston: Little, Brown & Co., 1927) (although reasoning does not in all its particulars apply to American legislatures, the principle applicable in each case is the same).Google Scholar

61 The affirmative response flows from the “rigid” nature of the United States Constitution rather than from the fact that it is written. See note 36. Constitutions, even written ones, are not intrinsically entrenching. If, as in New Zealand, only ordinary legislative efforts are required to supplement, modify, or repeal the Constitution, it is without entrenching qualities. See New Zealand Constitution (Amendment) Act 1947 (U.K.), 11 Geo. VI, ch. 4, § 1. Even in such a system, however, there remain moral and political restraints on the legislative alteration of constitutional doctrine. See K. J. Scott, New Zealand Constitution 8 (Oxford: Clarendon Press, 1962) (abrogation of certain constitutional acts would result in severe electoral disadvantage to the party doing it).Google Scholar

62 See Samuel Eliot Morison, Oxford History of the American People 273 (New York: Oxford University Press, 1965) (“Morison, Oxford History”). Some colonies did not even bother to hold new elections to legitimize the authority of their existing representatives for this task. Wood, The Creation of the American Republic, 1776–1787, at 307 (cited in note 20).Google Scholar

63 Morison, Oxford History at 274–75. On the history of the Massachusetts House of Representatives' accession to this process, see Wood, The Creation of the American Republic, 1776–1787, at 340–41.Google Scholar

64 See, e.g., The Federalist No. 22, at 145–46 (A. Hamilton) (J. Cooke ed. 1961): “It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers…. The fabric of American Empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority.”Google Scholar

65 As historians have noted, the decision to bypass the state legislatures in favor of popularly elected conventions was in part motivated by a desire to circumvent the anticipated Antifederalist leanings of many of the state legislators. See Morison, Oxford History at 312; Max Farrand, The Framing of the Constitution of the United States 158 (New Haven: Yale University Press, 1913).Google Scholar

66 A few of the state constitutions, like that of New Jersey, were amendable by the ordinary legislative process, but most were procedurally or preconditionally entrenched. The Maryland Constitution, for example, could be altered only by the vote of two successively elected legislatures. Delaware, which had several absolutely entrenched articles, required supermajorities for modification of the remaining provisions. Georgia required change to be initiated by voter petition. South Carolina, with a rare use of transitory entrenchment, demanded 90 days' notice of any alteration. See generally Wood, The Creation of the American Republic, 1776–1787, at 307–8 (cited in note 20).Google Scholar

67 In view of the colonial experience, this apparent incongruity is not surprising. The colonial legislatures were prevented from enacting laws that were contrary to the sovereign will of the English Parliament. The Privy Council of the King held on numerous occasions that colonial laws opposed to the “laws of the Kingdom” were void. Thus the principle of Parliamentary supremacy, which in England left the legislature free to act unfettered by higher law, produced a two-tiered hierarchy in the colonies. Entrenchment was very much a colonial tradition. The source of the higher law, however, was Parliament, a legislative body. See generally Mauro Cappelletti, Judicial Review in the Contemporary World 39–41 (Indianapolis: Bobbs-Merrill Co., 1971) (“Cappelletti, Judicial Review”).Google Scholar

68 The ordinary legislative process, while adequate at the adoption stage, was not sufficient to accomplish repeal. See note 66. Thus the promulgating legislatures were supreme; their successors were not.Google Scholar

69 The adoption of constitutions, such as Virginia's (imitated by a majority of the 13 states), that reflected a legislative supremacy model of government gives further credence to this notion. Under the Virginia system, the legislature was the chief power in the commonwealth and was responsible for selecting the governor and the judges. Morison, Oxford History, at 273.Google Scholar

70 See, e.g., The Federalist No. 39, at 251 (J. Madison) (J. Cooke ed. 1961) (republic is government deriving all of its power from the people); The Federalist No. 49, at 339 (J. Madison) (people are the only legitimate source of power); The Federalist No. 78, at 524 (A. Hamilton) (legislature is servant, the people are master). See also Eastlake v. Forest City Enterprises, 426 U.S. 668, 672 (1976) (all power derives from the people, who can delegate it to representative instruments they create). Michael Perry, who read an earlier version of this paper, warned that a danger lurking in the sort of doctrinal analysis that I attempt is that one might place too much weight on an idealized notion of popular sovereignty. If I have fallen prey to this, I am not alone. See, e.g., Marbury V. Madison, 5 US. (1 Cranch) 137, 176 (1803) (“That the people have an original right to establish, for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected”). Undoubtedly, there are mythical and simplistic aspects to the fundamental assumption that the Constitution represents the voice of “We the people.” See Alexander Bickel, The Least Dangerous Branch 16–17 (New Haven: Yale University Press, 1962). That assumption is not beyond salvage, and more sophisticated versions of the thesis can be found. See, e.g., Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013 (1984) (developing a theory why the popular majorities ratifying the Constitution have a democratically superior claim to speak on behalf of the people than do subsequently elected assemblies). As earlier noted, however, I do not view this article as a proper forum in which to reassess this assumption. See note 19.Google Scholar

71 The Federalist No. 78, at 524 (A. Hamilton) (J. Cooke ed. 1961).Google Scholar

72 Admittedly, the principal/agent model is not the only one available here. The trustor/trustee relationship, for example, might afford an alternative analogue. See, e.g., The Federalist No. 46 (J. Madison) (J. Cooke ed. 1961) (governments are agents and trustees of the people). Because, however, trustees can be strictly viewed as holding legal title (albeit for the benefit of another), I see the trust relationship as a less fitting analogy. Sovereignty never vests, conditionally or otherwise, in the legislative representatives. In any event, it is unlikely that an entrenchment model constructed on the law of trusts rather than agency would look much different.Google Scholar

73 The discussion in the ensuing pages technically purports to deal only with the power of Congress. It is risky to generalize to a given state legislature without first undertaking an in-depth examination of the delegating instrument operating in that state. But see Wiley, John Shepard, A Capture Theory of Antitrust Federalism, 99 Ham. L. Rev. 713, 787 (1986) (state constitutions unlikely to give legislature the power to bind succeeding legislatures). State constitutions do not always share the precise vision of governance reflected in the federal Constitution. Nonetheless, despite my sensitivity to the variations in state constitutions, I believe that the central thesis outlined herein—that a coherent and singular rationale for the entrenchment and retroactivity prohibitions can be molded from the temporal nature of the people's delegation of power—will be equally relevant to any analysis of state legislative authority. See notes 119 & 189.Google Scholar

74 Not to be overlooked, of course, is the impact of the pace of these reforms on those most directly affected: the taxpayers. See Benefits, and Burdens, of Transition to President's Tax Plan, N.Y. Times, May 31, 1985, at 40, col. 1 (West Coast ed.).Google Scholar

75 But see notes 151–68 and accompanying text.Google Scholar

76 The maxim, which American courts still invoke (see, e.g., Patterson v. Independent School Dist. #709, 742 F.2d 465, 468 (8th Cir. 1984)), has its origins in Roman law. Ferdinand Mackeldey, Handbook of the Roman Law § 7, at 3 (Philadelphia: T. & J. W. Johnson & Co., 1883).Google Scholar

77 Under the English system, the question of construction and power would, however, be one and the same, for Parliament clearly enjoys the power to unmake any prior legal command. See Herbert Broom, Legal Maxims 347–48 (10th ed. London: Sweet & Maxwell, 1939) (referring to the maxim in this context as leges posteriores priores contrarias abrogant).Google Scholar

78 Cappelletti, Judicial Review at 52–53 (1971) (cited in note 67).Google Scholar

79 The inapplicability of lex posterior to such a conflict lies at the core of Alexander Hamilton's classic discourse in The Federalist No. 78: The rule which has obtained in the courts for determining … [the] relative validity [of contradictory laws] is that the last in order of time shall be preferred to the first. But this is [a] mere rule of construction, not derived from any positive law, but from the nature and reason of the thing…. [The courts] thought it reasonable, that between the interfering acts of an equol authority, that which was the last indication of its will, should have the preference. But in regard to the interfering acts of a superior and subordinate authority … the nature and reason of the thing indicate the converse of that rule…. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority.Google Scholar

The Federalist No. 78, at 526 (A. Hamilton) (J. Cooke, ed. 1961).Google Scholar

80 See U.S. Const. art. VI 8 2 (congressional enactments prevail over state legislation). The subordination of the American colonial legislatures to the English Parliament also is illustrative of the prior act of a superior authority being preferred to the subsequent act of an inferior rule-making body. See Cappelletti, Judicial Review at 39–40 (cited in note 67).Google Scholar

81 In some legal systems, certain legislative enactments are regarded as inferior to “ordinary” legislation, although both have been promulgated by the same body. In France, for example, an acre reglementoire illegal must be disregarded by the courts if it is in conflict with an exception d'illegalite. See Cappelletti, Judicial Review at 53 n.22 (cited in note 67).Google Scholar

82 In some legal systems, certain legislative enactments are regarded as superior to “ordinary” legislation, although both have been promulgated by the same body. In Israel, for example, subsequent “ordinary” legislation passed by the Knesset will not prevail over earlier enacted “Basic Law.” See Bergman v. Minister of Finance, 23 P.D. 693(I) (1969). This case is thoroughly dissected in Nimmer, , 70 Colum. L. Rev. (cited in note 2).Google Scholar

83 Eliahu Likhovski, Israel's Parliament 94 (Oxford: Clarendon Press, 1971). Cf. Bowsher V. Synar, 106 S. Ct. 3181, 3192–93 (1986) (nullifying portion of Balanced Budget and Emergency Deficit Control Act of 1985, which entrusted Comptroller General with executive powers, because of act's constitutional conflict with 1921 act authorizing Congress to remove the Comptroller General).Google Scholar

84 The choice between the two modes of ratification lies within the sole discretion of Congress. United States v. Sprague, 282 U.S. 716, 730 (1931). In view of the fact that the state legislatures were bypassed when the Constitution was ratified, it is noteworthy that they provide the primary vehicle for ratification of amendments. (Only the twenty-first amendment ratification process relied on state conventions.) Indeed, as the California Supreme Court has recently reminded us, “the framers of the Constitution chose to give the voters no direct role in the amending process.” AFL-CIO v. March Fong Eu, 206 Cal. Rptr. 89 (Cal. 1984) (balanced budget voter initiative cannot bind state legislature on decision whether to apply to Congress for a constitutional convention).Google Scholar

85 Del. Const. art. XVI, § 1. Many other nations with constitutions also permit legislative amendment. Some require special majorities, some only ordinary majorities, and still others require passage by successive legislatures separated by general elections. For citations to some of these constitutions, see the authorities collected in Nimmer, , 70 Colum. L. Rev. at 1253 n. 153 (cited in note 2).Google Scholar

86 Madison, Marbury V., 5 U.S. (1 Cranch) 137, 177 (1803). Cf. Morgan, Katzenbach V., 384 U.S. 641 (1966) (Congress enjoys broad power to define the content of fourteenth amendment rights). Although Marshall's opinion in Murbury expressly states only that the legislature may not by “ordinary act” or “ordinary means” alter the Constitution's commands, it is evident that he did not contemplate the possibility that supermajority legislative action could result in amendments. The use of “ordinary” is most reasonably read as distinguishing the congressional role in the article V process of proposing amendments and providing for the mode of ratification. For an original and provocative view that Congress can, by extraordinary “higher lawmaking,” structurally amend the Constitution, see Ackerman, , 93 Yale L.J. at 1057–70 (cited in note 70).Google Scholar

87 As Paul Kahn recently pointed out in his excellent critique of the Gramm-Rudman Act, the fact that Congress cannot violate the explicit terms of the Constitution does not alone tell us whether Congress has the authority to otherwise limit the character of its own rule-making authority in ways the Constitution does not explicitly address. Kahn, , 13 Hastings Const. L.Q. at 194 (cited in note 2).Google Scholar

88 Tribe testified on the issue of whether the 95th Congress enjoyed the power to extend the seven-year ratification period for the Equal Rights Amendment set by the 92d Congress. As the quotations in the text suggest, Tribe concluded that the later Congress remained free to alter the earlier command by simple majority. Extending the Ratification Period for the Proposed Equal Rights Amendment: Hearings on H.R.J. Res. 638 Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 95th Cong., 1st Sess. 38, 51 (1977) (statement and testimony of Laurence H. Tribe, Professor of Law, Harvard University).Google Scholar

89 Id. at 40 n.2.Google Scholar

90 James Madison divided the acts of a political society into three classes: (1) the fundamental constitution of the government; (2) laws irrevocable at the will of the legislature; and (3) laws involving no such irrevocable quality. See Letter to Thomas Jefferson, February 4, 1790, in Marvin Meyers, ed., The Mind of the Founder: Sources of the Political Thought of James Madison 176 (Hanover, N.H.: University Press of New England, 1981). Naturally, because of the superior status of the Constitution, article V would stand in the way of any legislative entrenchment requiring a process more restrictive than article V to disentrench.Google Scholar

91 See Black, , 82 Yale L.J. at 192 (cited in note 2).Google Scholar

92 McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819).Google Scholar

93 Id. at 421.Google Scholar

94 462 U.S. 919 (1983).Google Scholar

95 U.S. Const. art. I, § 7, cl. 2.Google Scholar

96 The term “simple majority” is used herein to refer to a majority of the quorum present at the time a vote is taken. It is thus distinguishable from an “absolute majority” requirement, where passage requires a majority of a11 the elected members of the voting body. In the United States Senate, under the quorum rules of article I, § 5, cl. 1, a simple majority could range from as few as 26 members to as many as 51. An absolute majority would be constant at 51. In the House of Representatives, a simple majority will range from 110 to 218 members, while an absolute majority will number 218.Google Scholar

97 Just as the President's veto power must be protected, see I.N.S. v. Chadha, 462 U.S. 919, 94648 (1983), the value of the President's signature ought not be diluted.Google Scholar

