Section 15
Amendment by Interpretation
Peter Suber, Paradox of Self-Amendment Table of Contents

A. Judicial amendments

"Nay, whoever hath an absolute authority to interpret any written or spoken laws", Bishop Hoadly remarked, "it is he who is truly the Law Giver to all intents and purposes, and not the persons who first spoke and wrote them."[Note 1] That interpretation has a law-making effect is indisputable, although many would not take the principle as far as Hoadly did, denying the name of Law Giver even to the legislator. Even more than making law, however, interpretation can amend law, insofar as we distinguish these. Interpretation amends law whenever it qualifies unqualified language by finding an "implied" exception or limitation of scope, whenever it softens or limits qualifications in qualified language, and arguably whenever it departs from the original understanding of the legislators and public at the time the law was adopted. Filling gaps and silences may be distinguished from amendment if it is important to do so, although any law so "filled" is thereby changed from vague, general, inapplicable, or quiescent to specific on the point in question.

An inescapable consequence of the amending power of interpretation is that the supreme law, the constitution, is not utterly supreme so long as it is subject to authoritative interpretation.[Note 2] The United States Supreme Court has often acted in this super-supreme role,[Note 3] which may of course be wholly legitimate under the constitution itself. This opens the possibility that the supremacy of the constitution may underlie the constitution's liability to authoritative interpretation: that supremacy is self-amending.

It also opens the possibility that the supreme rule of change, the AC, could be changed by interpretation. That would obviously not constitute strict "self-amendment", but it could satisfy the need to avoid immutability by a method that does not require self-application of the AC.

One need not be a cynic to assert that courts, occasionally, apply statutes where legislators did not intend or foresee application, and that they refuse to apply statutes where legislators intended that they should be applied, that they fill gaps and silences with policy-making effect, and that they stretch, shrink, or directly abandon the "plain meaning" of statutes. Cynicism and partisan politics do not usually enter the picture until we ask whether these practices are inevitable or legitimate.

I will call these practices "judicial amendments" despite their very wide variety. This term avoids the broad connotation of unqualified "amendments" and the timidity of "quasi-" or "virtual" amendments. By this usage I do not mean to imply that the freedom to interpret, in whatever degree it actually exists for various courts, always results in amendment. I also mean to include whatever amendment can result from interpretation per se, not merely the obvious sort that can result from reinterpretation, overruling, gap filling, and policy-making.

Judicial amendments have many functions. Those most often cited are the need to apply general rules to particular facts and old rules to novel facts, to avoid unjust results by excluding a particular type of person or action from the scope of unqualified language, to reconcile inconsistent rules or provisions, to give effect to legislative intent over plain meaning or vice versa, to flesh out vagueness deliberately left by a divided legislature, to do the will of the people when the legislature will not, to adapt old rules to evolving standards of decency and new technologies and styles of life, to assuage popular dissatisfaction with existing law and hence to prevent disrespect for government, and to forestall violence and revolution.

The last few reasons may be summarized as the "safety valve" function of judicial amendments. Clearly if we read these functions as rationales, then they differ in their sufficiency, and one might add that their sufficiency just as clearly depends on historical circumstances. For example, Orfield suspects that the civil war might have been averted if the constitution had been easier to amend.[Note 4]

The safety valve rationale has an important effect on the method by which we measure the people's consent to be governed by the existing constitution. If there were no judicial amendments, then all dissatisfaction would be chanelled into legislative lobbying, attempts to amend the constitution, and very likely, violence. Hence the introduction of a (or another) safety valve or unofficial method of amendment reduces the pressure on other channels of change. One may note this functional side of judicial amendment independently of one's theory of the necessity or legitimacy of judicial amendment. The presence of judicial amendments, then, distorts our picture of the people's consent to be governed by the existing constitution, when that consent is measured primarily by their use and contentment not to use their AC (see Section 2).

Another chief justification of judicial amendment may be called the "equitable" rationale. As long as equity is recognized as relief from the oppressive application of laws, it will permit what practically amounts to judicial amendment. Equity in its strict historical sense does not enter the adjudication of constitutional questions, but the need to provide relief from the unjust results of mechanical application does arise.[Note 5] If courts at all levels have any responsibility to assure justice, then that obligation may conflict with their other obligation to apply and interpret the law.

