In the first post in this series, I talked about the downsides of writing abstract provisions in your constitution and having the supreme court enforce them. In this second part, I will talk about the downsides of writing more concrete provisions that the court cannot interpret as freely.
Beware Concrete Provisions
More concrete provisions suffer less from the problem of arbitrary enforcement - there is only so much a court can twist the words “trial by jury” or the mechanism for passing a law. They instead suffer from the problems of overspecificity or inflexibility.
Overspecificity is when a provision is worded too narrowly and becomes either outdated or circumvented by clever political actors. This is such a well-known problem that it is pretty rare, as legislatures avoid writing things into the Constitution that are likely to become outdated, and the Supreme Court interprets everything abstractly so that abusive political actors don’t circumvent them (and of course because judges love power). There are a few examples of excessively narrowly interpreted provisions, though. Congress has the power to declare war but the Supreme Court has provided no mechanism beyond “stop funding the military” to stop the president from taking military action outside of war, so all Congress can do is huff and puff. I imagine this is also an example of a provision becoming outdated, as military force used to require more mobilization and commitment before we had drones and troops stationed around the world, so it was not as plausible outside of formal war. Another example is from federalism, where in theory states have sole authority over things like education law, but Congress has de facto control by providing them funding dependent on upholding certain standards (see No Child Left Behind and Title IX). Whether these are good or bad depends on your political beliefs, but they are definitely unintended effects.
Inflexibility is when a provision just stops being helpful. Either society changes to the point that the provision does more harm than good, or it turns out that the people who wrote the provisions were just wrong to begin with.
It’s very rare for a provision to become entirely destructive. If the founders really meant the 2nd amendment to mean “everyone has the right to own a gun” then it is definitely an example, which even the Supreme Court has acknowledged because they allow for significant gun ownership regulation (despite the amendment providing no indication that the right is not absolute). The other example I can come up with from the US is prohibition, although its actual destructiveness is debatable, and its repeal showcases that the amendment process can serve as protection.
More common is either that there are reasonable exceptions to provisions that blanket statements don’t allow for, or that there is a better alternative that never gets adopted. I find the exceptions case less important. Sometimes the lack of exceptions makes it better to just make a provision a law, sometimes the mutability of a law is too easy to abuse, and we can argue until the cows come home which is more likely for a given provision. If you want arbitrary exceptions for rare cases, you can write in a broad “except under extraordinary circumstances” clause. If you don’t want arbitrary exceptions, you should probably say that explicitly, or else the Supreme Court will declare unwritten exceptions anyway (eg to free speech). In any case, the Supreme Court’s power over arbitrary exceptions isn’t usually the thing that leads to major problems.
The problematic case is when constitutional amendments lock in systems that turn out to be worse than alternatives. This is especially pernicious because it’s often hard to tell based on a country’s function that the system is suboptimal. Most Americans probably don’t even realize that there is an alternative to trial by jury or federalism.
Let me expound on trial by jury as an example. The American legal system is adversarial - two lawyers face off against each other and a jury decides who was more convincing. In many other countries - Germany, France, India - they have an inquisitorial system1, where there is no jury, and judges are responsible for doing most of the investigating (obtaining evidence, calling witnesses, etc.) and deciding to convict. Not having looked into the empirical evidence for these two systems, the theoretical case for the inquisitorial system seems stronger to me. Trial by jury and adversarialism is supposed to ensure that the state doesn’t go around arbitrarily imprisoning people. However, I would argue, it’s really not the jury system protecting against this. The judge still has important authority over admitting evidence, sentencing, and informing the jury of what the law says. What protects against arbitrary imprisonment is that there is a trial and that this trial follows proper procedure, which is ensured by trials being public and bad judges getting reprimanded or never appointed in the first place. Adversarial systems have many other drawbacks. Cases are stacked against the side that cannot afford good lawyers, they are long and expensive which leads to plea deals that imo aren’t really justice, and in general I’m guessing experienced judges are better at determining guilt than jurors. In fact, the U.S. actually uses inquisitorial trial for things like minor traffic infractions.
I’m not trying to convince you that inquisitorial legal systems are better. I’m trying to convince you that inquisitorial legal systems might be better, and that concrete seemingly-sensible provisions like trial by jury are sometimes suboptimal. Now, maybe it’s not really possible to abandon trial by jury at this point given how U.S. legal tradition revolves around it. But maybe it is, and maybe the evidence is or someday will be overwhelming in favor of inquisitorial systems. Was it really better to write juries into constitution rather than law? I don’t know.
In the next and final post in this series, I’ll talk about my recommendations, what I would put in a constitution if I were designing one from scratch.
Often places like these will have adversarial jury trials in case of severe crimes like murder