98 See U.S. Const. art. I, § 3, cl. 6 (two-thirds Senate vote needed for conviction in impeachment trials); art. I, § 5, cl. 2 (two-thirds vote of applicable House needed to expel a member); art. I, § 7, cl. 2 (two-thirds vote of both Houses needed to overrule a Presidential veto); art. II, § 2, cl. 2 (two-thirds Senate vote needed to ratify a treaty); art. V (two-thirds vote of both Houses needed to propose constitutional amendments); amend. XIV, § 3 (two-thirds vote of both Houses needed to remove disability for office of any prior office holder who engaged in insurrection against the United States government); amend. XXV, § 4 (two-thirds vote of both Houses needed for determination that President is unable to discharge powers and duties of office). See also amend. XII (absolute majority required for selection of President, in House, and Vice President, in Senate, when Electors fail to have majority). Proposals offered during the Constitutional Convention to subject legislation relating to commerce (both interstate and foreign) and navigation to a two-thirds vote requirement were handily defeated. See Jonathan Elliot, 5 Debates on the Adoption of the Federal Constitution 489–92, 552 (Philadelphia: J. B. Lippincott, 1941) (“Elliot, Debates”). Madison's efforts to require two-thirds for a congressional quorum proved similarly unsuccessful. See Arthur Taylor Prescott, Drafting the Federal Constitution 426 (Baton Rouge: Louisiana State University Press, 1941).Google Scholar

99 U.S. v. Ballin, 144 U.S. 1, 6 (1892).Google Scholar

100 The Federalist No. 22, at 140–41 (A. Hamilton) (J. Cooke ed. 1961). No doubt the concerns of Hamilton and the other delegates gathered in Philadelphia were a reaction to the legislative impotence brought about by the two-thirds vote requirements contained in articles IX (assent of nine states needed for most major legislation) and X (nine states needed to authorize congressional action during recesses) of the Articles of Confederation. See The Federalist No. 22, at 140. See also Elliot, Debates at 489 (remarks of Roger Sherman) and 490 (remarks of James Wilson) (cited in note 98).Google Scholar

101 The Federalist No. 58, at 396–97 (J. Madison) (J. Cooke ed. 1961).Google Scholar

102 I.N.S. v. Chadha, 462 U.S. 919, 958 n.23 (1983).Google Scholar

103 Id. at 959.Google Scholar

104 Id. at 987 (White, J. dissenting).Google Scholar

105 It turns out that, in the Senate at least, the premise is fallacious. See part ID1.Google Scholar

106 See Restatement (Second) of Agency (A.L.I.) (St. Paul: American Law Institute Publishers, 1957) § 105 (authority conferred for a specified time terminates at the expiration of that period) and § 126 (apparent authority conditioned as to time terminates when the time has elapsed).Google Scholar

107 See notes 47–59 and accompanying text.Google Scholar

108 Dicey, Law of the Constitution at 48 (cited in note 13). As to what is meant by “Parliament” in this context, see note 50.Google Scholar

109 The Federalist No. 39, at 251 (Madison, J.) (Cooke, J. ed. 1961). See also No. 53, at 361–62 (J. Madison) (pointing out dangers of legislatures continuing themselves in office beyond their terms and the need to unalterably fix the time of service). Cf. Easterbrook, Frank H., Statutes' Domains, 50 U. Chi. L. Rev. 533, 548 (1983) (legislature's power limited by a number of checks, the foremost of which is time).Google Scholar

110 See The Federalist No. 62, at 418 (J. Madison) (those who administer government often forget their obligations to their constituents).Google Scholar

111 See The Federalist No. 53, at 361 (J. Madison) (need for periodic intervals at which to “[fix] the national sentiment”).Google Scholar

112 See, e.g., The Federalist Nos. 39, 52, 53, 59, 61, 62, 63, 64.Google Scholar

113 The Federalist No. 52, at 355 (I. Madison?). Indeed, Madison felt compelled to respond, at considerable length, that a two-year term was not unduly long, see The Federalist No. 53 (J. Madison), to those who believed that “where annual elections end, tyranny begins,”id. at 359.Google Scholar

114 The Federalist Nos. 62 and 63 (J. Madison?).Google Scholar

115 It is not pretended that this was the motivating force behind the concept of overlapping terms. But see Elliot, Debates at 245 (remarks of lames Wilson) (cited in note 98) (staggered terms will guarantee representatives acting under the influence of different views and different impulses). The Senate was not a popularly elected body, and accountability to the electorate was not a topic of much discussion during its structuring. Rather, the Framers wished to prevent a temporary combination of states from conspiring in their state legislatures to “annul the existence [or] impair the activity of [Congress]” and believed that such conspiracies would be unlikely to last over a six-year period unless there were defects in the government that would properly justify its termination. The Federalist No. 59, at 401 (A. Hamilton) (J. Cooke ed. 1961). It is noteworthy, however, that when the seventeenth amendment was passed, providing for direct election of senators, the staggered-term concept was retained. Although no legislative history reveals what prompted this decision, it seems plausible that switching to uniform six-year terms was viewed as too much of a concession to stability at the cost of petrification.Google Scholar

116 Naturally, the laws they promulgate will continue in effect beyond the end of their term, but this is due to the acquiescence of their successors and not the extratemporal power of the enacting legislature. See notes 21–24 and accompanying text. See also Letter of James Madison, in Meyers, Mind of the Founder at 178 (cited in note 90) (assent inferred from lack of an express revocation).Google Scholar

117 In addition to the obvious blockage of accountability created by precluding disenchanted voters from bringing about legislative change by substituting new legislators, entrenchment skews accountability in a more subtle manner. As Paul Kahn notes in his analysis of the Gramm-Rudman Act, legislation that operates in the future may displace accountability. When the present legislature brings about serious consequences that operate mainly in the future, it avoids present responsibility. Furthermore, the future legislature can assign responsibility to the actions of its predecessors when the electorate begins to feel the pinch. See Kahn, , 13 Hastings Const. L.Q. at 209 (cited in note 2).Google Scholar

118 See generally Guido Calabresi, A Common Law for the Age of Statutes (Cambridge: Harvard University Press, 1982).Google Scholar

119 See also U.S. Const. amend. XX (setting January 3 as date on which term of outgoing members of Congress concludes). This theory, of course, is not literally applicable to state legislatures. The constitution of the individual state defines the term of the office of the people's representatives. Insofar, however, as the United States Constitution guarantees to each State a “Republican Form of Government” (art. IV, § 4) and the notion of a temporal mandate lies at the core of republicanism, see The Federalist No. 39, at 251 (Madison, J.) (Cooke, J. ed. 1961), the state cannot use its constitution to circumvent these principles. Whether the issue would be justiciable is a quite different question. Compare Borden, Luther V., 48 U.S. (7 How.) 1 (1849) (treating guaranty clause as posing a nonjusticiable political question), with Carr, Baker V., 396 U.S. 186 (1962) (constitutional challenge to state's apportionment of legislative districts found justiciable under equal protection clause).Google Scholar

120 I am prepared to go even further and suggest that S–1 would be voidable (both in its three-fifths clause and its requirement of explicitness) and not merely repealable. In a sense this is merely another way of saying that I believe the issue to be justiciable. See generally notes 151–68 and accompanying text. A repealable statute may only be superseded by legislative deed; a voidable one may be stricken by judicial action.Google Scholar

121 I am not implying here that, under common commercial practices, an agent with a term of limited duration may not enter into agreements that have consequences—or even require performance— after that term has run. Purchasing agents often commit principals to long-term installment payments that may outlast the agent's period of authority. Corporate boards of directors regularly enter into arrangements that bind future boards. The need for stability in commercial transactions demands this continuity. The reason that the agent of limited duration enjoys this power is, however, because the principal intends it. Should the principal choose instead to limit the agent to commitments only to the extent that they were to be completely fulfilled during the period of the agent's authority, there would be little doubt that the principal could so prescribe. The point is simply this: A principal has total reign to set the limits of an agent's authority. Article I should be read as the people's command that its representatives can extend neither their terms nor their binding influence beyond the time periods set therein. The Framers seem to have concluded that the risk of instability and uncertainty did not warrant giving Congress authority legislatively to “fix the state of things so that future Congresses couldn't change it.” Statement of Laurence H. Tribe at 51 (cited in note 88). This judgment contrasts noticeably with the deference to stability needs that is reflected in the entrenchment of the Constitution. See notes 42–45 and accompanying text. The seemingly incongruous approach, however, manifests no more than the Framers' beliefs that, while the people can bind their elected representatives (through constitutional command), the representatives may not bind the people (by limiting the impact of shifting majorities demonstrated in periodic elections).Google Scholar

122 Lon Fuller has illustrated this point hypothetically in speculating on the binding quality of article V's command that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Imagine, says Fuller, that a radical reduction in the population of certain of the states occurred—perhaps as a result of some natural disaster—so that several states had no more than one thousand persons each. In such a situation, Fuller concludes, we might respond to the danger posed to our political system by any of several legal maneuvers designed to circumvent article V. We might reduce the role of the Senate, we might abolish the bicameral structure, or we might simply rename the body (e.g., “The Council of Elders”) and then reallocate representation in it. Fuller, The Morality of Law at 114 (cited in note 2).Google Scholar

An end run that has received a surprising amount of attention from foreign commentators is one that is available when the entrenching legislature has failed to “double entrench.” Suppose, for example, Legislature A were to pass a bill (§ 1) requiring a 75% majority in order to repeal a series of “fundamental” laws (F.1–F.6). If § 1 itself was not entrenched, could not a bare majority of Legislature B that wished to amend F.1–F.6 give itself the power to do so by repealing § 1 by a simple majority? See Scott, New Zealand Constitution at 7 (cited in note 61). The Israeli Knesset has, in fact, anticipated such a maneuver by “doubly entrenching.” Thus, § 4 of the legislatively promulgated Fundamental Laws (dealing with the structure of the Parliament) entrenches the electoral laws by preventing their modification except by absolute majority, and § 46 provides that § 4 may not be amended or repealed except by a similar vote. See Likhovski, Israel's Parliament at 57, 94–95 (cited in note 83). Query: What entrenches § 46? Can § 46 entrench itself? If not, the game seems endless.Google Scholar

123 But see Newton v. Comm'rs of Mahoning County, 100 U.S. 548 (1879) (attempt by Ohio legislature to permanently establish the county seat of Mahoning County at Canfield). See also Sinclair v. United States, 279 U.S. 263, 296 (1928) (67th Congress authorized committee investigation to continue until the end of the 68th Congress).Google Scholar

124 Gerald Gunther, Constitutional Law 361 (11th ed. Mineola, N.Y.: Foundation Press, 1985).Google Scholar

125 See, e.g., The War Powers Resolution Act of 1973, Pub. L. 93–148, 87 Stat. 555 (1973) (restraining executive deployment of military forces without legislative authorization); Congressional Budget and Impounding Control Act of 1974, Pub. L. No. 93–344, 88 Stat. 297 (1974) (requiring legislative approval for executive termination or reduction of programs for which funds have been authorized).Google Scholar

126 U.S. Const. art. 1, § 5, cl. 2.Google Scholar

127 Limitation of Debate in the Congress of the United States 13, Congressional Research Service, Library of Congress, 96th Cong., 1st Sess. (Comm. Print 1979) (hereinafter “Limitation of Debate”).Google Scholar

128 Standing Rules of the United States Senate, Rule XXII(2). Although the Senate uses Roman numerals to denote its rules, I have used Arabic numerals in the text to avoid confusion between Rules XXII(2) and XXXII(2), both of which are discussed at some length below.Google Scholar

129 In its original form, the Rule required an affirmative vote of two-thirds of those senators present and voting. Amendments were made in 1949 (two-thirds of the elected members), 1959 (two-thirds of those present and voting), and 1975 (three-fifths of the elected members). See generally Limitation of Debate (cited in note 127). In contrast, since 1811 the House of Representatives has permitted the cutting off of debate by a simple majority of those voting. Rules of the House of Representatives, Rule XVII.Google Scholar

130 From 1872, when the Vice President ruled that the presiding officer had no power to require a senator to surrender the floor because of irrelevancy, until the enactment of Rule 22(2) in 1917, there was no effective way to terminate debate. See Note, Cloture, , Continuing Rules and the Constitution, 48 Minn. L. Rev. 913, 914 n.4 (1964).Google Scholar

131 By this I mean that although a majority of those present and voting desired to cut off debate and bring substantive measures to a vote, they were unsuccessful because the requisite supermajority set forth in the then prevailing version of Rule 22(2) (see note 129) could not be mustered. A listing of all the cloture votes from 1917 until October 14, 1978, are collected in Limitation of Debate at 59–65 (cited in note 127). The calculations, however, are mine.Google Scholar

132 This, in fact, represents an improvement over the 1949 version of Rule 22(2), which did not permit the invocation of cloture at all on motions to change any of the standing rules. See Limitation of Debate at 95–96. Thus debate on motions to modify the rules could not be ended except by unanimous agreement. It wasn't until ten years later that Rule 22(2) was amended to allow cloture votes on motions to alter the Standing Rules. Id. at 21.Google Scholar

133 Emphasis supplied. Cf. Rule XXVII of the House of Representatives (two-thirds vote required for change or suspension of House rule). Notwithstanding this provision, it appears that each newly elected House of Representatives is Seen as free to adopt new rules unencumbered by those promulgated by its predecessors. See Jefferson's Manual 8 388, H.R. Doc. No. 398, 96th Cong., 2d Sess. (1981).Google Scholar

134 Limitation of Debate at 19–20. Cf. McGrain v. Daugherty, 273 U.S. 135 (1927) (rejecting argument that case involving warrant issued by Senate committee becomes moot after expiration of Senate term). Although McGrain called the Senate “a continuing body,” the decision was premised on the possibility that the committee could be continued or revived by the succeeding Senate. Id. at 182.Google Scholar

135 This and other arguments in support of the “continuing body” theory are explored and discussed in Note, 48 Minn. L. Rev. at 921–26 (cited in note 130). The thesis is obviously not applicable to the House of Representatives, whose entire membership is subject to change at each biennial election. See Gojack v. United States, 384 US. 702, 707 n.4 (1966) (House of Representatives is not a continuing body).Google Scholar

136 See notes 114 & 115 and accompanying text.Google Scholar

137 The Federalist No. 62, at 418 (J. Madison?) (J. Cooke ed. 1961). See also Elliot, Debates at 242 (remarks of lames Madison) (cited in note 98). Of course, direct electoral accountability was not the rationale behind the establishment of the Senate. That body was to be answerable to the state legislatures, not to the voters. See note 115. Nonetheless, the Convention's rejection of Alexander Hamilton's proposed life terms for senators (see Elliot at 203, 205) reflects many of the delegates' views that legislators ought to be forced periodically to return to their constituents for a renewal of their mandates. Compare the remarks of Roger Sherman, Elliot at 243 (frequent elections are necessary to preserve the good behavior of rulers), with those of Hamilton, Elliot at 244 (expressing his reservations about the wisdom of representative government). Staggered terms were designed to guard against petrification at the same time that they ensured some degree of continuity. See Elliot at 245 (remarks of James Wilson). The standard-bearers of the “continuing body” thesis seem to have overlooked this.Google Scholar