The longest period in United States history in which no amendment was adopted through the federal AC was 61 years: from 1804 to 1865, between the Twelfth and Thirteenth Amendments. The second longest period was 43 years: from 1870 to 1913, between the Fifteenth and Sixteenth Amendments. These two periods alone comprise over half our history under the constitution, and in 1913 comprised nearly 85% of that history.[Note 6] This may show that contentment with the constitution has been high, that the amendment process has been too difficult, or that various safety valves including judicial amendments have made constitutional amendment comparatively unnecessary. Speaking of the longer of these two periods, McMaster has said,[Note 7]

It is almost incorrect to say that throughout this period [1804-65] the Constitution was unamended, for it was so expanded by the decisions of Marshall that they amounted to virtual amendments to its text.

Despite what may have been Marshall's —and Warren's— alterations of the constitution, the judiciary still enjoys sufficient confidence to operate effectively. It has not even seen its power of amendment by interpretation attacked by legislatures, except rhetorically, although serious reductions in that power have long been advocated by the right wing.

Lester Orfield believes that judicial amendments do ease the pressure for use of the AC. They "may be made to cover most problems that arise", but if the procedure under the AC is too difficult, then judicial amendments may too easily become "strained interpretations causing loss of confidence in the judiciary."[Note 8] Edward Corwin goes further and declares that the "main business of constitutional interpretation...is to keep the constitution adjusted to the advancing needs of the time."[Note 9] Orfield and Corwin tell us in effect that judicial amendments are effective and obligatory methods of adaptation to changing circumstances. The appeal to effectiveness is much more common than the appeal to obligation. Most of those who argue that judicial amendments are effective at keeping the constitution up to date are glad that the method exists; few regret it, and few will say that it is obligatory. Frederick Davenport typifies the proponents who stop short of finding judicial amendment obligatory:[Note 10]

[The constitution] has thus far adapted itself remarkably well to the exigencies of our national life. It has proved to be a living, flexible constitution, and its flexibility has been determined more than anything else by the flexibility of mind of the Federal Supreme Court, by the changing philosophy, background, and human nature of the members of the Court.

A stronger statement, almost disclaiming the question of legitimacy, is that of Francis H. Heller:[Note 11]

Have the really important changes been accomplished by the article V amendment process or have they come about by judicial review? It would be idle to argue the point: the landmark decisions of the Supreme Court have done more to adapt the nation to change than has any amendment.

Frederic Coudert argues that the danger of an unwritten constitution is abuse of power by an ineffectively limited government, that the dangers of a written constitution are rigidity and violence triggered by slow and difficult change, and that our system of judicial amendment allows us to escape both dangers.[Note 12] C.P. Patterson believes the power of judicial amendment does not provide the best of both worlds, as Coudert argued, but gives the Supreme Court "the same relation to our Constitution that the English Parliament has to the English Constitution."[Note 13]

On the other hand many will admit the reality of judicial amendment only to criticize its wisdom or legitimacy. Writing in 1953, John C. Scatterfield remarked,[Note 14]

Watching the judicial trends of the last quarter century has caused many of us to feel that the Constitution of the United States, 'like an old soldier, will never die, it only fades away.'

Scatterfield represents a conservative school of jurisprudence that upholds the exclusivity of the AC, a limited role for courts, and the weak self-entrenchment of all law (binding until properly changed, changeable only by its own procedures). Scholars, by and large, have left this view behind. The authority of the original understanding of the text of the constitution, and even the coherence of the idea, has received less and less respect over the years, until now Paul Brest can argue that[Note 15]

the practice of supplementing and derogating from the text and original understanding is itself part of our constitutional tradition.

Courts need not avail themselves of the power of judicial amendment that has accrued to them, principally, in the last half-century. Often they do not. They may decline as calmly as the court in Maffie v. U.S., 209 F.2d 225, 227 (1954): If the Fifth Amendment privilege against self-incrimination is thought

outmoded in the conditions of the modern age, then the thing to do is to take it out of the Constitution, not to whittle it down by the subtle encroachments of judicial opinion.

Or it may wind up and reaffirm exclusivity in the name of the people, as the West Virginia Circuit Court of Appeals did in In Re Assessment of Kanawha Valley Bank, 144 W.V. 346, 109 S.E.2d 649, 673 (1959):[Note 16]

This court does not have the power to amend, alter, or repeal any provision of the Constitution of this State. That is a prerogative that the people have reserved to themselves alone. It is within our power, though, and our paramount duty, to prevent others from amending or repealing any part of the organic law of this State except in the manner provided in the document itself.

