Faculty Bibliography
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In his symposium article, Vermeule sets out to turn the contemporary social choice insight about legislatures to the service of criticizing the basic prescriptive project of advising courts as to how best to interpret ambiguous statutes. Essentially, Vermeule argues, the same problems that bedevil the modern legislature will also vex the multi-member institution that is the federal judiciary. By making the "fundamental mistake of overlooking the collective character of judicial institutions," interpretation theorists miss out on the relevant complexities of judicial behavior and thereby risk misaligning their theories with the real world. This need not be, however, the end of the road for a normative theory of judicial decision in general or statutory interpretation in particular. Non-ideal theory, which we take to represent theory that embraces the messiness of the collective legislative and judicial processes, can assist courts in interpreting statutes. Such assistance, for reasons Vermeule explains in detail, must be humble, targeted, and incremental. More generally, Vermeule suggests that the "fallacy of division," to which many ambitious interpretation theorists are prone, provides a false scaffold for dynamic and democracy-forcing theories of constitutional and statutory interpretation. He provides another set of reasons for skepticism about these influential views and, thereby, invites us to think afresh about intentionalism, a theory widely associated with more "conservative" approaches to discerning statutory meaning.
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Editors' Symposium: What is Legal Interpretation. We may distinguish three styles or strategies of decisionmaking. Under a maximizing approach, the decisionmaker chooses the action whose consequences are best for the case at hand (defining "best" according to some value the decisionmaker holds). Where decisionmakers choose the action that is best relative to constraints, accounting for the direct costs and opportunity costs of decisionmaking, we may call the approach optimizing rather than maximizing. Whereas the maximizer focuses only on the case at hand, the optimizer acts so as to maximize value over an array of cases. In contrast to both approaches, satisficing permits any decision whose results in the case at hand are good enough - although satisficing, like optimizing, may itself represent an indirect strategy of maximization. In this brief essay, I apply these distinctions to legal interpretation. Many approaches to the interpretation of statutes and the Constitution are maximizing approaches that attempt to produce as much as possible of some value the interpreter holds - for example, fidelity to legislative intent or original understandings. Optimizing approaches to interpretation condemn maximizing interpretation as a simpleminded approach that neglects the costs of decisionmaking and the costs of interpretive error. An alternative to both maximizing and optimizing approaches is a satisficing style of interpretation, in which interpreters eschew the search for the very best interpretation (even within constraints), instead selecting an interpretation that is good enough, in light of whatever value theory the interpreter holds. I criticize the maximizing style of interpretation and praise its two competitors. Both the optimizing and satisficing perspectives help to justify some controversial principles of statutory and constitutional interpretation, such as the rule barring resort to legislative history where statutes have a plain meaning, and clause-bound (as opposed to broadly holistic or "intratextualist") interpretation of statutes and the Constitution. Although maximizing interpretation is untenable, neither the optimizing approach nor the satisficing approach is globally best; each is an attractive decision-procedure in some contexts. Where the interpretive stakes are either very low or very high, satisficing is reasonable (whether or not rational in some stronger sense), while optimizing is best suited to medium-stakes decisions.
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The federal constitution contains a set of rules that I will describe as the constitutional law of congressional procedure. These are rules that regulate the internal decisionmaking procedures of Congress; absent specific constitutional provision, they would be subject to the authority of each House to "determine the Rules of its Proceedings." The constitutional law of congressional procedure encompasses the long catalogue of provisions in Article I, Section 4-5, which includes rules for assembling the legislature, selecting its officers, and disciplining its members; voting and quorum rules; rules governing the transparency of deliberation and voting; and a range of other provisions. It also encompasses other important rules scattered elsewhere in Articles I and II, such as the Origination Clause, special quorum rules for supermajority voting, and the special procedures for overriding a presidential veto. The constitutional law of congressional procedure has rarely been analyzed as an integrated body of rules, largely because of historical quirks in the relevant sectors of political science and constitutional law. The article's project is to examine this body of rules as a unified topic that is central to the constitutional design of legislative power. The project is instrumental and prescriptive; the article asks how the Constitution's rules of congressional procedure might be structured to advance a congeries of widely-shared aims. The relevant rules should, among other things, promote congressional deliberation that is well-informed and cognitively undistorted, minimize the principal-agent problems inherent in legislative representation, and encourage technically efficient use of constrained legislative resources, especially time. The difficult enterprise is not stating the aims to which well-designed legislative procedure should conduce, but rather negotiating the inevitable tradeoffs between and among them. Part I surveys the methodological problems that constitutional framers designing legislative procedure must confront, especially the key problem whether and when rules of legislative procedure should be promulgated in the Constitution itself, or instead be committed to the discretion of future congresses through a general grant of rulemaking power. Part II considers in turn the timing of congressional sessions, the admission and expulsion of legislators, the selection of legislative officers, voting and quorum rules, the transparency of legislative deliberation and voting, the rule barring the Senate from originating revenue bills, and the question whether Congress may enact binding statutes that prescribe internal rules for the two Houses taken separately. This Part also considers rules of legislative procedure that appear in state and foreign constitutions, and whose absence from our own itself poses interesting puzzles. Examples are rules requiring three readings before a bill may be enacted, and rules that bar the introduction or enactment of bills at the close of the legislative session. Throughout Part II, the aim is to identify design defects, to evaluate alternatives and innovations found in state and foreign constitutions, and to propose interpretive choices or constitutional reforms that might improve the constitutional law of congressional procedure.