138 Cf. United States v. Ballin, 144 US. 1, 5 (1892) (because each House is empowered to determine its own rules, it is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time).Google Scholar

139 Everything about article I, Q 5, leads to the conclusion that the phrase “Each House” was meant simply to preserve the rights of the House of Representatives and the Senate to adopt different sets of parliamentary rules. The two bodies served different constituents, were of vastly different size, and clearly required different methods of operation. This reading is bolstered by an examination of an earlier draft of the Constitution that contains two separate provisions governing internal rulemaking, one of which refers to “The House” and the other to “The Senate.” See 2 The Records of the Federal Convention of 1787, ed. Max Farrand, 140, 142 (New Haven: Yale University Press, 1934). Furthermore, § 5′s concurrent use of the phrases “either House” and “[n]either House” leaves little doubt that the Framers were thinking about bicameralism and not temporalism.Google Scholar

140 See 99 Cong. Rec. 220 (1953) (remarks of Senator Humphrey). Although the argument was made in 1917 by Senator Walsh (see, e.g., 55 Cong. Rec. 9–11 (1917). his resolution was withdrawn prior to a vote. The contention that article I, § 5, cl. 2, means that no prior body can prescribe rules of binding force has had its share of supporters in the House of Representatives as well. See, e.g., Precedents of the House of Representatives (I, § 713, at 922; V, § 6002, at 529). See also Jefferson's Manual at § 388 (cited in note 133) (neither Congress nor any House may interfere with the constitutional right of a future House to make its own rules).Google Scholar

141 See Limitation of Debate at 19 (cited in note 127).Google Scholar

142 Id. at 20. Nixon reaffirmed his 1957 “advisory opinion” in January 1961 by offering his view that a new Congress could not be inhibited by the cloture requirements of Rule 22(2). Id. at 21. (The Senate, by this time, had abandoned the absolute bar to limitation of debate on proposals to change the rules in favor of a two-thirds vote requirement).Google Scholar

143 Id. at 22, 23, 25, 26.Google Scholar

144 One cannot be certain, of course, that all the senators desirous of putting the issue to a vote were also in favor of amending the rule. But since most of these battles concerned the volatile issue of civil rights, it is unlikely that many anti-amendment senators broke ranks. After all, if cloture were invoked, a simple majority would suffice for amendment.Google Scholar

145 The motion was objected to by Senator Dirksen's point of order asserting Rule 32(2)′s constitutionality. The Senate then sustained the point of order by a 59–37 vote. Id. at 23. In 1969, Senator Church tried to reassert Senator McGovern's position and fared only slightly better. He convinced Vice President Humphrey to rule in his favor, only to see the Senate reverse the Chair's decision 53–45. Id. at 26. An attempt by Senator Javits to revive the issue in 1971 was tabled. Id. at 26.Google Scholar

146 Id. at 26–27.Google Scholar

147 Telephone interview with Tony Harvey, Senior Analyst, Committee on Rules and Administration, United States Senate, June 28, 1985. Proposals to amend the Rule 22(2) cloture provisions, however, are seen as more likely. Id. Google Scholar

148 See note 139.Google Scholar

149 See, e.g., Restatement (Second) of Agency at 55 83 & 84 (cited in note 106) (one, on whose account an unauthorized act has been done, may ratify if such act could have been authorized by the principal when done).Google Scholar

150 See notes 143–44 and accompanying text.Google Scholar

151 See United States v. Richardson, 418 US. 166 (1974) (citizens lack standing to challenge the failure of Congress to comply with the statement and account clause); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) (citizens lack standing to claim that incompatibility clause renders members of Congress ineligible to hold Armed Forces Reserve commissions).Google Scholar

152 See Laurence H. Tribe, American Constitutional Law 92 (Mineola, N.Y.: Foundation Press, 1978) (courts examining issues of citizen standing should inquire whether injuries, however widely inflicted, impede efficacy of majoritarian processes). Cf. Baker v. Carr, 369 U.S. 186, 2W8 (1962) (voters asserting a direct interest in maintaining the effectiveness of their votes have standing).Google Scholar

153 In Goldwater v. Carter, 444 U.S. 996 (1979) (mem), the Court vacated an en banc determination of the United States Court of Appeals for the D.C. Circuit that upheld the standing of several senators suing to prevent termination of a treaty with the Republic of China (see 617 F.2d 697, 701–3). The Court, however, chose to rest its decision on the political question and ripeness doctrines. Not one of the four opinions filed by the Justices so much as mentioned the issue of standing. This has led some lower courts to conclude that the standing concept ought no longer to serve as a vehicle for addressing separation of powers concerns raised by congressional-plaintiff suits. See, e.g., Federal, Riegle V. Open Market Committee, 656 F.2d 873. 880 (D.C. Cir. 1981). For an earlier refusal by the Supreme Court to tackle the issue of congressional standing, see EPA v. Mink, 410 US. 73, 75 n.2 (1973) (reaching merits on suit brought by 33 members of Congress under the Freedom of Information Act, because the issue of standing was not raised before it). For a more recent lost opportunity for guidance on this issue, see Barnes, Burke V., 107 S. Ct. 734 (1987) (suit by members of Congress challenging presidential power to exercise pocket veto dismissed on grounds of mootness).Google Scholar

154 See, e.g., Sampson, Kennedy V., 511 F.2d 430 (D.C. Cir. 1974) (senator granted standing to challenge allegedly unconstitutional pocket veto); Jagt, Vander v. O'Neill, , 699 F.2d 1166 (D.C. Cir. 1983) (Republican congressman granted standing to challenge Democratic majority's committee seat allocation). But see Carter, McClure V., 513 F. Supp. 265 (Idaho, D.), aff'd mem. sub. nom. McClure, v. Reagan, , 454 US. 1025 (1981) (senator denied standing to challenge appointment to bench as violation of ineligibility clause); Schlesinger, Harrington V., 528 F.2d 455 (4th Cir. 1975) (congressman denied standing to enjoin executive from spending money in violation of legislative restriction).Google Scholar

155 See, e.g., McGowan, Carl, Congressmen in Court: The New Plaintiffs, 15 Ga. L. Rev. 241 (1981); Note, Congressional Access to the Federal Courts, 90 Ham. L. Rev. 1632 (1977); Note, Should Congress Defend Its Own Interest Before the Courts? 33 Stan. L. Rev. 715 (1981); Note, The Justiciability of Congressional-Plaintiff Suits, 82 Colum. L. Rev. 526 (1982). These articles discuss the political question, ripeness, and equitable discretion themes, as well as the standing issues raised by congressionally instituted litigation.Google Scholar

156 A divided panel of the D.C. Circuit has gone one step further and conferred standing where the legislator's influence has been diminished rather than nullified. O'Neill, Vander Jagt V., 699 F.2d 1166, 1168 (D.C. Cir. 1983). The Vander Jagt majority also apparently rejected, at least insofar as it related to the issue of standing, Chief Judge Skelly Wright's suggestion in Carter, Goldwater V., 617 F.2d 697 (D.C. Cir. 1979) (en banc) that “[w]here Congress itself, and not the Executive, renders an individual legislator's vote ineffective, the courts have no role.” 617 F.2d at 712 (Wright, C.J., concurring in result). Judge Bork's separate concurrence in Vander Jagt ironically warns that the majority's expansive view of congressional standing might ultimately require the court to rule on filibusters, “since those who filibuster may have disproportionate influence over legislative outcomes.” 699 F.2d at 1181. One person's nightmare is another person's fancy.Google Scholar

157 See generally the articles cited in note 155.Google Scholar

158 Carr, Baker V., 369 U.S. 186, 217 (1962).Google Scholar

159 Metzenbaum v. F.E.R.C., 675 F.2d 1282 (D.C. Cir. 1982). The 1977 legislation barred either House from considering a waiver of any Alaskan pipeline regulations for a period of 60 days following consideration of any other resolution proposing a similar waiver. The plaintiffs' claim was that the House had failed to wait the requisite waiting period when it authorized such a waiver in 1981.Google Scholar

160 As Metzenbaum recognized, to decide otherwise would enable a minority to frustrate the implementation of the majority will “through litigation based on purported violations of ‘housekeeping’ rules.”Id. at 1287. Judicial intervention may be warranted, however, where rights of persons other than members of Congress are jeopardized by congressional failure to follow its own procedures. See Yellin v. U.S., 374 U.S. 109, 114 (1963) and the cases cited therein.Google Scholar

161 Indeed, the very piece of legislation that mandates the parliamentary restrictions involved in Metzenbaum was adopted “with full recognition of the constitutional right of either House to change the rules.” 15 U.S.C. § 719f (d) (1). See also Metzenbaum v. F.E.R.C., 675 F.2d at 1288 (House of Representatives rule “binding upon it only by its own choice”).Google Scholar

162 See United States v. Smith, 286 U.S. 633 (1932) (Congress may not by its rules ignore constitutional restraints or violate fundamental rights). Accord United States v. Ballin, 144 US. 1, 5 (1892). In O'Neill, Vander Jagt V., 699 F.2d 1166, 1173 (D.C. Cir. 1983), the D.C. Circuit relied on the foregoing cases in signaling its retreat from the Metzenbaum position, concluding that article I, § 5, cl. 2, does not alter the judiciary's responsibility to say what rules Congress cannot adopt because of constitutional infirmity. Cf. Gunther, Gerald, Judicial Hegemony and Legislative Autonomy: The Nixon Case and the Impeachment Process, 22 U.C.L.A. L. Rev. 30, 34 (1974) (every constitutional issue does not require final adjudication on the merits by the judiciary).Google Scholar

163 In McCormack, Powell V., 395 U.S. 486 (1969), the Supreme Court held that article I, § 5, cl. 1, authorizing “Each House to be the Judge of the … Qualifications of its own Members,” was, at most, a textually demonstrable commitment to Congress to judge only the qualifications expressly set forth in the Constitution: age, citizenship, and residence. Id. at 548.Google Scholar

164 O'Neill, Vander Jagt V., 699 F.2d 1166, 1181 (D.C. Cir., 1983) (Bork, J., concurring).Google Scholar

165 462 U.S. 919, 940–43 (1983).Google Scholar

166 Cf. McCormack, Powell V., 395 U.S. 486, 547–48 (1969) (political question doctrine inappropriate where judicial intervention is necessary to protect the fundamental principle of representative democracy that the people may choose whom they please to govern them).Google Scholar

167 There are, of course, strands of the political question doctrine other than the classic “textually committed” one. See Carr, Baker V., 369 US. 186, 217 (1962). Some are functional in nature, others are prudential. The functional concerns are clearly inapplicable here. Judicially manageable standards for analysis are available, and no policy determinations beyond judicial competence are called for. Courts need only decide the binding effect of Rule 32(2). Neither is the fashioning of adequate remedies problematical. The prudential concerns and their successor, the doctrine of “circumscribed equitable discretion,” see Federal, Riegle V. Open Market Committee, 656 F.2d 873, 881 (D.C. Cir. 1981), seem ultimately to be subjective judgments that vary with time, context, and court. These prudential strands offer little to commend them, see Wechsler, Herbert, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 9 (1959), and still less to draw on for future guidance, see Gunther, Gerald, The Subtle Vices of the “Passive Virtues”—A Comment on Principle and Expediency in Judicial Review, 64 Colum. L. Rev. 1, 20–25 (1964).Google Scholar

168 Two other obstacles to judicial adjudication deserve at least a passing mention here. Justice Powell's critical fifth vote in Goldwater V. Carter, 444 U.S. 996 (1979) (mem.), relying on the ripeness doctrine, counsels against litigating prematurely. At the very least, this means that a majority sentiment must be shown to exist for a rule change. Obviously, the issue will not need to be litigated if a majority also believes that Rule 32(2) is unconstitutional. Presumably in such a setting, the two-thirds cloture requirement for rule changes could be simply ignored and a new rule enacted. But it appears to me to satisfy the ripeness requirement if a majority favors voting on a rule change while a different majority continues to believe that, simply because of the continuing nature of Senate rules, anything short of a two-thirds vote is inadequate to call the question. In such a setting, the normal political process will be unable to resolve the conflict.Google Scholar

Finally, the speech or debate clause (US. Const. art. 1, § 6, cl. 1) cannot be overlooked. Because legislative employees acting under House orders participated in the challenged action in McCormick, Powell V., 395 U.S. 486 (1969), the Court was able to bypass the question of whether Congressman Powell would have been entitled to relief if the members of Congress had acted alone in excluding him and no other remedy was available. Id. at 506 n.26. Any suit to enjoin Rule 32(2) would potentially call senators to “question” for conduct concededly within the sphere of legitimate legislative activity. Accordingly, the selection of defendants would have to be done with care.Google Scholar

169 Congress may, if it chooses, submit proposed amendments to popular conventions rather than state legislatures for ratification. The mode of ratification selected, however, is left entirely to Congress by the terms of article V. See United States v. Sprague, 282 U.S. 716 (1931) (Congress is delegated agent of the people in the choice of ratification method). Only the twenty-first amendment (repeal of prohibition) was ratified by popular conventions.Google Scholar

170 Compare Dellinger, , 97 Harv. L. Rev. 386 (cited in note 3) (urging nondeferential judicial review of constitutional amendment process questions), with Tribe, Laurence H., A Constitution We Are Amending: In Defense of a Restrained Judicial Role, 97 Harv. L. Rev. 433 (1983).Google Scholar

171 Dellinger, , 97 Harv. L. Rev. at 392–96.Google Scholar

172 Among other things, the Ervin bill provided rules regarding the sufficiency of the state applications, the selection of the convention's delegates, and the procedures for amendatory action during the convention itself. See generally Note, Proposed Legislation on the Convention Method of Amending the United States Constitution, 85 Haw. L. Rev. 1612 (1972).Google Scholar

173 Black, , 82 Yale L.J. at 191 (cited in note 2). Accord Note, 85 Harv. L. Rev. at 1616 (cited in note 172).Google Scholar