The modern agreement that judicial review can have an amendatory effect hides some difficult questions of theory. Does judicial amendment presuppose a violation of binding precedent or legislation?[Note 17] Is it logically possible for a Supreme Court ruling to be unconstitutional?[Note 18]

If even formal amendments are powerless to divest citizens of vested rights, then can an interpretation do so on the ground that the right was never "actually" vested?[Note 19] If so, then perhaps judicial amendments possess even more power than the AC.

B. Judicial self-amendment

The reason that judicial amendment of the AC is not self-amendment is simply that no power is used to modify itself. But conceivably the power of judicial amendment may modify itself. The most splendid example is undoubtedly London Street Tramways Co. Ltd. v. The London City Council (1898) A.C. 375.[Note 20] For centuries the English parliament had followed its own precedents. It therefore had abundant precedent to follow precedent, which was a good reason to continue, but it had no explicit rule of law that said it must follow precedent. In London Street Tramways Parliament was asked, in essence, to reverse an earlier opinion. In ruling that it should not reverse itself, Parliament articulated for the first time as holding (not merely dictum) that as a judicial body it is bound by its own precedents.

The self-amendment has not yet occurred, although something else of reflexive importance has occurred. The new rule of law that Parliament is bound by its own precedents is merely a decision of case law. Hence the only force it can exert on future decisions is that of a precedent. Hence, the rule to follow precedents was self-justifying. As long as precedents were respected, London Street Tramways would require us to respect precedents. If a court ever decided to reject precedents, London Street Tramways would not stand in its path, for it is only a precedent. If you believe that witches always lie,[Note 21] then you will not believe a witch who tells you that you are wrong. In that sense, the holding was logically superfluous even if it articulated an important rule of law.

Self-amendment occurred when London Street Tramways was overruled! In the Hansard Report (July 26, 1966), Lord Gardiner announced the self-amendment of the power of judicial amendment or the reversing of precedent in order to permit the reversing of precedent. The rationale was to preserve the omnipotence of Parliament. If Parliament could not "depart from a previous decision when it appears right to do so" then an accumulation of bad judgments could seriously limit the power of Parliament and consequently undermine its sovereignty. The overruling of London Street Tramways asserted in effect that Parliament had continuing omnipotence, for it had rendered a limitation on its power revocable. The proof is stronger because the limitation on its power was by its original nature irrevocable —that is, in its own terms, London Street Tramways could not be overruled without violating the law. The effectiveness of the overruling shows that Parliament really had continuing omnipotence, not merely that it strove to have it. The most interesting point is that it might not have had it until it reached for it, acquiring it by self-amendment.

There are no American cases of the self-amendment of the power of judicial amendment that are nearly so dramatic. But there are many ways in which judicial self-amendment can arise in the United States.

For example a Supreme Court composed of new, conservative appointees may exercise its customary power of judicial amendment to limit its future use. It might do so by using the power of judicial amendment to set precedents adverse to its future use (adverse in their holding or dicta, not in their method) and by selectively overruling the decisions that support its use. Such self-amendment could not become strongly paradoxical unless the self-limiting exercises of the power could plausibly be seen to affect their own validity, not merely the validity of bygone instances and future lapses. But the right and duty to interpret, which is inseparable from adjudication, seems to give all otherwise valid judicial pronouncements a modicum of license that preserves them from self-invalidation. That is, judicial use of judicial amendment could limit its future use, but could probably not destroy itself utterly, and could not in any case prevent its use so completely that the preventive judgment was itself prevented. Of course this view of the matter presupposes that, to some extent (which may be tiny indeed) judicial amendment is inevitable as long as interpretation itself is permitted.

The self-amendment of the power of judicial amendment might occur in another way. A recent strategy of the radical right in the United States is to attempt to limit the jurisdiction of federal courts over issues, such as school prayer and homosexual rights. If Congress passed such a bill, it would attempt to repeal a rule of change for the constitution which, if permitted, would show a reflexive wrinkle in the hierarchy of the federal government. If the limitation was challenged in federal court, then the forum would be put to the choice of (1) upholding a limitation on its power, which implies either a measure of superiority to the limitation or self-amendment, (2) modifying or nullifying the limitation, which in the right circumstances could be the self-amendment of the power of judicial amendment, or (3) refusing to hear the case as injusticiable, a political question, beyond its jurisdiction, or something else. We may assume that the Supreme Court could not take the third option except in cowardice. If the statute limiting federal court jurisdiction were self-entrenched, denying the jurisdiction of federal courts even to review its constitutionality,[Note 22] then the Supreme Court could still take jurisdiction. Taking and not taking jurisdiction in such a case would both amount to a partial decision on the merits prior to a full hearing on the merits. Seeing itself obliged to "know before it knows" (see Section 20) in either case, it could take jurisdiction in order to be able to decide more of the issues on their merits than otherwise, and even in principle to undo its original "error" by dismissing for lack of jurisdiction.

