Peter Suber, Paradox of Self-Amendment, Section 19

Section 19
Amendment by Desuetude Peter Suber, Paradox of Self-Amendment Table of Contents

Notes

Desuetude is the doctrine that long and continued non-use of a law renders it invalid, at least in the sense that courts will no longer tolerate punishing its transgressors.[Note 1] U.S. v. Elliott, 266 F.Supp. 318, 325 (D.C.N.Y. 1967). It is common in the Roman, civil law nations of Europe, but not in England or the United States. The only Anglo-American system to recognize desuetude is Scotland.[Note 2] Desuetude was formerly recognized in this country, O'Hanlon v. Myers, 10 Rich. 128 (S.C. 1856); but the present "official" view rejects it, at least for statutes. "There can be no repeal of a criminal statute by the failure of authorities to prosecute or convict for its violation." Callahan v. State, 156 Md. 459, 144 A. 350 (1929).
Despite the "official" view, some vestiges still remain, for example, in the American Bar Association Standards Relating to the Prosecutorial Function. The A.B.A. lists eight factors that should influence prosecutorial discretion, one of which is "prolonged non-enforcement of a statute, with community acquiescence." This is mere prosecutorial policy, not a rule that might bind a court.[Note 3] But a trace of desuetude in the latter sense still exists as well. In the Elliott case, above, the defendant was charged with violating a statute enacted half a century earlier and never used.[Note 4] After reviewing cases and scholars asserting the "official" view, and some arguing against it, the court left the door ajar by ruling that there is

little analytical aid in merely applying, or refusing to apply, the rubric of desuetude. The problem must be approached in terms of that fundamental fairness owed to the particular defendant that is the heart of due process.

Elliott, id. at 326. Although finding the old law valid and convicting the defendant, the court in effect resurrected or recognized the doctrine of desuetude by translating it into the modern doctrines of fairness, notice, vagueness, and due process.
Where desuetude still exists it is a rule of change for the types of law to which it applies. If desuetude could apply to American constitutional rules, which has been debated,[Note 5] then parts of the AC could be repealed through desuetude. That, of course, would not constitute self-amendment, for desuetude is not authorized by the AC itself. It would constitute amendment of the AC by an "unofficial" method of amendment outside the AC, just as it would be if amended by judicial review or treaty.
One provision of the federal AC has never been used in the history of the clause: the provision for states to petition Congress to call a national convention.[Note 6] By "not used" I mean that while many states have petitioned Congress to call a convention, they have never triggered action by Congress under Article V to call such a convention. Could this provision fall into such neglect that it may no longer be used?
That is doubtful, even though the history of its neglect may constitute a practical (not legal) impediment to its use. The uncertainty of its operation combined with the gravity of its potential consequences is today probably the single greatest obstacle to its use; and much of the uncertainty about the clause is undoubtedly due to its non-use.
Genuine self-amendment of the AC through desuetude could occur only if the AC already allowed repeal by desuetude (say, by a prior act of self-amendment) and if that provision lapsed through desuetude. Leaving the AC aside, the same form of self-amendment could occur to the common law or customary rule of desuetude (if there is one). Indeed, this may have happened in the United States: our earlier recognition of desuetude may have waned through desuetude. More likely, though, it was reversed by more or less deliberate policy choices or evolving concepts of law itself, such as a growing formalism, positivism, deference to legislatures, and increased codification of the common law. But if the doctrine of desuetude had been repealed by desuetude in the United States, then we would face the same sort of problem faced in the case of self-repeal by sunset clause (Section 12). Desuetude could undo desuetude only by the continuing, present validity of desuetude. The cat could be made to vanish only if a grin remained.
Desuetude may not have been repealed by desuetude, but a closely related doctrine may have governed its own demise. Sir C.K. Allen believes that desuetude has never been recognized in England. However, he says,[Note 7]

There was...at one time a theory, which, under the name of 'non-observance', came very near to a doctrine of desuetude, that if a statute had been in existence for any considerable period without ever having been put into operation, it might be treated as null....[I]t may now be considered to be wholly discarded.