174 Dellinger, , 97 Harv. L. Rev. at 387.Google Scholar

175 Testimony of Tribe, Laurence H. at 45 (cited in note 88). But see Freeman, Idaho V., 529 F. Supp. 1107, 1150–54 (Idaho, D. 1981). vacated as moot sub nom. National Org. for Women v. Idaho, 459 U.S. 809 (1982) (congressional extension of time period for ratification of ERA an improper exercise of Congress's authority).Google Scholar

176 See U.S. Const., amends. XVIII (§ 3); XX (§ 6); XXI (§ 3); XXII (§ 2). That Congress enjoys the power to place such limitations in the text appears well established. See Gloss, Dillon V., 256 U.S. 368, 376 (1921).Google Scholar

177 As Professor Dellinger put it, “states are asked to ratify only amendments, not the contents of joint congressional resolutions.”Dellinger, , 97 Harv. L. Rev. at 409 n.120.Google Scholar

178 Along a similar vein, it would follow that despite the fact that the original resolution had been promulgated with the support of more than two-thirds of the members of each House, only a simple majority would be required to modify the ratification time limit. Proposed amendments (and any time limitations for ratification included in the text) require a supermajority; the resolutions that accompany them do not and neither, it would seem, do alterations of such resolutions. See Statement of Laurence H. Tribe at 46 (cited in note 88).Google Scholar

179 Dellinger, , 97 Ham. L. Rev. at 406–11.Google Scholar

180 For a listing of the states and the dates of ratification and rescission, see Freeman, Idaho V., 529 F. Supp. 1107, 1112 n.2 (Idaho, D. 1981).Google Scholar

181 Testimony of Laurence H. Tribe at 55 (cited in note 88).Google Scholar

182 I have assumed for the purposes of this discussion that the question of whether rescissions should be recognized is a matter properly to be determined by Congress. It is, however, the very outcome of this hypothetical that leads me to share Professor Dellinger's view that ratification disputes are better left to the judiciary. See Dellinger, Walter, Constitutional Politics: A Rejoinder, 97 Harv. L. Rev. 446, 450 11.25 (1983).Google Scholar

183 Testimony of Laurence H. Tribe at 45, 56 (cited in note 88). See also Tribe, , 97 Harv. L. Rev. at 435 n.6 (cited in note 170).Google Scholar

184 See Smith, Hawke V., 253 US. 221, 226–27 (1920) (state legislatures voice the will of the people when Congress selects them as mode of ratification); Gloss, Dillon V., 256 U.S. 368, 374 (1921) (ratification by state legislatures shall be taken as decisive expression of the people's will).Google Scholar

185 In this setting, the state legislatures derive their authority not from the states' constitutive documents but from article V itself. See Smith, Hawke V., 253 U.S. 221, 230 (1920) (state legislatures, acting pursuant to their authority under article V, are performing a federal function, not a state one).Google Scholar

186 Hart, The Concept of Law at 147 (cited in note 15).Google Scholar

187 The answers depend ultimately on how we resolve two more fundamental questions about the amendment process:.Google Scholar

  1. 1

    1 Is Congress's role in the process completed when it submits the proposal to the states, or is it a continuing one that requires, among other things, “promulgation” of the amendment when the necessary ratifications have occurred? See Dellinger, 97 Harv. L. Rev. at 389–405 (condemning the latter model as misguided). If Congress is in continuous control of the process from the moment an amendment is first proposed through the point at which it is finally promulgated, it follows logically that it can establish time limits for ratification. It is a small jump from deciding that Congress may subsequently extend the period for ratification to concluding that it may contract it. See Testimony of Laurence H. Tribe at 42 (cited in note 88) (Congress has power to change ratification time limit “up or down”). The ha1 leap, from the power to contract the time period to the right to withdraw a proposed amendment, seems to this writer to be a quantitative rather than a qualitative one.

  2. 2

    2 Is a “contemporaneous consensus” of opinion supporting an amendment required at the time of enactment? This question, of course, has always been at the heart of the rescission debate. See Dellinger, 97 Harv. L. Rev. at 422. If one asserts the need for such a contemporary consensus, might one not include two-thirds of both Houses of Congress as well as three-fourths of the state ratifying bodies? If Congress changed its collective mind prior to the 38th state ratification, consensus would not be contemperaneously present. The answer to the question of Congress's withdrawal power is, in this way, intimately intertwined with that of the state legislatures' freedom to rescind.

188 431 U.S. 1 (1977). The facts stated here come from Justice Blackmun's majority opinion and Justice Brennan's dissent.Google Scholar

189 Although I deal here with state legislatures rather than Congress, the applicable principles are similar. To be sure, the language of article I, §§ 2 and 3, relied on in my articulation of the temporal mandate theory is not technically applicable here. The limitations on the terms of office contained in the state constitutions and the guarantee of a republican form of government (U.S. Const. art. IV, § 4), which requires that these limitations exist, however, provide an equally sound basis for the application of the thesis to state legislative bodies. See note 73, 119.Google Scholar

190 431 US. at 32.Google Scholar

191 Id. at 45 (Brennan, J., dissenting).Google Scholar

192 U.S. Const. art. I, § 10, cl. 6 (“No State shall … pass any … law impairing the obligation of Contracts”). By its terms, the contract clause is a restriction on state legislatures only. Although no constitutional language explicitly protects the sanctity of contract against federal impairment, the due process clause of the fifth amendment has often been held to impose limitations on congressional power to alter contractual obligations. See, e.g., Lynch v. United States, 292 US. 571 (1934) (invalidating congressional attempt to cancel government war-risk life insurance). In recent years, however, the Court has stressed that the principles embodied in the due process clause are not coextensive with the prohibitions of the contract clause. See PBGC v. Gray, 467 U.S. 717, 733 (1984). When examining federal economic legislation that impairs contractual obligations, the Court frequently invokes a less searching inquiry than when state statutes are under review. See Nat'l R.R. Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 472 n.25 (1985).Google Scholar

193 Benjamin Fletcher Wright, The Contract Clause of the Constitution 15 (Cambridge: Harvard University Press, 1938). Furthermore, as even advocates of the expansive reading are forced to concede, the word “impairment” tends to suggest only a prohibition on the interference with private contracts. See Richard Epstein, Toward a Revitalization of the Contract Clause, 53 U. Chi. L. Rev. 705, 718–19 (1984).Google Scholar

194 Wright, The Contract Clause at 16, citing Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (2d ed. Philadelphia: J. P. Lippincott, 1861), vol. 3, at 474 (statement of Patrick Henry), vol. 3, at 477–78 (Governor Randolph's reply that the clause had been included only because of “frequent interferences of the state legislatures with private contracts”), vol. 4, at 190 (statement of James Galloway), and vol. 4, at 191 (W. R. Davie's answer that “[t]he clause refers merely to contracts between individuals”).Google Scholar

195 10 US. (6 Cranch) 87, 137–39 (1810). A more detailed analysis of the shortcomings of Marshall's resolution of this question can be found in David P. Currie, The Constitution in the Supreme Court: State and Congressional Powers, 1801–1835, 49 U. Chi. L. Rev. 887, 897–99 (1982).Google Scholar

196 17 US. (4 Wheat) 518, 644(1819).Google Scholar

197 Id. Google Scholar

198 United States Trust Co. v. New Jersey, 431 US. 1, 45 (1977) (Brennan, J., dissenting). Compare Indiana ex rel. Anderson v. Brand, 303 US. 95, 100 (1938) (if people's representatives deem it in the public interest, they may adopt a policy for contracting for a term longer than the life of the legislature).Google Scholar

199 Taney's opinion is reproduced in Charles Haar, ed., The Golden Age of American Law 348–51 (New York: George Braziller, 1965). No doubt the Jacksonian animus toward vested rights played a significant role in Taney's thinking. The background of the opinion and its influence on Taney's subsequent decision in the Charles River Bridge case is described in Morton J. Horwitz. The Transformation of American Law, 1780–1860, at 134–37 (Cambridge: Harvard University Press, 1977).Google Scholar

200 Peck, Fletcher V., 10 U.S. (6 Cranch) 87, 135 (1810) (emphasis supplied). Accord Indiana ex rel. Brand, Anderson V., 303 U.S. 95, 100 (1938) (laws are subject to repeal by a subsequent legislature, but legislative contracts, when accepted as the basis of action by individuals, may be unalterable).Google Scholar

201 Mississippi, Stone V., 101 U.S. 814, 819 (1880) (sustaining a state's revocation of a 25-year charter to operate a lottery). See also City of Simmons, El Paso V., 379 U.S. 497, 508 (1965) (state may protect public welfare notwithstanding interference with public contracts). Paul Kahn argues persuasively that these cases implicitly recognize the prohibition against binding successor legislatures as a “structural principle of constitutional law” within which even specific constitutional commands like the contract clause must be interpreted. See Kahn, 13 Hastings Const. L.Q. at 220–24 (cited in note 2).Google Scholar

202 Another contributor to the clause's demise was the judicially created presumption that absent some clear indication that the legislature intends to bind itself contractually, a law will not be read to create a contractual right but merely as a declaration of “a policy to be pursued until the Legislature shall ordain otherwise.”Dodge, V. Bd. of Education, 302 U.S. 74, 79 (1937). See also note 207.Google Scholar

203 Although the majority in that case stressed the continuing validity of the “essential attributes” limitation on what rights a legislature may contract away, 431 U.S. I, 21–22, it concluded that the purely financial promise at issue in the 1962 legislative act was not a compromise of the state's police powers, id. at 24–25.Google Scholar

204 431 U.S. at 25–26. See also Allied Structural Steel Corp. v. Spannus, 438 U.S. 234, 244 n.15 (1978); Energy Reserves Groups v. Kansas Power & Light, 459 U.S. 400, 412 11.14 (1983). A similar dichotomy has been suggested where federal legislation impairs contractual rights. See Nat'l R.R. Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 471 n.24 (1985) (hinting that a congressional breach of its own contract may warrant a more rigorous standard of review than where the contract impaired is a private one). For a detailed treatment of this dual standard, see Bernard Schwartz, Old Wine in Old Bottles? The Renaissance of the Contract Clause, 1979 Sup. Ct. Rev. 95, 105–9.Google Scholar

205 But see Allied Structural Steel Corp. v. Spannus, 438 US. 234 (1979), where the deferential stance articulated in United States Trust was not enough to save a Minnesota law that modified the terms of private pension arrangements.Google Scholar

206 See, e.g., Tribe, American Constitutional Law at 470–73 (cited in note 152) (notions of fairness that transcend the clause require government to adhere to its promises); Note, A Process-Oriented Approach to the Contract Clause, 89 Yale L.J. 1623, 1647 (1980) (persons contracting with the government are strongly justified in relying on the fact that the government will keep its word). Is it really more realistic for a person to rely on a pledge made by a legislature than on one made by a private party? Isn't it somewhat like relying on a commitment from a salesman in a company about to change management?. 207. Some solace can be derived from the Court's continued willingness to invoke the Dodge presumption. See note 202. In Nat'l R.R. Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451 (1985), Justice Marshall, noting that contracts, unlike “policies,” are not subject to revision and repeal, acknowledged that “to construe laws as contracts when the obligation is not clearly and unequivocally expressed would be to limit drastically the essential powers of a legislative body.” 470 U.S. at 466. This is a helpful approach, although in the end it only prevents entrenchment by implication. If the legislature is explicit in seeking to disarm its successors of their “essential powers,” the Court apparently would regard itself as bound to accede to the entrenching directive.Google Scholar

207 Oliver Wendell Holmes, The Path of the Law, in Collected Legal Papers 175 (New York: Harcourt, Brace & Howe, 1920). To the extent that Holmes meant to suggest that specific performance is never appropriate, his statement is, of course, overbroad. See Epstein, 53 U. Chi. L. Rev. at 741 & n.102 (cited in note 193).Google Scholar

208 See, e.g., the well-reasoned student note, Takings Law and the Contract Clause: A Takings Law Approach to Legislative Modifications of Public Contracts, 36 Stan. L. Rev. 1447, 1459 (1984) (granting public contract holders the ability to block legislative response to unforeseen needs where no economic injury occurs has the effect of preventing efficient transfers that would maximize social utility without decreasing the welfare of any individuals). Cf. Richard Posner, Economic Analysis, §§ 4.9, 4.12 at 86–89, 95–96 (2d ed. Boston: Little Brown & Co., 1977) (damage remedy for breach of contract serves efficiency).CrossRefGoogle Scholar

209 For a rare example of the damage remedy being touted because of the greater flexibility it affords the legislature, see Note, A Procedural Approach to the Contract Clause, 93 Yale L.J. 918, 928–29 (1984).Google Scholar

210 431 U.S. at 414 (Brennan, J., dissenting) (relying on detailed findings of trial court).Google Scholar

211 The Court recently confronted a new variation of the entrenching effects of public contracts. The entrenchment in Bowen v. Public Agencies, 106 S. Ct. 2390 (1986), was alleged to be required by the takings clause of the fifth amendment rather than the contract clause of article I. In 1950, Congress extended the Social Security system to the employees of states or other political subdivisions on condition that their employers choose to participate in the program. In 1951, California and the United States executed an agreement under which California opted in, but was permitted (in accordance with the terms of the 1950 act) to withdraw any coverage group of its public employees on two years advance notice. In 1983, as part of a broad federal statute designed to keep the Social Security system from going bankrupt, Congress deleted the portion of the 1950 act that afforded the state the opportunity to withdraw its employees from the system. Several California public agencies challenged the constitutionality of the deletion of the escape clause. Because of the contract clause's inapplicability to the federal government (see note 192), the plaintiffs argued that Congress had “taken” the state's contractual property right to withdraw from Social Security. The United States District Court agreed. Public Agencies v. Heckler, 613 F. Supp. 558 (E.D. Cal. 1985). Although the 1950 act had explicitly provided that “[t]he right to alter, amend or repeal any provision … is hereby reserved to the Congress,” 42 U.S.C. 1304, the district court gave this reservation a limited scope. Section 1304, said the court, authorizes Congress to alter or amend the statute, not the contract. Id. at 574. The Supreme Court unanimously reversed. Contracts, said Justice Powell, “should be construed, if possible, to avoid foreclosing exercise of sovereign authority.” 106 S. Ct. at 2397. California's agreement with the United States expressly provided that its terms were “in conformity with” the 1950 act. California was thus on notice that Congress had reserved “the power to amend the law under which the Agreement was executed and by amending that law to alter the Agreement itself.”Id. at 2398. Left unanswered by the Supreme Court's opinion was whether the ability of the 1983 Congress to act to save a comprehensive social welfare program affecting millions of Americans was due solely to the reservation of authority by the 1950 Congress. Most disquieting was Justice Powell's quotation from an earlier case to the effect that sovereign power … is an enduring presence that governs all contracts subject to the sovereign's jurisdiction and will remain intact unless surrendered in unmistakable terms. Id. at 2397 (emphasis added). In the end, therefore, Bowen v. Public Agencies stands only for the proposition that the 1950 Congress hadn't—or at least shouldn't be presumed to have—relinquished the sovereign power of its successors. Lurking in the shadows is the possibility that the Court believed the 1950 legislature was constitutionally capable of such a surrender.Google Scholar