If Congress has the power to limit federal court jurisdiction, then a federal court nullification of the limitation would be a case of judicial power rendering its limitations revocable, a feature of continuing omnipotence. If the power of judicial amendment had continuing omnipotence, then Congress would not have the power to limit it. So if Congress did have the power and courts nevertheless did nullify the limitation, then the power of judicial amendment would have increased itself by self-amendment, much like Parliament in reversing London Street Tramways.

If the limitation was of dubious constitutionality, then a federal court nullification might be construed as a much weaker type of judicial amendment —merely the settling of a previously unsettled question.

A final sense in which the power of judicial amendment may amend itself derives from the finality of Supreme Court decisions, subject only to overruling by formal amendment, subsequent overruling by the Court itself, or another of the unofficial methods of amendment. Against a movement to abolish the power of judicial amendment, courts would have the power to protect themselves up to a point. If courts precipitate a crisis, then their self-serving decision will not have the desired effect. But we should not underestimate the ability of judges to make their acts of judicial amendment sound like inevitable consequences of universally acknowledged principles of existing law.

This type of self-amendment may be clarified by a distinction. Judicial review may make the final decision of the highest court "legal" per se; but on the other hand, the rules that constitute the judiciary and the rules it interprets may allow us to consider some final decisions of the highest court "illegal". In the formal case, courts may always protect their prerogatives by throwing up legally valid rules superior to any that might repeal them, including formal amendments. In the latter case, courts might in some cases be protecting their prerogatives only by revolutionary acts that are subsequently accepted. Courts that have enjoyed respect in the past will not find it difficult to make their revolutionary decisions look as valid as their lawful decisions,[Note 23] which will contribute greatly to their subsequent acceptability. But under the acceptance theory, the best reasons may fail to win actual acceptance, while the flimsiest succeed. The distinction between legal and illegal decisions is blurred by the power of acceptance contingently to validate or invalidate any decision regardless of its conformity to prior law. The distinction retains some firmness only because conformity to prior law is a major influence on actual, contingent acceptance.

Less dramatic, but logically similar, types of self-amendment of the power of judicial amendment occur whenever a court overrules or modifies rules pertaining to its jurisidction, especially when the old or new rule of jurisdiction might have affected the case in which the new rule was announced. One might even argue that judicial review itself, hence also judicial amendment, was seized by federal courts in Marbury v. Madison in an act of judicial amendment (hence, self-amendment). In all these cases, self-amendment may be objectionable as usurpation, opportunism, or political grasping, but not as paradox or the self-application of a rule of change.

Note, however, that judicial amendment cannot always be explained as usurpation or its variants. Even if one disbelieves that a power of judicial amendment is inherent in judicial powers of interpretation, application, and review, one may point to "innocent" causes such as good faith error of law, good faith disagreement between courts over time, circular majorities within single courts, and the changing membership of courts. The latter is a favorite theme of the legal realists who believe that the decisions of a court are the products of the personal moral and political preference of judges, disguised by legalistic rationalization. Even if one denies legal realism in general, impressive empirical evidence exists that the social and economic background of judges correlates with their opinions on a wide range of controversial cases.[Note 24]

If one wishes to minimize the risk of abuse and usurpation in judicial amendment, one may insist that it be kept unofficial and surreptitious, forcing judges to disguise it with legalistic rationalization —which one hopes will not always be easy. Similarly, the power of a jury to nullify the law is lawful, even venerable, but is kept infrequent in practice by the device of jury instructions that, in effect, declare their own exclusivity. This raises serious doubts about the rigidity of the distinction between official and unofficial rules of change.[Note 25]

Judicial amendment of the AC may not be strict self-amendment, but has it ever occurred? Every time part of a state AC is struck down for violating the federal constitution, judicial amendment of an AC may have occurred. However, such nullification would only comprise judicial amendment in any significant sense if the violation of the federal constitution were doubtful or clearly invented. Filling gaps and silences in ACs is also common, but not a strong type of judicial amendment.