How does non-observance differ from desuetude and why is it now discarded? Non-observance, it seems, treats a rule as if it were null by refusing to enforce it after a long period of non-enforcement, while desuetude (when applicable) would declare a rule actually null by obsolescence. The distinction may be accepted, but clearly the doctrine of non-observance, now "discarded" and not repealed by statute, did not fall by desuetude. If it applied only to statutes, or to rules that were themselves never applied, then it cannot apply to itself. But if it describes the quasi-nullity of any rule that will not be enforced due to long non-enforcement, then it truly describes its own current status —or would do so but for the present or continuing validity it would need to do so.
Repeal by desuetude is much like repeal by sunset clause. Indeed, we could call the doctrine of desuetude an implied and indefinite sunset clause. This highlights a significant difference between the two. A sunset clause may be part of the legal rule being repealed, and typically is. Therefore we must ask how it tells us with authority, after self-repeal, that repeal has occurred. But the doctrine of desuetude is external to the rule being repealed (but for the extraordinary, reflexive application to repeal the doctrine of desuetude). Therefore, its normal operation is irreflexive and raises no question of partial or total self-repeal. While sunset clauses resemble the skeptics' statements of uncertainty, which "cancelled themselves" the way rhubarb washes out the digestive system and itself, the doctrine of desuetude resembles the skeptics' "proof that proofs are impossible" —even when it succeeds, it displays the continuing possibility of what it aimed to undo.
Amendment by frequent, successful violation is a variant of desuetude. Desuetude is classically triggered by neglect or non-enforcement, both of which may be responses to frequent violation. Desuetude without violation is possible for rules whose original purpose or sphere of application fades away, making violation as obsolete as compliance. But where desuetude is recognized, a custom or practice contrary to the rule of law must usually have arisen,[Note 8] a custom that is itself a function of frequent violation. In this sense violation may become repeal even though the acts of violation do not and ordinarily must not have law-making effect.[Note 9] Amendment by violation is officially rejected at the constitutional level in the United States. State ex. inf. Barrett ex rel. Bradshaw v. Hedrick, 241 S.W. 402, 421 (Mo.Sup.Ct. 1922) (the legislature cannot amend the constitution merely by violating it frequently).
Does desuetude apply in any way to the American state and federal constitutions? The negative answer of Hedrick is common. In Walz v. Tax Commission of the City of New York, 397 U.S. 664, 678 (1970) the Supreme Court asserted that

It is obviously correct that no one acquires a vested or protected right in violation of the Constitution by long use, even when that span of time covers our entire national existence and indeed predates it.

In Walz the "custom" was tax exemption for churches, which the court upheld after so dramatically declaring it open to question. Softening its bold position on desuetude, it cited the statement of Justice Holmes in Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922):

If a thing has been practiced for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it.

The Holmsean qualification almost reintroduces desuetude, like the Elliott case, in the guise of fairness or due process. However it is the bold, unqualified rejection of desuetude that has been most quoted from Walz.[Note 10] A similar principle often found is that "[c]hanged economic conditions or developments do not amend the Constitution." Burns v. Alderson, 51 Wash.2d 810, 322 P.2d 359, 361 (1958) (contains many citations to other cases).
One may suspect that these unqualified rejections of desuetude are, like the exclusivity of the AC that they support, merely an official view repeated for form's sake and compromised in practice as needed. Desuetude may be conceived as the repeal of law through custom. One may expect to find it, at least unofficially, wherever custom is recognized as a source of law. Custom becomes a rule of change for constitutions primarily through the agency of judicial interpretation and reinterpretation, a quasi-official rule of change for constitutions with a strong claim to de facto validity (Section 15). Changes in practice, usage, custom, or popular values commonly affect the interpretation of the constitution, sometimes through judicial "activism" that incorporates such changes, and sometimes by judicial "restraint" that defers to legislative, executive, or administrative departures from firm rules or prior interpretations of the constitution.[Note 11]
An example from our own discussion in Section 17 is the rise of executive agreements as alternatives to treaties that dispense with the consent of the Senate. The constitution does not recognize them, but they have become customary. An anonymous English scholar observes that [Note 12]

By such and kindred devices our kin beyond the sea have ingeniously contrived to modify in various directions their much venerated Constitution which was fondly imagined by its authors to be immutable save by the orthodox method of formal amendment as prescribed in Article V.