212 Are treaties entrenched? Can a treaty that was ratified by a two-thirds vote of the Senate and signed by the President be subsequently altered or abrogated by ordinary legislative act? The answer depends ultimately on whether one regards treaties as on the same footing with other “Laws” (as that term is used in the supremacy clause). The Supreme Court seems to be convinced that they are and accordingly it has routinely given effect to acts of Congress, notwithstanding conflicts with the terms of earlier treaty obligations. (Such legislative abrogations, however, have only domestic consequences and do not affect the international obligations of the United States. See Louis Henkin, Foreign Affairs and the Constitution 164 (Mineola, N.Y.: Foundation Press, 1972)). The rationale the Court offers is a familiar one: “the last expression of the sovereign will must control.” See The Chinese Exclusion Case, 130 U.S. 581, 600 (1889). See also Whitney v. Robertson, 124 U.S. 190, 194 (1888); Head Money Cases, 112 U.S. 580, 599 (1884). An explicit undertaking in a treaty that Congress would not legislate to the contrary would, of course, change nothing. Henkin at 418 n. 116. Cf. General Agreement on Tariffs and Trade, Oct. 1947, 61 Stat. A3, T.I.A.S. No. 1700 (executive agreement in which promise was made that Congress would not enact certain legislation affecting international trade).Google Scholar

The equality of statutes and treaties, although well-settled, hardly seems inevitable. See Henkin, at 163–64. One of the consequences of this parity seems to be that a treaty, in which the House plays no role, can modify an earlier legislative command, see Cook v. United States, 288 U.S. 102 (1933) (holding a treaty provision to have repealed an earlier liquor prohibition statute), although there are arguments that the Cook case ought not to be read so broadly, Henkin at 164.Google Scholar

213 The legislative veto issue is far too multifaceted to be treated adequately in a footnote. I raise it here only to make the point that the President is also temporally constrained. Justice White's dissenting suggestion in INS v. Chadha that the presentment requirement of article I had been somehow waived by the President's signature on the legislation establishing the legislative veto procedure, see 402 U.S. 919, 987 (1983) (“it is enough that the initial statutory authorizations comply with the Article I requirements”), attaches no significance to the fact that the presidents involved at both ends are not the same person. The one whose power the majority sought to preserve was not the one who had delegated away his prescribed role in the legislative process. Even if a President enjoyed the right to so diminish his own authority, but see Chadha at 958 n.23 (“the explicit prescription for legislative action contained in Article I cannot be amended by legislation”), that President ought in no way to be permitted to make this judgment for future holders of the office. There are, to be sure, ways in which the President can achieve entrenchment of sorts. Appointments of lifetime judges are surely among the most significant of these, a fact that has not been lost on the current administration. A key goal of the second Reagan administration, proclaimed Attorney General Edwin Meese at its onset, is “to institutionalize the Reagan revolution so it can't be set aside no matter what happens in future presidential elections.” See “Conservatives Have Their Own Brand of Judicial Activism,” Wall St. J., Aug. 8, 1985, at 21, col. 3. So much for temporal limits.Google Scholar

214 The Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99–177, 99 Stat. 1038 (1986), better known as the Gramm-Rudman Act, raised serious entrenchment problems that were barely hinted at in Bowsher V. Synar, 106 S. Ct. 3181 (1986). Concerned about spiraling budget deficits and unwilling to deal with the problem by constitutional amendment, Congress promulgated this complex statutory framework designed to phase out such deficits over a five-year period. The Act established “maximum deficit amounts” for each of the next six fiscal years (1986–91). If the projected deficit in any fiscal year exceeds the targeted amount, a system of automatic spending cuts is triggered. The cuts are put into effect by several steps, culminating with the Comptroller General sending a report to the President. The President then must issue a “sequestration” order containing the program-by-program spending reductions required by the Act and calculated by the Comptroller General.Google Scholar

The Supreme Court invalidated the automatic spending reduction mechanism on separation of powers grounds. Gramm-Rudman, it explained, had assigned the Comptroller General the executive function of applying the law. Under the 1921 Budget and Accounting Act, however, Congress has the power to remove the Comptroller General by joint resolution. “By placing the responsibility for execution [of Gramm-Rudman] in the hands of an officer who is subject to removal only by itself,” the Court concluded, Congress “ha[d] retained control over the execution of the Act and ha[d] intruded into the executive function.”Id. at 3192. Thus the congressional error lay in choosing the wrong official to wield the ax. This decision trivializes the fundamental question raised by Congress's framework. As Professor Paul Kahn has perceptively noted, Gramm-Rudman “upsets the normal order between past and future Congresses.” Kahn, 13 Hastings Const. L.Q. at 201 (cited in note 2). The present Congress stipulates limits on what the future Congress can spend. Gramm-Rudman, therefore, is regulating future legislation. Id. at 190. The Congress that bears the burden is not the same as that which created the burden. Id. at 193. Admittedly, this is a very different kind of entrenchment than the reader encountered in my textual examples. A future Congress remains free to repeal if Gramm-Rudman proves too constrictive. But, as Kahn convincingly argues, the right of repeal “fails to cure all constitutional concerns with the temporal dimension of the law.”Id. at 196.Google Scholar

Gramm-Rudman procedurally entrenches. Cf. note 16 (suggesting that this could alternatively be described as preconditional entrenchment). It sets the form by which prior legislation can be altered. It is not enough, as it normally would be, for a future Congress to ignore its predecessor's directives. The Gramm-Rudman Act reverses the generally operative rule that, as between conflicting legislative commands, the one that is later in time controls. Transcending the Gramm-Rudman spending limits requires passage of two laws, a repeal and an appropriation bill. Given all that we know about legislative inertia, see notes 326, 327, 352 & 353 and accompanying text, the enactment of a rule of express repeal raises many of the same concerns highlighted in the textual examples. The concept of entrenchment may encompass laws that unduly burden future legislators as well as those that bind them. It may be no easier to walk when dragging a hundred-pound ball and chain than when tied to a chair. As Kahn concludes, Gramm-Rudman is based on the political judgment that it will be far more difficult for future Congresses to repeal Gramm-Rudman than it will be for them to appropriate funds beyond the spending targets. Id. at 204. This is, I suggest, precisely the sort of extratemporal influence that our temporary agents should not enjoy.Google Scholar

215 The issue of entrenchment is also pertinent to rules of statutory construction. Expansive applications of statutes to cases not anticipated by their framers may be viewed as permitting legislatures to extend their lives beyond the terms of their members. As Frank Easterbrook has recently recognized, “f time is classified with the veto as a limit on the power of legislatures, then one customary argument for judicial gap filling—that legislatures lack the time and foresight to resolve every problem—is a reason why judges should not attempt to fill statutory gaps.” Easterbrook, 50 U. Chi. L. Rev. at 548–49 (cited in note 109). Restricting the domain of a statute to matters expressly resolved by the legislative process “reduces the times judges must summon up the ghouls of legislatures past” to resolve new questions “presented” to them. Id. at 549. On the other hand, as Jon Varat argues with a great deal of force, the reality of legislative inertia demands a certain amount of judicial updating of statutes in order to prevent the entrenchment of past majorities. Varat, Jonathan D., Economic Ideology and the Federal Judicial Task (Book Review), 74 Calif. L. Rev. 649, 669–72 (1986). I do not intend here to enter the controversy over which judicial approach to statutory interpretation most closely comports with a republican form of government. I wish only to suggest that the issue of the temporal limits of legislative power is at the heart of this debate.CrossRefGoogle Scholar

216 3 U.S. (3 Dall.) 386 (1798).Google Scholar

217 U.S. Const., art. I, § 9, cl. 3 (prohibiting Congress from passing such laws); art. I, § 10, cl. 1 (imposing the identical restriction on the states).Google Scholar

218 See, e.g., Crosskey, William Winslow, The True Meaning of the Constitutional Prohibition of Ex-Post-Facto Laws, 14 U. Chi. L. Rev. 539 (1947) (ordinary 18th-century meaning of “ex post facto laws” clearly encompassed civil legislation); John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205, 1312 (1970) (justices who originally read the clause more narrowly than it was intended were plainly proceeding on the assumption that other provisions would play a stronger role than they have in fact played in limiting retroactive civil legislation); Field, Oliver P., Ex Post Facto in the Constitution, 20 Mich. L. Rev. 315 (1922) (judged by the Framers' intentions and the understanding of the people of the day, ex post facto clause's prohibition went to civil as well as criminal legislation); Joseph Story, 2 Commentaries on the Constitution of the United States 8 1345, at 240 (3d ed. Boston: Little, Brown & Co., 1858) (as an original matter, the argument that the clause embraces all laws governing past transactions, whether of a civil or a criminal nature, was well taken); Tribe, , American Constitutional Law at 482 n.30 (cited in note 152) (clause cannot be restricted to penal legislation if we are to serve the objective of insuring that legislatures operate prospectively when the rights of individuals might be adversely affected). The movement for a more expansive reading of the ex post facto clause has not been without its judicial champions. See Matthewson, Satterlee V., 27 U.S. (2 Pet.) 380, 416, 681–87 (1829) (Johnson, J., concurring) (historical usage of term “ex post facto laws” not confined to criminal statutes); Marcello v. Bonds, 349 U.S. 302, 319 (1955) (Douglas, J. dissenting) (urging broader application of the clause to fulfill its original intention); Carlson, Lehman V., 353 U.S. 685, 690–91 (1957) (Black, J., concurring) (urging Court to reconsider the interpretation of the clause with a view to applying it to protect individuals more effectively from new or additional burdens retrospectively imposed by Congress). Indeed, in the years following Calder, the majority itself often seemed to depart from the limited reading of the clause. See, e.g., Peck, Fletcher V., 10 U.S. (6 Cranch) 87, 138–39 (1810) (where Chief Justice Marshall referred to a law rescinding a land grant made by the previous legislature as an ex post facto law); Missouri, Cummings V., 71 US. (4 Wall.) 277 (1867) and Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867) (both holding that revocations of license to practice livelihood violated the ex post facto clause because they imposed punishment for acts that carried no such sanctions at the time they were committed); Salmon, Burgess V., 97 U.S. 381, 385 (1878) (concluding that tobacco law could not be applied to completed tobacco sales without violating the ex post facto clause).CrossRefGoogle Scholar

219 Throughout this section, the terms “retroactive” and “retrospective” are used interchangeably, as they are in judicial usage. See Jabez Gridley Sutherland, 2 Statutory Construction, 0 41.01 (C. Sands 4th ed. Chicago: Callaghan, 1973); Hochman, 73 Harv. L. Rev. at 692 n.1 (cited in note 4).Google Scholar

220 U.S. Const., art. I, § 10, cl. 1.Google Scholar

221 But see note 192.Google Scholar

222 25 U.S. (12 Wheat.) 213, 257–60 (1827).Google Scholar

223 Tribe, American Constitutional Law at 468 (cited in note 152).Google Scholar

224 290 U.S. 398, 435 (1934).Google Scholar

225 Once Ogden had held that a private contract incorporates the prevailing positive law at the time it is entered into and thus made the legislature the source of contractual expectations, it rendered private contracts susceptible to many of the same entrenchment difficulties that plague public contracts. See part ID3.Google Scholar

226 See Allied Structural Steel v. Spannus, 438 US. 234 (1978) (retroactive modification of pension payment obligations of employers held to violate contract clause). See also United States Trust Co. v. New Jersey, 431 U.S. 1 (1977). discussed in part ID3. Subsequent decisions from the High Court suggest that these two cases are aberrational rather than transitional. See Energy Reserves Group v. Kansas Power and Light, 459 U.S. 400 (1983) (where state law does not operate as a “substantial impairment” of a contractual relationship, the level of scrutiny invoked in Allied Steel is not appropriate); Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) (generally applicable state laws merely having “incidental effect” of impairing contractual rights distinguishable from laws—like those in Allied Steel and US. Trust—specifically designed to alter contractual obligations).Google Scholar

227 See, eg., Hochman, , 73 Harv. L. Rev. at 695 (cited in note 4) (standards for testing constitutionality of a statute's retroactive effects same under the due process clauses as under the contract clause); Slawson, , 48 Calif. L. Rev. at 221 (cited in note 4) (making the same assertion); Greenblatt, , 51 Nw. U. L. Rev. at 543–44 (cited in note 4) (due process clause of fourteenth amendment has largely absorbed contract clause). But see PBGC v. Gray, 467 US. 717, 733 (1984) (Court has never held principles embodied in the due process clause of fifth amendment to be coextensive with prohibitions of the contract clause).Google Scholar

228 428 U.S. 1, 16 (1976).Google Scholar

229 Id. at 18 (imposition of liability for effects of disabilities bred in the past justified as a “rational measure” to spread the cost of employees' disabilities to those who have profited from fruits of their labor).Google Scholar

230 Id. at 44–45 (Powell, J., concurring) (disagreeing with majority's conclusion that retroactive application of act was rational, but concurring because challenger's factual showing was inadequate to overcome strong presumptions of constitutionality). See also PBGC v. Gray, 467 U.S. 717, 729 (1984) (strong deference accorded national economic legislation no less applicable when it has been applied retroactively).Google Scholar

231 See, e.g., Nat'l R.R. Corp. v. Atchison Topeka & Santa Fe Ry. Co., 470 U.S. 451, 472 (1985).Google Scholar

232 All remaining concerns under the due process clause should have dissipated with PBGC v. Gray, 467 U.S. 717 (1984). In unanimously upholding the application of the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act of 1980 to employers who withdrew from plans five months prior to the statute's enactment, the Court announced judicial abdication of the field—at least when the period of retroactivity is short. “We are loathe,” said the Court, “to reject such a common practice when conducting the limited judicial review accorded economic legislation under the … Due Process Clause.”Id. at 731. Although the Justices noted that the congressional debates afforded the affected employers ample warning that retroactive effective dates were contemplated, they expressed serious doubts that such notice would be constitutionally compelled. Id. at 731–32.Google Scholar