One of the few cases in which a court seems to have changed the terms of an AC by interpretation was In Re Todd, 208 Ind. 168, 193 N.E. 865 (1935). The Indiana constitution stated that amendments are adopted when they receive the affirmative votes of a "majority of the electors". For 83 years this phrase was interpreted by mean the majority of the electors eligible to vote. The Todd court changed the interpretation to the majority of those voting on the amendment. A subsequent case, Swank v. Tyndall, 266 Ind. 204, 221, 78 N.W.2d 535, 542 (1948) declared that the holding of Todd "in substance amounted to a change in the Constitution itself", and refused to apply the Todd rule retroactively.

Notes

1. Benjamin Hoadly, Bishop of Bangor, "Sermon Preached Before the King," 1717, p. 12. I have not been able to find a more complete citation for this famous remark. This form is taken from John Chipman Gray, The Nature and Sources of Law, Macmillan, 2d ed., 1921, at p. 125. [Resume]

2. The power of judges to change rules of law is unquestioned for the rules of common law, although specifying just when modification or overruling is permitted by stare decisis is difficult. See Richard A. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification, Stanford University Press, 1961, Chapters 3 and 4; and Peter Suber, "Analogy Exercises for Teaching Legal Reasoning," Journal of Law and Education, 17, 1 (Winter 1988) 91-98. However, even if stare decisis is not fully applicable to constitutional adjudication, which is often heard, judges have similar powers to interpret, apply to concrete circumstances, and in a broader sense, to qualify and modify to whatever extent is acceptable or accepted. A theory of constitutional adjudication may limit these powers, but the legality of the powers is not found in theories but in the history of what has been held lawful. Also like common law judges, judges who interpret the constitution can obviously change the law by reinterpretation to the extent that, as Edward Corwin put it, "the constitution is the judicial version of it —constitutional law." Edward Corwin, "Constitution v. Constitutional Theory: The Question of the States v. the Nation," American Political Science Review, 19 (1925) 290-304, at p. 303. [Resume]

3. See e.g. Frederic R. Coudert, "Judicial Constitutional Amendment, as Illustrated by the Devolution of the Institution of the Jury from a Fundamental Right to a Mere Method of Procedure," Yale Law Journal, 13 (1904) 331-65. The theme was very common during the New Deal era. See e.g. Thomas M. Steele, "Re-Making the Constitution," Connecticut Bar Journal, 7 (1933) 102-28; Frederick M. Davenport, "The Supreme Court Makes the Constitution March," Boston University Law Review, 14 (1934) 752-65; Charles S. Collier, "The Expanding Meaning of the Constitution," Wisconsin Law Review, 11 (1936) 323-45; D.R. Richberg, "Need for Constitutional Growth by Construction or Amendment," Kentucky State Bar Association, [no vol. no.] (1936) 165-84, with a commend by R.E. Desverine, ibid. 185-205; Roscoe Pound, "The Constitution: Its Development, Adaptability, and Future," American Bar Association Journal, 23 (1937) 739-45; H.W. Anderson, "The Constitution: An Expanding Chart of Government," Boston University Law Review, 18 (1938) 491-510; K.J. Hogan, "Important Shifts in Constitutional Doctrine," John Marshall Law Quarterly, 4 (1939) 554-79; Thomas Reed Powell, "A Constitution for an Indefinite and Expanding Future," Washington Law Review, 14 (1939) 99-117; H.W. Willis, "The Part of the United States Constitution Made By the Supreme Court," Iowa Law Review, 23 (1938) 165-214; H.W. Willis, "Constitution Making by the Supreme Court Since March 29, 1937," Indiana Law Journal, 15 (1940) 179-201; and C.P. Patterson, "The Supreme Court: Declarer or Amender: The Adaptation of the Constitution by the Supreme Court," Brooklyn Law Review, 10 (1940) 48-75. Since the New Deal era the fact of judicial amendment has become commonplace, and the debate has shifted from its occurrence to its desirability and legitimacy. A recent work arguing against its use is Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Harvard University Press, 1977. A casebook has been assembled to illustrate the operation of judicial amendment: Joel B. Grossman and Richard S. Wells, Constitutional Law and Judicial Policy-Making, John Wiley and Sons, 1972. [Resume]