When we look for something more direct we face many difficulties. Is the convention method of amendment desuetudinal just because long non-use has created uncertainties that form practical and political barriers to its use? Until 1933 the same might have been said of the method of ratifying amendments in state conventions. Provided by the constitution from the beginning, it had never been used. But that method was dusted off and used for the first time, one might say with relish, in ratifying the Twenty-First Amendment, the repeal of Prohibition (see Section 16).
There are other sections of the constitution to which we might look as clauses that may have lapsed through desuetude. One lies in §2 of the Fourteenth Amendment. It says that if a state improperly restricts the right to vote, then its basis of representation "shall" be reduced in the proportion which the number of victims bears to the number of eligible voters. Despite the strong language and frequent violations, this mandatory penalty has never been imposed.
By one estimate, the British North America Act of 1867, which functions as the constitution of Canada, contains 50 sections that have "no remaining constitutional force although they have formal validity."[Note 13]
One of the most litigated examples in our constitution is Article I, §9.7, which requires that "expenditures of all public money shall be published from time to time." This clause still lives for most public money, but the budget of the Central Intelligence Agency is notoriously, and officially, secret. Repeated attempts to compel publication of its budget under Article I, §9.7 have failed, not through any express appeal to desuetude, but through an impenetrable web of objections based (for the most part) on standing.[Note 14] Of course the official reasons for the secrecy of the C.I.A. budget do not include the desuetude of Article I, §9.7. They are all appeals in some way to national security. But there is no official national security exception to Article I, §9.7 (or to virtually any clause of the constitution, either), which is one reason why lack of standing must be invoked by a government anxious to preserve secrecy. Hence, while it appears that national security and standing problems protect the C.I.A. budget from disclosure, we might say instead that Article I, §9.7 has been amended by custom to permit an exception for national security. The only obstacle to this reading of the facts, however, is that the C.I.A. budget has repeatedly been the target of civil action seeking disclosure. The rule forcing disclosure has not been beyond the reach of plaintiffs on account of obsolescence so much as, on the contrary, vigilant maneuvering.
One more possible application of desuetude to constitutions may be noted. If a constitution or amendment is adopted in violation of a minor but clear rule of procedure, then many states and nations will allow it to become valid by acquiescence.[Note 15] But cure by acquiescence is a form of desuetude applied to the rule that had been violated. If the rule does not completely lose its validity as time passes and as a contrary custom arises, at least it loses its authority over a major violation.[Note 16] One may interpret cure by acquiescence in other ways, but the similarity to desuetude will not be erased. For example, my own preferred interpretation is that cure by acquiescence represents the triumph of social acceptance over the formal rules that would invalidate the constitution or amendment. Insofar as the violated rule is valid by the rule of recognition, acceptance overrules (or amends) the latter in order to invalidate the former. But any time acceptance overrules (or amends) the rule of recognition in order to invalidate a law, the "unacceptable" has lapsed according to a process with an ineradicable resemblance to desuetude.
Nothing could be more foreign to legal formalism, or a Rossian inference model, than to suppose that either neglect or violation could amend any legal rule. By their favorite analogies, formalists would find desuetude as sensible as supposing that habitual bad reasoning could amend the principle of non-contradiction.[Note 17] Acceptance theorists like Hart, on the contrary, offer the readiest explanation for desuetude and amendment by violation. No rule is of present legal validity, under the acceptance theory, if it is not presently accepted as legally valid, either directly or through an accepted rule of recognition.
A sophisticated acceptance theory must account for the validity of laws that have not been used for some time and which are therefore out of the actual consciousness of most citizens and officials of the system. No acceptance theory, however, need make this task more difficult than it is by equating acceptance with the contents of the actual consciousness of a bloc of citizens or of the constructive fiction of the collective consciousness. The presently accepted rule of recognition, not overruled on this particular by acceptance, may even deny desuetude by ascribing continuing validity to any statute or constitutional rule enacted in the proper way but not yet repealed in any of the official or non-desuetudinal ways.