233 Perhaps most illustrative of the Court's reluctance to play an active role in curbing retroactive legislative efforts was Gray's treatment of the four-part due process test for reviewing such legislation which had recently found widespread favor in the lower federal courts. Originally articulated by the United States Court of Appeals for the Seventh Circuit in Nachman Corp. v. Pension Benefit Guaranty Corp., 592 F.2d 947 (1979), aff'd on statutory grounds, 446 U.S. 359 (1980), the test required a consideration of (1) the reliance interest of the affected parties; (2) whether the interest impaired is in an area previously subjected to regulatory control; (3) the equities of imposing the legislative burdens; and (4) the statutory provisions that limit and moderate the impact of the burdens imposed. Id. at 960. Cf. Hochman, 73 Harv. L. Rev. at 697 (cited in note 4) (identifying factors for scrutiny in assessing constitutionality of retroactive legislation as (1) nature and strength of public interest served; (2) nature of the preenactment private rights altered; and (3) extent to which such rights are modified). In a brief footnote, the Supreme Court squelched the growing momentum behind the proposed balancing standard, noting simply that the Justices rejected the constitutional underpinning of the Nachman analysis. 467 U.S. at 727 n.6.Google Scholar

234 U.S. Const. amend. V (“[N]or shall private property be taken for public use, without just compensation”).Google Scholar

235 Pennslyvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). The holding in Mahon, that Pennsylvania's ban on coal mining that threatened surface structure went “too far,” appears to have fallen on hard times. See Keystone Bituminous Coal Ass'n v. DeBenedictis, 107 S. Ct. 1232 (1987).Google Scholar

236 The prohibition is applicable to the states by its full “incorporation” into the due process clause of the fourteenth amendment. Webbs Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980). The original text of the Constitution (with the Bill of Rights) limited the states' ability to impair contract and the federal government's ability to take property. The subsequent willingness of the Court to extend the taking restriction, with all its teeth, to the states, has not been matched by a parallel extension of the contract restriction to Congress. While it is given some voice in the fifth amendment's due process clause, the contract clause is not deemed to be incorporated therein. See note 192. Cf. Bolling V. Sharpe, 347 U.S. 497 (1954) (equal protection strand of fourteenth amendment held incorporated in fifth amendment's due process clause).Google Scholar

237 Although the judiciary may still enjoy some residual power to invalidate a taking as being insufficiently “public” in purpose notwithstanding provision for compensation, the current judicial practice is to treat the determination of what is a public use as one for the legislature to make. See Parker, Berman V., 348 U.S. 26, 32 (1954); Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 239–41 (1984).Google Scholar

238 459 U.S. 70 (1982).Google Scholar

239 642 F.2d 1193 (10th Cir. 1981).Google Scholar

240 The remaining three concurred in the prospective construction but believed that the statute, even if given a retroactive application, would survive a constitutional attack under the fifth amendment. 459 U.S. 83–84 (Blackmun, J., concurring).Google Scholar

241 Id. at 74 (act is a rational exercise of congressional power that has been regularly construed to authorize the retroactive impairment of contractual obligations).Google Scholar

242 Id. at 75.Google Scholar

243 Cf. Lynch v. United States, 292 U.S 571, 579 (1934) (“valid contracts are property”).Google Scholar

244 459 U.S. at 75 (“cases recognize … that the contractual right of a secured creditor to obtain repayment of his debt may be quite different in legal contemplation from the property right of the same creditor in the collateral”). Compare the persuasive argument in Justice Blackmun's concurrence pointing out that “the security interest seems to have little direct value and weight in its own right and appears useful mainly as a convenient tool with which to threaten the debtor to reaffirm the underlying obligation.”Id. at 84.Google Scholar

245 For this and other penetrating criticisms of the case, see Rogers, James Steven, The Impairment of the Secured Creditors' Rights in Reorganization: A Study of the Relationship Between the Fifth Amendment and the Bankruptcy Clause, 96 Harv. L. Rev. 973 (1983).CrossRefGoogle Scholar

246 The Court may be retreating from this dichotomy somewhat. See Connolly v. PBGC, 106 S. Ct. 1018 (1986) (retroactive withdrawal liability provisions of Multiemployer Pension Plan Amendments Act are not takings under fifth amendment).Google Scholar

247 459 US. at 79–80.Google Scholar

248 See generally Smead, 20 Minn. L. Rev. (cited in note 4).Google Scholar

249 Indeed, retroactive laws “such as those which declare valid marriages which, owing to some mistake of form or otherwise, have not been properly celebrated” and acts of indemnity “the object of which is to make legal transactions which when they took place were illegal” are said by Dicey to constitute “the highest exertion and crowning proof of sovereign power.” Dicey, Law of the Constitution at 49–50 (cited in note 13). See also Peter W. Hogg, Constitutional Law of Canada 200 n.22 (Toronto: Carswell Co., 1977) (no Canadian constitutional impediment to the quite common practice of legislating retroactively).Google Scholar

250 See, e.g., United States Fidelity & Guarantee Co. v. Struthers Wells Co., 209 US. 306, 314 (1908) (“the presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other”); Union Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199 (1913) (legislation must be construed as addressed to the future unless the unequivocal and inflexible import of its terms be otherwise). See also cases collected by Smead, 20 Minn. L. Rev. at 781 n.22 (cited in note 4).Google Scholar

251 470 U.S. 632 (1985).Google Scholar

252 See generally Karl Llewellyn, The Common Law Tradition—Deciding Appeals 521–35 (Boston: Little, Brown & Co., 1960). Cf. Herbert Simon, Administrative Behavior 20–36 (New York: Free Press, 1976) (principles of administration, like proverbs, occur in pairs).Google Scholar

253 5 U.S. (1 Cranch) 103 (1801).Google Scholar

254 Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974).Google Scholar

255 470 U.S. at 639. Compare 470 U.S. at 653–54 (Stevens, J., dissenting) (presumption of retroactivity correctly applied by lower court).Google Scholar

256 Gray, The Nature and Sources of the Law at 187 (cited in note 23) (legislature can, in the absence of constitutional prohibitions, make a new statute retroactive).Google Scholar

257 470 US. at 639.Google Scholar

258 See, e.g., Colo. Const. art. II, § 11 (general assembly barred from passing any law “retrospective in its operation”); Ga. Const. art. I, § 7, para. 7 (prohibiting the passage of any “retroactive law”); Idaho Const. art. XI, § 12 (prohibiting the passage of any law for the benefit of a railroad, corporation, or individual that is “retroactive” in operation); Mo. Const. art. I, § 13 (banning enactment of any law “retrospective” in its operation); N.H. Const. art. I, § 23 (condemning “retrospective laws” as “injurious, oppressive and unjust” and barring their passage “either for decision of civil causes or punishment of offenses”); Ohio Const. art. II, § 28 (denying legislature power to pass “retroactive laws” except curative ones and only then “upon such terms as are just and equitable”); Tenn. Const. art. I, § 20 (barring making of “retrospective laws”): Tex. Const. art. I, § 16 (barring making of “retroactive laws”). Interpretation of these provisions has usually followed closely the standards developed under the due process clause. See Greenblatt, , 51 Nw. L. Rev. at 544 (cited in note 4) and the case citations collected there.Google Scholar

259 Slawson, , 48 Calif. L. Rev. at 216 (cited in note 4).Google Scholar

260 Compare 3 US. (3 Dall.) at 388–89 (Chase, J.) (inconsistent with principles of republican government to believe that people entrusted representatives with the power to freely legislate retroactively even when not expressly prohibited) with 3 U.S. (3 Dall.) at 398–99 (Iredell, J.) (since Constitution contains no affirmative limit on power of legislature to act retroactively, the Court enjoys no authority to invalidate such efforts). See part IIB3 for further exposition of the competing views.Google Scholar

261 Society for the Propagation of the Wheeler, Gospel V., 22 Fed. Cas. 756 (No. 13, 156) (C.C.D.N.H. 1814).Google Scholar

262 But see Addison, Addison V., 62 Cal. 2d 558, 569 (1965) (statute treating property acquired in noncommunity property state as quasi-community property if owner later moves to California and seeks divorce is not retroactive, since it neither creates nor alters rights prior to divorce judgment). For harsh criticisms of this narrow view of retroactivity, see Knutson, Donald C., California Community Property Laws: A Plea for Legislative Study, 39 S. Cal. L. Rev. 240, 270 (1966); Note, Retroactive Application of California's Community Property Statutes, 18 Stan. L. Rev. 514, 521 (1966).Google Scholar

263 But see Munzer, , 61 Tex. L. Rev. at 453 n.92 (cited in note 4) (such a statute might be called retroactive if the deductions can be viewed as part of the preenactment legal character or consequences of a home purchase and mortgage). It may also be true that the ordinary citizen—as distinguished from someone with legal training—might very well regard such legislation as operating backward in time, since it upsets prior arrangements. (“No fair, I bought the house six years before they passed the tax law.”).Google Scholar

264 But see Fuller, , The Morality of Law at 59 (cited in note 2) (law passed in 1963 imposing a tax on financial gains realized in 1960 cannot be said, strictly speaking, to be retroactive). Compare Munzer, , 61 Tex. L. Rev. at 455 (describing the hypothetical used in the text as a retroactive change in the law). Although I am confident that my textual statement accurately depicts the common understanding of the concept of retroactivity, there is cause for reflection when the minority view includes Lon Fuller. Fuller's argument is as follows: The only act required of the taxpayer is that he pay the tax demanded. This is a prospective requirement. We do not order him to have paid taxes yesterday, although we impose the levy on the basis of past events. I am forced, however, to agree with Fuller's concession that the ordinary citizen would be likely to regard his argument as “the merest quibble.” Fuller at 59. One wonders about the effect on Fuller's analysis if the 1963 legislation required the tax to be paid by amending past returns rather than including the new levies in that year's assessments. There is little to be gained from definitions that treat laws having the same effect as either retroactive or prospective on the basis of how they are phrased. Accord Slawson, 48 Calif. L. Rev. at 217 n.2 and accompanying text (cited in note 4).Google Scholar

265 More recent efforts to define retroactivity have shied away from the use of “vested” interests as a keystone. See, e.g., Hochman, , 73 Harv. L. Rev. at 692 (cited in note 4) (retroactive statute is one that gives preenactment conduct a different “legal effect” from that which it would have had without the passage of the statute); Munzer, , 61 Tex. L. Rev. at 426 (retroactive legislation, in the strict sense, consists of laws that alter “legal character or consequences” of some preenactment action or event).Google Scholar

266 John Austin, 2 Lectures on Jurisprudence, ed. R. Cambell, § 1138, at 256–57 (New York: Henry Holt & Co., 1875).Google Scholar

267 Fuller, , The Morality of Law at 59. At times it seems like the Supreme Court has given up trying. See United States v. Hemme, 106 S. Ct. 2071, 2079–80 (1986) (upholding constitutionality of statutory transition rule, enacted to bridge the old and new regimes for the federal taxation of gifts and estates, without deciding whether it “can be considered to be retroactive taxation”).Google Scholar

268 This marvelous expression, good for so many legal issues, is another legacy of Alexander Bickel. See Bickel, The Least Dangerous Branch at 103 (cited in note 70).Google Scholar

269 On this point I disagree with my colleague Munzer, Stephen, who believes that it makes better sense to get clear about the concept of retroactivity, see Munzer, Stephen R., Retroactive Law, 6 J. Legal Stud. 373 (1977), before proceeding to evaluate the arguments for and against retroactive legislation. See Munzer, , 61 Tex. L. Rev. (cited in note 4). Reversing the order, he has warned me, carries the risk that normative views will exert too much pressure on the conceptual analysis. While the suggestion has certain appeal on a theoretical level, I find it out of place when constructing a constitutional framework. The Constitution makes no reference to “retroactive” laws. If we are, nevertheless, to permit courts to scrutinize retrospective enactments distinctively from prospective statutes, it must be because the former offend some constitutional norm. Absent our ability to identify such a norm, the concept—regardless of how we define it—cannot legitimately serve as a basis for judicial invalidation of a legislative command.CrossRefGoogle Scholar

270 See generally Fuller, The Morality of Law at 51–62.Google Scholar

271 See generally Kaplow, Louis, An Economic Analysis of Legal Transitions, 99 Ham. L. Rev. 509 (1986). Some commentators have contended that retroactive legislation is economically unwise because it induces inefficient precautionary behavior. See, e.g., Feldstein, Martin, On the Theory of Tax Reform, 6 J. Pub. Econ. 77, 91–98 (1976). Graetz, Compare Michael J., Retroactivity Revisited, 98 Harv. L. Rev. 1820, 1824–26 (1985) (economic efficiency does not require protection of existing expectations); Kaplow, at 551–52 (economic efficiency will often favor retroactive application of changes in government policy).CrossRefGoogle Scholar

272 See Hochman, , 73 Harv. L. Rev. at 692–93. Cf. Schwdrtz, Gary T., New Products, Old Products, Evolving Law, Retroactive Law, 58 N.Y.U. L. Rev. 796, 828 (1983) (it is a dubious practice to apply a novel tort rule retroactively when the goal of such law is to influence defendants' behavior).Google Scholar

273 Cf. Tribe, American Constitutional Law at 470 (cited in note 152) (when government signals its trustworthiness and induces citizens' reliance, a powerful argument may be advanced that constitutional notions of fairness transcending the contract clause demand that government be held to its word).Google Scholar

274 I am cognizant that I may be accused here of collapsing a number of distinctive objections to retroactivity under the “expectation” rubric. The idea that a person is entitled to fair notice of what the laws permit, require, or prohibit (see text accompanying note 272) is surely in many ways separable from the notion that one should not suffer loss because of acts undertaken in reliance on the continuity of these laws (see text accompanying note 273). See Schwartz, , 58 N.Y.U. L. Rev. at 814–23. See also Munzer, , 61 Tex. L. Rev. at 425, 426–27 (characterizing second of these principles as an expectation problem and the first as flowing from “the rule of law”). Indeed, the specific constitutional provisions examined in part IIA can be said primarily to direct themselves to one rather than to both objections. While the inclusion of the ex post facto clauses in the Constitution was probably motivated by a fair notice concern, but see Lafave, Wayne R. & Scott, Austin W. Jr., Criminal Law 90 (St. Paul: West Publishing Co., 1972) (motivating rationale may be revulsion against unfettered use of power by public officials), the contract clause seems to aim more at protecting citizens' reliance. Nonetheless, there is a certain element of futility in maintaining these separate strands for the purposes of this article. The legitimacy of a citizens' reliance is simply too dependent on the nature of the notice we regard as being fair for him to receive. See Schwartz, 58 N.Y.U. L. Rev. at 817 (as long as the general rules of the game make clear in advance that the specific rules of the game are subject to change, the player cannot legitimately rely on their immutability). Because of this overlap, I have lumped the two concepts together in examining how the aim of fulfilling expectations complements or contradicts the theory of a republican form of government.Google Scholar