4. Lester Bernhardt Orfield, Amending the Federal Constitution, University of Michigan Press, 1942, p. 210. See similar views quoted near the beginning of Section 2.A above. [Resume]

5. A strong argument that rigorous adherence to rules must always be superseded by justice is Noel Dermot O'Donoghue, "The Law Beyond the Law," American Journal of Jurisprudence, 18 (1973) 151-64. In the same volume of the same journal, Conrad Johnson argued, similarly, that judges must choose between acting like legislators and perpetuating injustice. "The Rule of Law and the Closure of the Legal System," 18 (1973) 35-56. [Resume]

6. See Robert G. Dixon Jr., "Article V: The Comatose Article of our Living Constitution," Michigan Law Review, 66 (1968) 931-48. The record among the states is very different, if only because amendment is generally easier in the states. Francis Heller observes that before 1971, California had amended its constitution 375 times, South Carolina 398 times, Louisiana 496 times, and Georgia 691 times. Francis H. Heller, "Article V: Changing Dimensions in Constitutional Change," University of Michigan Journal of Law Reform, 7 (1973) 71-89. T.C. Chadick has calculated that, on average, Texas has amended its constitution once every six months and five days. T.C. Chadick, "Check-Up on Constitutional Revision," Texas Bar Journal, 31 (1968) 205-08. [Resume]

7. "Report of a Committee of the New York State Bar Association, 1890," Reports of the NYBA, vol. 13, p. 140. Quoted in Shalers, United States, vol. II, p. 500. [Resume]

8. Lester Bernhardt Orfield, Amending the Federal Constitution, University of Michigan Press, 1942, at pp. 214-15. On Orfield's latter point, see Coudert, op. cit. at pp. 364-65: if the procedure of the AC becomes too difficult, judicial amendment will become more prominent; but if judicial amendment becomes too prominent or too easy, "the foundation of our government, —respect for the constitution— will be sapped." [Resume]

9. Corwin, op. cit. at p. 303. [Resume]

10. Davenport, op. cit. at p. 752. [Resume]

11. Heller, op. cit. at p. 75. See Paul G. Kauper, "The Alternative Amendment Process: Some Observations," Michigan Law Review, 66 (1969) 903-20, at p. 917. [Resume]

12. Courdert, op. cit. at p. 335. [Resume]

13. Patterson, op. cit. at p. 54. [Resume]

14. John C. Scatterfield, "Constitutional Amendment by Treaty and Executive Agreement," Mississippi Law Journal, 24 (1953) 280-94, at pp. 293-94. Scatterfield's work will be discussed more thoroughly in Section 17, below. [Resume]

15. Paul Brest, "The Misconceived Quest for the Original Understanding," Boston University Law Review, 60 (1980) 204, at p. 225. [Resume]

16. Cf. Stoliker v. Waite, 359 Mich. 65, 101 N.W.2d 299, 305 (1964), and Knapp v. O'Brien, 288 Minn. 103, 179 N.W.2d 88, 90 (1970). [Resume]

17. To this question Oliver Wendell Holmes seems to have given a negative answer in The Common Law, Little, Brown, and Co., 1881, at p. 36:

[A]s the law is administered by able and experienced men, who know too much to sacrifice good sense to a syllogism, it will be found that, when ancient rules maintain themselves in the way that has been and will be shown in this book, new reasons more fitted to the time have been found for them, and that they gradually receive a new content, and at least a new form, from the grounds to which they have been transplanted.

Holmes then calls for a "more conscious recognition of the legislative function of the courts." Ibid. [Resume]

18. See Patterson, op. cit. at p. 54:

[T]here is such a thing as an unconstitutional decision of the Supreme Court, but it should be considered that it, like an unconstitutional act of the Congress, before it has been declared unconstitutional, has the force of law until it is reversed by the court or repealed by a constitutional amendment.

One may ask how this principle differs from the apparently simpler statement that Supreme Court decisions, like other laws, are valid until amended or repealed. See Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921, at p. 129:

Judges have, of course, the power, though not the right, to ignore the mandate of a statute [or constitutional rule]....None the less, by that abuse of power, they violate law. If they violate it willfully...they commit a legal wrong...even though the judgment which they have rendered stand. [Resume]

19. This issue is addressed in Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576, 591 (1975) by the Louisiana Supreme Court using the rules of Louisiana (French) Civil Law.

Moreover, interpretive legislation cannot properly be said to divest vested rights, because, under civilian theory, such legislation does not violate the principle of non-retroactivity of laws. The interpretive legislation does not create new rules but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties.

