Primus on Constitutional Expectations

November 4th, 2009

Very interesting article. SSRN (H/T Legal Theory Blog)

Professor Richard Primus of Michigan considers BHO and JGR’s flubber of the Constitutional Oath as a means to justify why departures from the text of the Constitution are permitted, and thus why the District of Columbia should be entitled to representation in Congress.


And from the paper:

    Constitutional expectations are intuitions about how the system is supposed to work. They arise from a combination of experience, socialization, and principle. Obviously, Americans do not all share a single, precisely defined set of expectations. Indeed, conflicts among rival sets of expectations help to account for many disagreements about constitutional law. Over a relatively broad domain, however, informed Americans share expectations about the rules of government. Those expectations are often closely related to the constitutional text, but the text does not always capture them precisely. On the contrary, our shared expectations go well beyond the strict textual requirements of the Constitution.


    The argument that the Act is unconstitutional has a reasonable basis. Article I, Section 2 says that the House of Representatives “shall be composed of Members chosen every year by the people of the several States.”29 The District of Columbia is not a state. Accordingly, the constitutional objection runs, admitting D.C. to the House would ignore the written requirements of Section 2. And that cannot possibly be acceptable.30 Yet this argument is not as tight as it seems, because our system for electing Members of Congress already—and uncontroversially—deviates from Section 2 on a regular basis. If we were more aware of those deviations, the argument that Section 2 requires excluding D.C. might have less weight. But like the practice of inserting the President’s name in the inaugural oath, our accustomed departures from the text of Section 2 have become well integrated into our constitutional expectations. We tend not to notice them.


    Suppose, however, that constitutional expectations were to shift on the issue of representation for D.C., just as they earlier shifted on the question of whether the Constitution requires the same racial equality regime in the District that it requires everywhere else. Suppose, in other words, that large majorities of American officials came to believe that our basic constitutional values demand letting the residents of Washington D.C. vote and be represented. A different set of textual readings would then seem natural. To be sure, the new received wisdom in American law would not necessarily be the one that I have suggested about the meaning of “composed.” Perhaps a different textual reconciliation would emerge. Or perhaps the prevailing explanation would not take the form of hard textualism at all. Constitutional lawyers might simply learn to shrug their shoulders at the mismatch between the language of Section 2 and the fact of representation for D.C., just as they now overlook the practice of letting criminal defendants waive jury trial. If pushed, they might say that mature respect for the constitutional text means reading it in a reasonable way rather than a crabbed and literal one. But one way or another, the text would not prohibit the practice.

I like Professor Primus. I met him at the Constitution in 2020 Conference and was very impressed by his work.  Definitely check out this article.