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Theorists of transitional justice study the transition measures used, or eschewed, by new democracies that succeed communist or authoritarian regimes - measures including trials, purges, lustration, reparations, and truth commissions. The theorists tend to oppose transitional measures, portraying them as illiberal and as a distraction from the task of consolidating new democracies. In this Article we argue against that view. The critics of transitional justice have gone wrong by overlooking that transitional measures are common in consolidated legal systems, which themselves constantly undergo political and economic shocks resulting in transitions of greater or lesser degree. Ordinary justice has developed a range of pragmatic tools for managing transitions. Consolidated democracies use trials, purges and reparations to accomplish valuable forward-looking goals without allowing illiberal repression; new democracies can and should use those tools also. Because transitional justice is continuous with ordinary justice, there is no reason to treat transitional-justice measures as presumptively suspect, on either moral or institutional grounds.
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There are two main views about the proper role of the Constitution during national emergencies. We label them the "accommodation" view and the "strict" view. The accommodation view holds that the Constitution should be relaxed or suspended during an emergency. The strict view holds that constitutional rules are not, and should not be, relaxed during an emergency. The Constitution should be enforced "strictly" so that both civil liberties and government interests, such as national security, can be appropriately balanced. In this paper we critique the strict view. Defenders of the strict view have proposed two major rationales for their position. The first is institutional: emergencies work like a ratchet, so that constitutional protections are reduced in emergencies, while after the emergency is over the enhancement of constitutional powers is either maintained, or not fully eliminated. The second rationale is psychological: during an emergency, people panic, and when they panic they support policies that are unwise and excessive. Relaxation of constitutional protections would give free rein to the panicked reaction, when what is needed is constraint. The ratchet theory and the panic theory have become fixed points in the debate about emergency powers, yet have escaped rigorous analysis. As we will show, both theories suffer from insuperable conceptual, normative, and empirical difficulties. The ratchet theory lacks a mechanism that permits constitutional powers to rise and prevents them from falling, and makes implausible assumptions about the rationality of individuals who consent to constitutional changes during emergencies. The panic theory assumes that people can, while panicked, get outside themselves and constrain their own fear. Although people and officials panic, we have found little evidence that constitutions or other laws or institutions can control the panic, and cause people to lose their fear, or else choose, while panicked, laws that they would choose if they were not panicked. Finally, defenders of either theory do not examine their normative premises sufficiently: it is not clear that panics and ratchets, if they occur, are bad.
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To evaluate theories of interpretation, it is necessary to focus on institutional considerations - to ask how actual judges would use any proposed approach, and to investigate the possibility that an otherwise appealing approach will have unfortunate dynamic effects on private and public institutions. Notwithstanding this point, blindness to institutional considerations is pervasive. It can be found in the work of early commentators on interpretation, including that of Jeremy Bentham; in the influential work of H.L.A. Hart, Ronald Dworkin, and Henry Hart and Albert Sacks; and in much contemporary writing. This blindness to institutional considerations creates serious problems for the underlying theories. The problems are illustrated with discussions of many disputed issues, including the virtues and vices of formalism; the current debate over whether administrative agencies should have greater interpretive freedom than courts; and the roles of text, philosophy, translation, and tradition in constitutional law. In many cases, an understanding of institutional capacities and dynamic effects should enable diverse people, with different views about ideal legal interpretation, to agree on what actual legal interpretation should entail.