This principle begs the question by assuming that the rights were not actually vested at the time of the later, interpretive act. So it does not answer the question whether reinterpretation can divest vested rights, except possibly by saying, "yes, but under another name." [Resume]

20. See Salmond on Jurisprudence, 11th ed. by Glanville Williams, Sweet and Maxwell, 1957, at pp. 187f, and 12th ed. by P.J. Fitzgerald, Sweet and MAxwell, 1966, at pp. 118f; A.W.B. Simpson, "The Ratio Decidendi of a Case and the Doctrine of Binding Precedent," in G.G. Guest (ed.), Oxford Essays in Jurisprudence, Oxford University Press, 1961, Chapter VI; Roy L. Stone-de Montpensier, "Logic and Law: The Precedence of Precedents," Minnesota Law Review, 51 (1967) 655-74; John H. Langbein, "Modern Jurisprudence in the House of Lords: The Passing of London Street Tramways," Cornell Law Review, 53 (1968) 806-813. [Resume]

21. I deliberately use witches rather than Epimenides or more classical liars familiar to philosophers and logicians. The reason is that the theory that witches always lie caused serious paradox and consternation during the 17th witch trials, and particularly in the trial of Urbain Grandier in 1634. These cases brought the liar paradox into law. Richard Popkin believes that the paradoxes of taking the testimony of accused witches led Descartes to formulate the famous Demon argument in the Meditations. Richard H. Popkin, The History of Scepticism from Erasmus to Spinoza, University of California Press, 1979, at pp. 180-81. [Resume]

22. A self-entrenchment clause need not forbid its own amendment; it may forbid its own review instead. A troublesome example is Section 3 of the (English) Parliament Act of 1911, which permits some bills to be adopted by the Queen and House of Commons without the consent of the House of Lords, and which bars judicial review of all such acts. Whether the entrenched character of such bills helps them overcome paradox in the (proposed and debated) task of abolishing the House of Lords is considered by Peter Mirfield, "Can the House of Lords Lawfully Be Abolished?" Law Quarterly Review, 95 (1979) 36-58, esp. 49. Mirfield concludes that the House of Lords cannot lawfully be abolished. His arguments are challenged by George Winterton, "Is the House of Lords Immortal?" Law Quarterly Review, 95 (1979) 386-92. [Resume]

23. Similarly, a jury may depart from a judge's instructions and still make its verdict appear consistent with them. As Harry Kalven and Hans Zeisel put it, "The jury, therefore, is able to conduct its revolt from the law within the etiquette of resolving issues of fact." The American Jury, Little, Brown, and Co., 1966, at p. 165. [Resume]

24. See e.g. Joel B. Grossman, "Social Backgrounds and Judicial Decision-Making," Harvard Law Review, 79 (1966) 1551-64, who cites many earlier studies. Among cases where the correlation was statistically significant, a 1961 study found that Republican judges were more likely than Democrat judges to oppose

the defense in criminal cases...administrative agencies in business regulation cases...the claimant in unemployment compensation cases...the finding of constitutional violation in criminal cases...the government in tax cases...the tenant in landlord-tenant disputes...the consumer in sales of goods cases...the injured party in motor vehicle accident cases, and the employee in employee injury cases.

Ibid. at p. 1556-57. Note that Grossman is co-editor with Richard S. Wells of a casebook focusing on judicial amendment, op. cit. [Resume]

25. Kalven and Zeisel, op. cit. at p. 498:

Perhaps one reason why the jury exercises its very real power [to depart from binding law] so sparingly is because it is officially told that it has none.

See Mortimer R. Kadish and Sanford H. Kadish, Discretion to Disobey: A Study of Lawful Departures From Legal Rules, Stanford University Press, 1973, at p. 65:

[A]n explicit statement that the jury may invoke their own values, even if put in terms of the highly exceptional case, would reduce the impact of the judge's instructions on the law and invite jury nullification on a greater scale.

One is reminded of similar reasoning in the Reagan administration by which pregnant women should not be informed of their constitutional right to an abortion in clinics receiving federal funds. [Resume]

This file is one section of the book, The Paradox of Self-Amendment. Return to the Table of Contents.

Peter Suber, Department of Philosophy, Earlham College, Richmond, Indiana, 47374, U.S.A.
peters@earlham.edu. Copyright © 1990, Peter Suber.