I suggest that the transition in America from an era in which desuetude was recognized to the present era in which it is not is due, not to desuetude itself, but to a transformation in our legal thinking from a variant of the acceptance theory in which popular sovereignty was a more concrete and compelling idea, to a more rigid formalism in which law became official, "scientific", "professional", and abstractly conceived as self-entrenched or amendable only by its own official means.[Note 18]
Notes
1. Linda and William Rogers, "Desuetude as a Defense," Iowa Law Review, 52 (1966) 1-30; Arthur E. Bonfield, "The Abrogation of Penal Statutes by Nonenforcement," Iowa Law Review, 49 (1964) 389-440; John Chipman Gray, "Desuetude of Statutes in the United States," in his The Nature and Sources of Law, Macmillan, 2d. ed., 1921, pp. 329-34. [Resume]
2. See J.R. Philip, "Some Reflections on Desuetude," Juridical Review, 43 (1931) 260-67. [Resume]
3. For a detailed comparison of desuetude to different types of prosecutorial policies of non-enforcement, and a persuasive argument that each may justify an act of "violation" or rule-departure by citizens, see Mortimer and Sanford Kadish, Discretion to Disobey: A Study of Lawful Departures From Legal Rules, Stanford University Press, 1973, pp. 127-40. [Resume]
4. The statute, 18 U.S.C. 956, was enacted in 1917. It prohibited conspiracies within the United States to destroy property in foreign nations with which the United States is at peace. [Resume]
5. Lester Bernhardt Orfield, The Amending of the Federal Constitution, University of Michigan Press, 1942, at p. 81. Orfield asks whether the Fifteenth Amendment has lapsed through desuetude and non-enforcement, but eventually rejects the idea. Without using the word "desuetude", Arthur Machen believes that the Fifteenth Amendment is void (inter alia) because it has never been enforced. Arthur Machen Jr., "Is the Fifteenth Amendment Void?" Harvard Law Review, 23 (1910) 169-93, at p. 169. When Machen was writing, 40 years had elapsed since the amendment's adoption, including the reconstruction following the Civil War; and the Fifteenth Amendment had never once been used to invalidate a state or federal statute. However, as Orfield notes, two Supreme Court cases enforcing the Fifteenth Amendment occurred shortly after Machen wrote, viz. Guinn v. U.S., 238 U.S. 347 (1915), and Myers v. Anderson, 238 U.S. 368 (1915). Other aspects of Machen's thesis are discussed in Section 8.C.
In addition, one may well decide that a constitutional provision is "used" and even "enforced" in many other situations than when it is used to invalidate a conflicting statute. [Resume]
6. But see Section 12.C and accompanying notes 29 and 30. [Resume]
7. Sir Carleton Kemp Allen, Law in the Making, Oxford University Press, 7th ed. 1964, at p. 478.n.2 (emphasis in original). [Resume]
8. Philip, op. cit., at p. 261. [Resume]
9. See Section 9.C. I explore the logic of amendment through violation in more detail, and in a different domain, in "The Reflexivity of Change: The Case of Language Norms," Journal of Speculative Philosophy, 3, 2 (1989) 100-129. [Resume]
10. See e.g. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 792 (1973), and In Re Lamb, 34 Ohio App.2d 85, 296 N.E.2d 280, 289 (1973). [Resume]
11. An example of the latter from 19th century Arkansas is offered by David Y. Thomas, "Amending A State Constitution By Custom," American Political Science Review, 23 (1929) 920-21. [Resume]
12. Anon., "Usage as Modifying the American Constitution," Solicitors' Journal, 70 (July 10, 1926) 785-86, at p. 786. [Resume]
13. Bora Laskin, "Amendment of the Constitution: Applying the Fulton-Favreau Formula," McGill Law Journal, 11 (1965) 2-18, at pp. 5-7. Like the United States, Canada officially rejects desuetude. [Resume]
14. See Douglas P. Elliott, "Cloak and Ledger: Is C.I.A. Funding Unconstitutional?" Hastings Constitutional Law Quarterly, 2 (1975) 717-55. For a general study of such difficulties, see Walter F. Dodd, "Judicially Non-Enforceable Provisions of Constitutions," University of Pennsylvania Law Review, 80 (1931) 54-93. [Resume]
15. See Orfield, op. cit., at pp. 9, 53, 78ff, 80.n.134, 156. [Resume]
16. Arthur Machen, who believes the Fifteenth Amendment is void in part because it has never been enforced (see note 5 above), also believes it is void in part because it was defectively adopted and never the subject of acquiescence by a major region of the country, the South. Op. cit. at p. 191, he says,

[The Fifteenth Amendment has] never been acquiesced in unreservedly throughout the country. Indeed, it has never been loyally observed in places where its effect was small. In large portions of the country it has been persistently evaded and overridden, now by force and now in other ways. [Resume]

17. Of course bad reasoning usually finds itself justified, just as mediocrity rates itself above excellence. Formalists stumble a bit when confronted with the fact that illogic can be self-justified, that is, justified by illogic, at least as well as sound logic can be self-justified, and even better insofar as self-justification is prohibited to sound logic as a kind of question-begging. [Resume]
18. Without discussing desuetude, Morton J. Horwitz superbly charts "The Rise of Legal Formalism" in America in Chapter VIII of his The Transformation of American Law, 1780-1860, Harvard University Press, 1977. [Resume]

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