275 Fuller, The Morality of Law at 60 (protecting every reliance on the continuity of existing law would ossify the whole body of our law forever).Google Scholar

276 Graetz, Michael J., Legal Transitions: The Case of Retroactivity in Income Tax Revision, 126 U. Pa. L. Rev. 47, 49–63 (1977). Although Professor Graetz uses tax legislation as his vehicle for analyzing retroactivity issues, his conclusions apply with equal force to all economic legislation. See Graetz, , 98 Harv. L. Rev. at 1822 (cited in note 271). See also Kaplow, , 99 Harv. L. Rev. at 515–19 (cited in note 271) (differences in impact between nominally prospective and nominally retroactive laws, if any, are differences in degree, not kind).CrossRefGoogle Scholar

277 Graetz, , 98 Harv. L. Rev. at 1822–23.Google Scholar

278 But see Graetz, , 126 U. Pa. L. Rev. at 74 (grandfather provisions have been enacted with sufficient frequency in the tax area to argue that people now expect them and act in reliance on that expectation).Google Scholar

279 Cf. Allied Structural Steel Co. v. Spannus, 438 U.S. 234, 250 (1978) (legislation more problematical under contract clause if it operates in an area never before subject to regulation by the state).Google Scholar

280 Graetz, , 126 U. Pa. L. Rev. at 48 n.7. Furthermore, the increased frequency with which courts uphold retroactive legislation of all kinds, see part IIA, suggests that individuals and their counsel should be catching on. See Munzer, , 61 Tex. L. Rev. at 431–32 (cited in note 4).Google Scholar

281 Kaplow, , 99 Haw. L. Rev. at 525.Google Scholar

282 One final straw man remains to be toppled. There are some who suggest that there is greater legitimacy in expecting freedom from retroactivity because government should be “kept to its word.” The concept is an empty one. If the “word” is that all rules are transitory, we can hardly argue that altered rules come as a surprise or violate the promises held out to us. Accord Schwartz, 58 N.Y.U. L. Rev. at 817 (cited in note 272).Google Scholar

283 Munzer, , 61 Tex. L. Rev. at 433, 446–47.Google Scholar

284 Id. at 427 n.6.Google Scholar

285 But see Slawson, , 48 Calif. L. Rev. at 226 (cited in note 4) (reliance can never be absolute, since he legal order must constantly change to fit new factual conditions or new conceptions of the common good); Graetz, , 126 U. Pa. L. Rev. at 78–79 (requirement that once a law is enacted it must remain inchanged is at odds with operation of democratic political institutions, which are subject to periodic changes in representation and political leadership); Kaplow, , 99 Ham. L. Rev. at 575–76 (cited in note 71) (mandating transition relief constrains future government action).Google Scholar

286 The Federalist No. 44, at 301 (J. Madison) (J. Cooke ed. 1961).Google Scholar

287 3 US. (3 Dall.) 386 (1798).Google Scholar

288 Id. at 390–91 (Chase, J.); at 399 (Iredell, J.). But see note 219.Google Scholar

289 Id. at 398 (Iredell, J.).Google Scholar

290 Id. at 400 (Iredell, J.).Google Scholar

291 Id. at 399 (Iredell, J.).Google Scholar

292 Id. at 388 (Chase, J.).Google Scholar

293 Id. at 389 (Chase, J.). The scope of the legislature's authority, however, required interpretation of the Connecticut constitution, a matter over which Chase correctly decided the United States Supreme Court had no jurisdiction. Id. at 392.Google Scholar

294 See, e.g., John E. Nowak, Ronald D. Rotunda & J. Nelson Young, Constitutional Law 426 (2d ed. St. Paul: West Publishing Co., 1983) (Justice Chase decided that the proper role of the Supreme Court was to invalidate legislation if the justices believed that it interfered with rights that the natural law had vested in the people).Google Scholar

295 3 U.S. (3 Dall.) at 388 (Chase, J.). A handful of scholars have cautioned against too broad a reading of Chase's natural law language. See, e.g., Ely, Democracy and Distrust at 210–11 (cited in note 9); Tribe, American Constitutional Law at 428–29 (cited in note 152).Google Scholar

296 Dicey, Law of the Constitution at 39–40 (cited in note 13). In the exercise of this authority, Parliament has promulgated retrospective statutes that relieve persons who have broken the law from responsibility for its breach, thus legalizing acts that, when committed, were unlawful. Id. at 49, 233–37. See also Smead, , 20 Minn. L. Rev. at 778 (cited in note 4) (it has always been clear that if Parliament so desired, it could pass a statute to apply to a past time).Google Scholar

297 There is, of course, something of a definitional problem at work here. Since the statute imposes only a prospective requirement of compliance, it might be argued that the 1990 statute is not retroactive it all. See, e.g., FHA v. Darlington, 358 U.S. 84, 91 (1958) (statutory amendment restricting use of lousing constructed five years earlier under FHA-insured mortgage described as prospective because of absence of penalties for prior use). Under the expectation model, however, the statute might well be viewed as retroactive. See, e.g., Allied Structural Steel v. Spannus, 438 U.S. 234 (1978) (legislation shortening vesting period of employee pension plans for employers who choose to move out of state described as retroactive, even though it only applied to companies moving after the act's passage). Undoubtedly, the automobile manufacturers who had planned a 10-year phase-in period in reliance on the original statute would be inclined to favor the latter position.Google Scholar

298 This tension between the retroactivity and entrenchment prohibitions is very much in evidence in the early public contract cases. See, e.g., West River Bridge Co. v. Dix, 36 US. (11 Pet.) 420 (1837) (legislature cannot be bound by predecessor's contractual commitment never to exercise its eminent domain power on a particular parcel of property): Mississippi, Stone V., 101 US. 814 (1880) (legislative promise to refrain from future exercises of police power restricting use of specific property not binding on successor legislature). Thus, even if the contracting legislature did not explicitly reserve the power to change its mind, see Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 692 (1819) (Story, J., concurring), the Court was willing to find certain core powers inalienable so the current representatives would not be constrained by any promise to forgo their exercise.Google Scholar

299 Section 1 of the twentieth amendment, often called the “Lame Duck Amendment,” provides that “the terms of Senators and Representatives [shall end] at noon of the third day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.”.Google Scholar

300 The twentieth amendment in fact reduced the transitional period. Prior to its enactment, the terms of members of Congress did not begin until March 4. The lengthy period between the election and the commencement of the term of office had been necessitated by the difficulties of communication and transportation. Once these conditions no longer obtained, it was believed desirable to cut back on the lame-duck period. See generally S. Rep. No. 26, 72d Cong., 1st Sess., 2–6 (1932). Although some postelection authority continues to reside in the outgoing representatives, the framers of the twentieth amendment decided that gradual change could not be tolerated in one critical area. The amendment provided that the new representatives were to take office several weeks prior to the President so the new membership of the House of Representatives could be called on to elect a President under the twelfth amendment should that procedure become necessary. Thus “a repudiated House, defeated by the people themselves at the general election,” would not be asked to make the selection. Id. In the very midst of a scheme providing for some postelection legislative power, provision has been made to guard against entrenchment.Google Scholar

301 Perhaps “premandate” is an odd term to apply to conduct that took place after the voters selected the new representatives. I operate under the fiction that, because of the terms of the twentieth amendment, the electorate was aware of the delayed commencement of the agency it delegated and did not wish their new representatives to speak for them until eight weeks had passed. This view does not comport with reality. The occasional representative who steps aside after the election to permit the governor to appoint the newly elected individual to fill the remaining term (which is usually done for the purpose of establishing seniority) no doubt believes that this practice furthers rather than contravenes the voters' preference. The premandate conduct I address in the remaining pages, however, concerns the displacement of preelection choices and does not fall within the twilight zone created by the twentieth amendment.Google Scholar

302 On the other hand, there are sound reasons for assessing legislative alteration of predecessor nonpassage differently from alteration of predecessor enactments. The former is not as clear an expression of majoritarian will. See generally notes 337–41 and accompanying text.Google Scholar

303 As Kaplow, notes, even desirable changes in policy may be opposed by those who will lose from their enactment. Kaplow, , 99 Harv. L. Rev. at 571 (cited in note 271). Without assurances of some security for past choices, we are all wary of charting new directions.Google Scholar

304 See The Federalist No. 44. at 301 (J. Madison) (J. Cooke ed. 1961):…. The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation, that sudden changes and legislative interferences in cases affecting personal rights, become jobs in the hands of enterprizing and influential speculators; and snares to the more industrious and less informed part of the community…. They very rightly infer, therefore, that some thorough reform is wanting which will… give a regular course to the business of society….Google Scholar

305 See generally text accompanying notes 270–85.Google Scholar

306 Where, however, the commands of the contract or takings clauses are applicable, an economic focus might be more justified. In such a case the Constitution seems to have explicitly chosen to shield individual economic interests from the reach of the ordinary political process. In these limited arenas, the legislator's ability to act retrospectively is arguably constrained substantively as well as temporally. But see part ID3 (suggesting that remedies for violations of these clauses ought ordinarily to be compensation for the injured parties and not invalidation of the legislative exercise of power).Google Scholar

307 3 US. (3 Dall.) 386, 388 (1798) (emphasis in original).Google Scholar

308 Id. at 400.Google Scholar

309 See Munzer, , 61 Tex. L. Rev. at 468 (cited in note 4). But see FHA v. Darlington, 358 U.S. 84, 91 (1958) (“clarifying” amendment described as prospective because it imposed no “penalties” for past conduct).Google Scholar

310 Nowak, Rotunda & Young, , Constitutional Law at 473 (cited in note 294); Munzer, , 61 Tex. L. Rev. at 468: Slawson, 48 Calif. L. Rev. at 238 (cited in note 4).Google Scholar

311 Lon Fuller has observed that constitutional framers commonly overlook the need for curative laws and thus draft overbroad prohibitions of retroactive laws that force courts to struggle for limiting principles. Fuller, The Morality of Law at 54 n. 14 (cited in note 2).Google Scholar

312 Hochman, , 73 Harv. L. Rev. at 705–6 (cited in note 4).Google Scholar

313 Cf. Munzer, , 61 Tex. L. Rev. at 470 (upholding curative legislation tends to protect those who rely on the underlying merits of a claim rather than those who grasp at legal technicalities).Google Scholar

314 Other factors come into play where the ex post facto clause is implicated. Professor Munzer, has more generally suggested that cases involving personal liberties warrant different treatment because of the requirement of advance notice that is relevant in these instances. He cites Forbes, Tiaco V., 228 U.S. 549 (1913) (upholding a legislative “cure” of an ultra vires deportation by the governor of the Philippines), as evincing the need for a different level of scrutiny in such settings. Munzer, , 61 Tex. L. Rev. at 470. While I concur in Munzer's discomfort with the result in Tiaco, I would deal with problems such as this through a more expansive and less technical definition of “penalties” subject to the ex post facto clause, see Bonds, Marcello V., 349 U.S. 302, 319–321 (1955) (Douglas, J., dissenting) (urging application of clause to deportation proceedings), rather than by adopting a two-tiered approach to curative legislation.Google Scholar

315 Grant Gilmore, The Ages of American Law 35–36 (New Haven: Yale University Press, 1977). Gilmore may, however, underrate the extent of statutory activity in the 19th century. See the sources collected in Calabresi, A Common Law for the Age of Statutes 164–65 (Cambridge: Harvard University Press, 1982).Google Scholar

316 Of course, the legislature may choose to codify rather than alter the existing common law principle. Although one could technically classify such an act as retroactive in the event that the statute were given a preenactment-effective date, it is difficult to imagine how codification of the status quo can serve as the basis for a legitimate complaint. It is also not easy to imagine what a legislature would gain from retroactively applying a law that effected no change. But see Splawn v. California, 431 U.S. 595, 604 n.4 (1977) (Stevens, J., dissenting) (referring to California statute retroactively adopting prior judicial decision regarding admissibility of evidence of pandering in obscenity determination).Google Scholar

317 R.I. Gen. L. § 9–1–26.Google Scholar

318 N.C. Gen. Stat. § 1–539.9.Google Scholar

319 A reviewing court would probably skirt this issue by construing the statute, if possible, to apply prospectively only. See text accompanying notes 247–57.Google Scholar

320 Ronald Dworkin, Taking Rights Seriously 112 (Cambridge: Harvard University Press, 1977).Google Scholar

321 Weisberg, Robert, The Calabresian Judicial Artist Statutes and the New Legal Process, 35 Stan. L. Rev. 213, 235 (1983) (describing Dworkin's position).Google Scholar

322 See, e.g., Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 680–81 (1930) (mere retroactive overruling by court of principles or doctrines established by previous decisions on which a party relied does not give rise to constitutional claim); Tidal Oil v. Flanagan, 263 US. 444, 455 (1924) (mere reversal by a state court of its previous decision, whatever its effect upon contracts, does not violate any clause in the federal Constitution). The Court in Brinkerhoff indicated, however, that in extraordinary circumstances a decision retroactively overruling a prior authority may violate the due process clause. 281 U.S. at 681–82 (where retroactive overruling denied plaintiff opportunity to be heard in either administrative or judicial tribunal, due process “in the primary sense” had been violated). Furthermore, although the ex post facto clause is only applicable to legislative acts, Frank V. Mangum, 237 U.S. 309, 344 (1915), retroactive judicial enlargements of criminal statutes may, if so unforeseeable as to deny defendant fair warning of prohibited conduct, be barred by the due process clause. See Marks v. United States, 430 U.S. 188 (1977); Rabe v. Washington, 405 U.S. 313 (1972); Bouie v. City of Columbia, 378 US. 347 (1964).Google Scholar

