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The Case for “Constitutional Backdrops”

• August 29, 2012 • 4:12 pm

In the last few decades, the Supreme Court has increasingly relied on legal theories–especially originalism–that put heavy emphasis on the Constitution’s text. One common criticism of these theories, though, is that the text leaves too many important questions unanswered. Can the Houses of Congress punish citizens for contempt? Can the President remove executive officers? Can federal courts give stare decisis effect to past decisions? Can ordinary citizens sue sovereign states? These questions weren’t answered in the text, at least not clearly. And while we sometimes find answers in Founding-era legal history, it’s not clear why these answers should still control today, if the Founders couldn’t be bothered to write them down and enact them as law.

In a new article forthcoming in the George Washington Law Review, I argue that the answers to these questions may lie outside the text — and that originalists, as well as others, should be OK with that. The Constitution wasn’t written on a blank slate, but left most of American law in place, and sometimes protected some of that law against future change. For instance, the rules that govern state borders, such as how the borders move when a river changes course, surely aren’t in the Constitution. But Congress likely can’t change them, at least with respect to existing borders, without the consent of the states involved under Article IV. Similarly, there might be law on other topics that doesn’t come from the Constitution, but that the Constitution doesn’t let us change. From my paper’s abstract:

This Article describes a category of legal rules that weren’t adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These are constitutional “backdrops”: rules of law that aren’t derivable from the text, but are left unaltered by the text, and are in fact protected by the text from various kinds of legal change. These rules may have been incorporated by reference; they may have been insulated from change by the usual political actors; or they may have been preserved as “defeaters” for the Constitution’s defeasible language. In each case, the text requires that the rules be given force, even though it doesn’t supply their content.

Backdrops are not only a legitimate category of legal rules, but a surprisingly important part of our legal system. Moreover, recognizing backdrops as a category may help shed light on otherwise insoluble disputes.

I had the honor of presenting the paper at the last Originalism Works-in-Progress Conference in San Diego; the next conference will be held in February.