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Adrian Vermeule, Three Commerce Clauses? No Problem, 55 Ark. L. Rev. 1175 (2003).
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There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds, it is clear that the Court sees the principle as a constitutional axiom. When cashed out in terms of constitutional doctrine, the principle means that legislatures may not enact entrenching statutes or entrenching rules: statutes or rules that bind the exercise of legislative power, by a subsequent legislature, over the subject matter of the entrenching provision. Judges have applied this rule of constitutional law in various settings, and the academic literature takes the rule as given, universally assuming that legislative entrenchment is constitutionally or normatively objectionable. The goal of the academic literature has been to supply the definitive rationale for the rule, although the theorists' favorite rationales are all different. Our claim is that the rule barring legislative entrenchment should be discarded; legislatures should be allowed to bind their successors, subject to any independent constitutional limits in force. The rule has no deep justification in constitutional text and structure, political norms of representation and deliberation, efficiency, or any other source. There just is no rationale to be found; the academics have been on a fruitless quest. Entrenchment is no more objectionable in terms of constitutional, political, or economic theory than are sunset clauses, conditional legislation and delegation, the creation, modification, and abolition of administrative agencies, or any of the myriad of other policy instruments that legislatures use to shape the legal and institutional environment of future legislation. In Part I, we define our terms, rebut the view that entrenchment is conceptually impossible, and argue that entrenchment is both constitutionally permissible and, in appropriate circumstances, normatively attractive. In Part II, we apply our analysis to a wide range of entrenchment-related problems, including the validity of the Senate cloture rules, the Gramm-Rudman law, legislatively enacted canons of statutory interpretation, statutes that regulate internal congressional procedures, government contracts, treaties, and entrenchment within the executive and judicial branches. Part III is a brief conclusion.
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In a system of separated powers, who (which branch or institution) should decide how officials are compensated for their services? Actors who enjoy the authority to determine compensation across or within branches might leverage that authority to obtain control over powers that the constitutional scheme entrusts to others. Yet it is not easy to devise institutional arrangements that avoid the risk of aggrandizement through control over salaries, without incurring unacceptable costs on other dimensions. The most obvious alternative - diminishing leverage, or protecting independence, by allowing institutions to set their own compensation - creates the competing risk that members of those institutions will use the compensation power to engage in self-dealing. Whether and how these structural tensions between aggrandizement and self-dealing can be successfully resolved, or at least negotiated through contextual adjustments and expedients, is the subject of this Essay. Professor Vermeule examines a range of constitutional texts and precedents, including the Article I Ascertainment Clause, the Compensation Clauses of Articles II and III, the Twenty-Seventh Amendment, and the Supreme Court's recent decision in United States v. Hatter. He describes these rules as responses to the constitutional-design tradeoff between promoting institutional independence and minimizing institutional conflicts of interest, evaluates their costs and benefits in that light, and proposes doctrinal adjustments intended to improve the constitutional law of official compensation.
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There is a crucial empirical assumption that pervades the debate about federal judicial review of federal statutes under the affirmative Commerce Clause. The assumption, indulged by many different camps in the debate, is that Commerce Clause review decreases the centralization of policymaking by shifting policy authority to the states. This essay argues that, on equally plausible empirical assumptions, Commerce Clause review will in fact do just the opposite: it will promote the centralization of public policy at the national level by providing congressional coalitions with ex ante incentives to legislate more broadly, and to create national programs that are more comprehensive, than they would otherwise choose. So those who favor Commerce Clause review because they favor decentralization have chosen a course of action with potentially perverse effects. The essay concludes by examining how the possibility of perverse effects should affect the decisional calculus of judges in each of the various camps.
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Adrian Vermeule, Centralization and the Commerce Clause, 31 Envtl. L. Rep. (Envtl. L. Inst.) 11334 (Nov. 2001).
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Commentary on, Akhil Reed Amar, Intratextualism, 112 Harvard Law Review 747 (1999).
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Adrian Vermeule, Saving Constructions, 85 Geo. L.J. 1945 (1997).
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