323 Munzer, , 6 J. Legal Stud. at 373, 374–75 (cited in note 269). The tradition draws support from the fiction that judges “find” rather than “make” law. Thus, when they overrule prior common law decisions, they are merely discovering what the law was all along. See Greenblatt, , 51 Nw. U. L. Rev. at 540–41 (cited in note 4); Schwartz, , 58 N.Y.U. L. Rev. at 814 (cited in note 272). In a sense, therefore, retrospective overruling is viewed as curative. It is designed to fulfill the intent of the promulgator. For a nonsympathetic view of retroactive overruling, see generally Traynor, Roger J., Vadis, Quo, Prospective Overruling: A Question of Judicial Responsibility, 28 Hastings L.J. 533 (1977).Google Scholar

324 For the purpose of this analysis, I have assumed that the common law rule has not served as the basis for contractual arrangements between private citizens. In such instances, the contract clause imposes limitations on the legislative power that do not apply to the judiciary. See Brinkerhoff-Faris Co. v. Hill, 281 US. 673, 680 n.7 (1930) (citing “long line of decisions” holding that contract clause is directed only against legislative impairment and not against judgments by courts).Google Scholar

325 Ely, Democracy and Distrust at 4 (cited in note 9).Google Scholar

326 Calabresi, A Common Law for the Age of Statutes at 93 (cited in note 315). Our legislative structure has, Calabresi argues, a retentionist bias. Thus common law rules that are completely out of step with majoritarian desires can nonetheless remain in force for some time. Id. at 102.Google Scholar

327 Ely, Democracy and Distrust at 67.Google Scholar

328 I do not mean to suggest here that the legislature may retroactively overrule the common law judgment as applied to the specific parties involved in a case. Such action might conceivably constitute a taking or, if punitive in nature, a bill of attainder. The legislative system is not an acceptable method of adjudicating the rights of individual litigants. Furthermore, there would be serious separation of powers problems raised by this type of legislation. See generally Tribe, American Constitutional Law at 491–99 (cited in note 152). This, however, is a different question from the one I address in the text. On the other hand, it should not be forgotten that this sort of individualized retroactivity is precisely what was at issue in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) (statute invalidated a probate court decree that failed to approve a will, resulting in a new hearing at which the will was approved, to the heirs' detriment). Of course, Calder did predate the passage of the fourteenth amendment (and its application of the takings clause to the states) and there is no suggestion in the case that the judicial decree was altered in order to “punish” the heirs.Google Scholar

329 For a response to the argument that silence in the face of judicial decisions is not the same as silence in a regulatory vacuum, see note 339.Google Scholar

330 In its pure form, such legislation will regulate in an area previously unregulated (i.e., sexual harassment), but in its more common embodiment, the new law will regulate a new aspect (e.g., seat belts) of a previously regulated subject (e.g., automobile manufacture). Of course, a persuasive argument might be made that there are no truly empty lots. Even the regulation of sexual harassment can be regarded as an addition to the existing employment discrimination structure. Cf. Allied Structural Steel v. Spannus, 435 U.S. 234, 261 n.8 (1978) (Brennan, J., dissenting) (majority's view that Minnesota had no prior laws on employee pensions “takes an exceedingly restrictive view of the subject matter of the Act,” which could just as easily be regarded as a regulation of employee compensation). When I talk of statutory creation, I mean to distinguish statutes that add to the legal landscape from those that conflict with it. I concede, of course, that the meaning of “conflict” can be elusive. For example, does a new seat belt requirement imposed on automobile manufacturers “conflict” with the prior legislative listing of necessary safety features that contained no such requirement? As my subsequent textual discussion will suggest, the answer to this question depends on how one treats legislative silence. The prior legislative nonaction on the seat belt issue should not be confused with legislative action. There are no “conflicting” legislative voices here. Cf. Jones v. Rath Packing, 430 U.S. 519, 540 (1977) (state law regulating label on packaged flour held to conflict with implicit uniformity goals of federal packaging law, although none of state standards were prohibited by federal legislation).Google Scholar

331 310 U.S. 32 (1940).Google Scholar

332 438 US. 234 (1978).Google Scholar

333 310 US. at 38.Google Scholar

334 438 U.S. at 250. But see id. at 261 n.8 (Brennan, J., dissenting) (subject matter of legislation could be viewed as employee compensation, on which prior legislation existed).Google Scholar

335 In fact, the New Jersey legislation was not an invasion of the mandate of the prior representatives. The Court in Veix did not reach the question of the amendment's premandate applicability to persons who had already filed notices of withdrawal. 310 U.S. at 37. Regulating the withdrawals filed subsequent to the passage of the new act did not transcend the amending legislature's temporal mandate. Quite to the contrary, to permit the prior legislature to govern withdrawals made after the completion of its mandate would amount to entrenchment.Google Scholar

336 Furthermore, even under an expectation model, citizen reliance appears to be less warranted when the legislature has remained quiet than when it has spoken.Google Scholar

337 For a persuasive effort to construct a framework for the treatment of silence, see Laurence H. Tribe, Toward a Syntax of the Unsaid: Construing the Sounds of Congressional and Constitutional Silence, 57 Ind. L.J. 515 (1982), reprinted in Laurence H. Tribe, Constitutional Choices 2944 (Cambridge: Harvard University Press, 1985).Google Scholar

338 Id. at 517. Tribe does, however, convincingly demonstrate that there are two contexts—neither relevant here—in which silence deserves to be accorded some significance. In the first, which he labels silence as operative legal fact; constitutional norms require legislative action as a prerequisite for something else. Thus, for example, some presidential exercises of power require prior congressional consent. See, e.g., Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952). Here Congress's silence has significance as an operative fact. Id. at 524–29. The second context in which Tribe would acknowledge the sounds of silence is as part of the historical context of actual enactments. He contends that in statutory construction, what the legislature didn't say may help the courts decide what the legislature meant by what it did say. Id. at 529–31.Google Scholar

339 Hallock, Helvering V., 309 U.S. 106, 121 (1940). The quagmire is no less forbidding when the status quo is created by judicial action rather than as a product of the total absence of governing rules. Admittedly, an agent who sits quietly in a meeting where another person purports to describe the position of that agent's principal appears to acquiesce more than an agent in a meeting where no one attempts to characterize the principal's stance. Why, then, isn't legislative silence in the face of judicial lawmaking less ambiguous than where no such stimulus exists? Quite apart from the failure of such an argument to resolve the problem of the legitimacy of construing silence as an exercise of the mandate, the thesis is also flawed on the issue of ambiguity. First, it is by no means usually clear that the legislature has heard the judicial voice. Id. at 120 (Congress does not always have its attention directed to an undesirable judicial result). Indeed, it might be said that the two were not present at the same meeting. Second, those who favor the judicial expression may seek to take advantage of the retentionist biases in the lawmaking process to block the legislative agent from talking. Id. at 121 (parliamentary tactics might underlie congressional inaction). It may not be feasible to speak loudly enough to be heard above the din of the retentionists. Finally, as I suggested earlier, it should be understood that except when constitutional principles are being articulated, the principal will not be bound by the judicial expression of the law. In such a situation, there is no need for the agent to speak up.Google Scholar

340 I am not including in this category the defeat of proposed legislation in committee or subcommittee. Many bills with widespread support never receive full consideration because of well-placed opponents who, as Dean Calabresi has put it, “have the keys to the legislative freezer.” Calabresi, A Common Law for the Age of Statutes at 48 (cited in note 315). The unwillingness of the full body to consider these proposals notwithstanding the committee's action should not be accorded any significance.Google Scholar

341 Cf. Pacific Gas & Elec. Co. v. State Energy Comm'n, 461 U.S. 190, 220 (1983) (traditional reluctance to draw inferences from failure of Congress to act should not lead Court to give a reading of a statute that Congress considered and rejected).Google Scholar

342 United States v. Darusmont, 449 U.S. 292, 296 (1981) (per curiam).Google Scholar

343 Id. at 297–301.Google Scholar

344 See, e.g., Henry, Welch V., 305 U.S. 134, 146–47 (1938) (taxation neither a penalty imposed on the taxpayer nor a liability that he assumes by contract); Cornrn'n, Cohan V., 39 F.2d 540, 545 (2d Cir. 1930) (nobody has a vested right in the rate of taxation).Google Scholar

345 PBGC v. Gray, 467 U.S. 717, 730–31 (1984).Google Scholar

346 See McCormick, Powell V., 395 U.S. 486, 546–47 (1969) (that an unconstitutional action has been taken before surely does not render that same action any less unconstitutional at a later date).Google Scholar

347 Learned Hand set the permissible period of retroactivity at 12 months. See Cohan v. Comm'n, 39 F.2d 540, 545 (2d Cir. 1930).Google Scholar

348 See, e.g., PBGC v. Gray, 467 U.S. 717, 731 (1984) (in retroactively applying the withdrawal liability provisions of the Multiemployer Pension Plan Amendments Act of 1980, Congress acted to insure that employers enrolled in such plans did not benefit from withdrawing while it debated the precise nature of the liability to be imposed on withdrawing employers).Google Scholar

349 See the comments of James Madison, quoted in note 304. See also Calabresi, A Common Law for the Age of Statutes at 3 (abrupt reversals lead to uncertainty, defeat of expectations, and deep ruptures in society).Google Scholar

350 This statement is premised on the assumption that the legislative change of direction resulted from shifts in public opinion. A quite different vision is possible. Representatives may seriously misjudge—or perhaps even intentionally disregard—the sentiments of their constituents. Subsequent elections may convey corrective messages. The Los Angeles School Board, for example, recently voted for “year-round” schools as a solution to overcrowding in the district. The citizenry's initial response has been unfavorable. Recall efforts are now under way. Even if they do not succeed, it is likely that several school board members will receive a message at the next election. If the new members abandon the “year-round” scheme, the turnabout will be attributable to correction, not metamorphosis. Here the claim for transitional deference is at its nadir.Google Scholar

351 See Ely, Democracy and Distrust at 219 n.118 (cited in note 9).Google Scholar

352 See Gilmore, The Ages of American Law at 95 (cited in note 315).Google Scholar

353 The birth-control statute struck down in Griswold v. Connecticut, 381 U.S. 479 (1965), is a case on point. But see Ely, Democracy and Distrust at 219 n.118 (frequent attempts to repeal the Connecticut legislation were made and failed). I sense that Ely's suggestion that consensus against the enactment may not have existed may undervalue the magnitude of retentionist biases in the legislative process.Google Scholar

354 See generally Calabresi, A Common Law for the Age of Statutes.Google Scholar

355 But see id. at 114–16 (disclaiming any “serious” constitutional objection to the proposal). Compare Tribe, 57 Ind. L.J. at 523 & n.53 (cited in note 337) (legislative enactments are not mere pieces of a legal puzzle that judges may feel free to rearrange as they discern that what lawmakers once wanted was since grown obsolete).Google Scholar

356 But see Coffin, Frank M., The Problem of Obsolete Statutes: A New Role for Courts, 91 Yale L.J. 827, 838–39 (1982) (questioning workability of task Calabresi assigns to the courts).Google Scholar

357 The example offered in the text is based roughly on the Pennsylvania experience. The 1880 act as hypothetical; the 1980 one is not. Prior to 1980, Pennsylvania afforded the financially dependent spouse no right to alimony or property division on dissolution of a marriage. Because Pennsylvania is not a community property state, a party to a marriage was entitled, on dissolution, to take only that portion of property, real and personal, in which he or she had an ownership interest during marriage.Google Scholar

See Estate of Mathay, 463 Pa. 486, 499 n.13 (1975). The 1980 divorce reform legislation changed all that. Thereafter, courts were authorized in a divorce proceeding to “equitably divide, distribute or assign the marital property between the parties.” Such a division was to be made without regard to marital misconduct. Pennsylvania Divorce Code of 1980, P.L. 63, 410(d), 23 P.S. 401(d).Google Scholar

358 Although it might be argued that the legislation was not retroactive because it applied only to divorce proceedings commenced after the statute's passage, see Rothman, Rothman V., 65 N.J. 219, 231–32 (1974), the contention is unsound. See note 262.Google Scholar

359 The retroactive application of the statute described in note 357 was upheld against a constitutional challenge by a 4–3 vote of the Pennsylvania Supreme Court. See Bacchetta V. Bacchetta, 498 Pa. 227 (1982). I argued the companion case before the Pennsylvania Supreme Court. See Bank v. Bank, 498 Pa. 244 (1982).Google Scholar

360 The first of these prerequisites is simply an outgrowth of the presumption of prospectivity, a rule of construction that I heartily embrace in this context. Premandate impacts should be generally disfavored where prior statutes are being altered. Although I endorse remedial retroactivity in this limited arena as a curb on entrenchment by inertia, the intent to exercise this power ought to be express rather than implied. On the general usefulness of demanding legislative articulation of statutory goals as a means of ensuring accountability, see Eule, , 91 Yale L.J. at 457–59 (cited in note 9).Google Scholar

361 It may appear that what I am doing here is giving content to legislative silence (e.g., viewing the silence of the legislature as being consistent with the topography of its contemporary expressions), something I resisted in an earlier subsection. See notes 337–39 and accompanying text. But taking the opposite course would not avoid this dilemma. The alternative to my approach would be to view the recent legislative silence as acquiescence in the 1880 legislation. This would directly contradict my earlier justification for refusing to give voice to silence. The retentionist biases of our legislative process do not warrant viewing silence as an endorsement of the status quo. True, the failure to act leaves the existing statutory scheme in place, but the mere fact of nonrepeal—a legislative omission—is not enough to constitute ratification. When a subsequent legislature elects to retrospectively alter the statutory scheme, it must first assess whether doing so would be an impermissible premandate incursion or a justifiable dismantling of entrenchment attributable to the retentionist biases of the process. Professor Tribe acknowledges that silence may be examined in order to give historical context to the content of current legislative enactments. Tribe, , 57 Ind. L.J. at 529–31 (cited in note 337). I suggest that it may be used as well to assess the validity of the retrospective portions of such enactments.Google Scholar

362 Cf. Klutznick, Fullilove V., 448 U.S. 448 (1980) (generally governing principles outlawing racial classifications inapposite where Congress employs them to remedy past inequities).Google Scholar

363 There is an overlap here. To the extent that individuals rely on statutes that are out of phase with the legal topography, their expectations are more likely to be classified as irrational. Expectations premised on a statutory rule must be altered when the rule becomes patently obsolete. See Munzer, , 61 Tex. L. Rev. at 431–32 (cited in note 4) (expectations must be adaptive over time to be rational).Google Scholar