Canonical Statutes
posted by Gerard Magliocca
There’s been a lot of discussion recently about the idea that certain statutes (whether you call them canonical, super-statutes, or super-duper statutes) are now part of the Constitution. This idea comes from the British Constitution, where certain statutes (The Reform Act of 1832, the 1911 Parliament Act) are considered fundamental and not subject to repeal even though formally they could be.
I tried to put together a list of what statutes might qualify for this exalted status. Here’s what I came up with:
1. The Judiciary Act of 1789
2. The Civil Rights Act of 1964
3. The Voting Rights Act of 1965
4. The Federal Reserve Act of 1913
5. The Administrative Procedure Act of 1946
6. The Social Security Act of 1935
7. The Pendleton Act (as amended by the Hatch Act)
Here are some other (less convincing) possibilities:
1. The Fair Labor Standards Act
2. Taft-Hartley
3. The Sherman Anti-Trust Act
4. The Clean Air Act , Clean Water Act, and CERCLA
5. The Americans with Disabilities Act
Perhaps I’m missing some. I’d be curious to hear your thoughts. The interesting thing that I noticed is that it looks like all of these super-statutes passed by supermajorities in Congress. If true, this undermines the argument that the composition of the Senate is unreasonably skewed or is prevents major legislation (i.e., universal health care) from being enacted. A better explanation is that political elites shrink from making these sorts of groundbreaking changes unless they have massive support, which gives credence to the notion of their “quasi-constitutional” status.
June 29, 2009 at 5:41 pm
Posted in: Jurisprudence
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Responses (10)
anonymous - June 29, 2009 at 6:38 pm
Unlike in Great Britain, we have a written Constitution with a formal and well defined mechanism to add or delete terms. The idea of “canonical statutes” that can’t be overturned simply conflicts with the text and structure of our document. It’s a neat way for non-elected law professors to try to sneak in Constitutional change in derogation of the Democratic process, but it won’t hold up.
That said, without the Judiciary Act of 1789 the Constitution might not mean what it does.
downfall - June 29, 2009 at 8:09 pm
6. The Social Security Act of 1935
Of the seven main candidates for inclusion to the constitution, one of them is a massive unsustainable ponzi scheme? Seriously?
George Conk - June 29, 2009 at 10:14 pm
I am very surprised that your list did not include 42 USC 1983 – the Civil Rights Act of 1871.
Harry Blackmun delivered an encomium to the statute in 1985. Here’s Harry:
“Today, § 1983 properly stands for something different — for the commitment of our society to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful. When the Fourteenth Amendment became part of the Constitution, it committed this Nation to an order in which all governments, state as well as federal, were bound to respect the fundamental rights of individuals. That commitment, too, is a part of “Our Federalism,” no less than the values of state autonomy that the critics of § 1983 so passionately invoke.”
For more checkout my blog Otherwise: blackstonetoday.blogspot.com
- GWC
Vladimir - June 29, 2009 at 11:03 pm
A minor quibble: The Judiciary Act has been amended many, many times. I think you need to identify particular parts that are canonical: Section 25 (S.Ct. review of state court decisions) and the creation of lower federal courts. More importantly, though, your insight here would aid significantly in explaining some fed courts puzzles — such as why the Court in Murdock v. Memphis essentially ignored Congress’ amendment of Section 25; and why the Court has resisted jurisdiction stripping time and time again, the difficulty of the Article III textual argument against jurisdiction stripping notwithstanding.
It might be useful to synthesize this type of formal enumeration with Ernie Young’s drop-dead brilliant functional analysis of the same problem in “The Constitution Outside the Constitution.”
Gerard Magliocca - June 30, 2009 at 4:54 am
Hi,
Yes, s. 1983 should be on list, even though nobody paid attention to it until the 1960s. And I agree that Young’s article is great.
As for Social Security, it’s untouchable. Look what happened when Bush tried in 2005. I don’t mean, BTW, that these statutes never get amended. I just mean that their core meaning is extraordinarily difficult to change. Look at the VRA — Congress won’t even change a coverage formula that is over 40 years old.
Hillel Y. Levin - June 30, 2009 at 7:49 am
I don’t really think this is a sensible question. In what ways are these statutes “nor part of the Constitution”?
Joe - June 30, 2009 at 8:37 am
Well, we keep these statutes around because we all agree with them more or less. Our collective conscience believes in them. As much as we do our Constitution. And that’s how our government SHOULD work.
Hillel Y. Levin - June 30, 2009 at 8:47 am
Joe–
All rules that we collectively care about or “agree with more or less” are part of the Constitution?
anonymous - June 30, 2009 at 9:31 am
I think most people think the Uniform Commercial Code is a set of legal rules that we agree with, more or less. Does that make the UCC (as enacted by various state legislatures) part of the canonical Constitution?
Bill Reynolds - June 30, 2009 at 5:53 pm
Justice Marshall once referred to the Sherman Act as our “economic constitution.”
Hart and Sacks had a section on “much construed statutes (eg, the Statute of Frauds) that had acquired a life of their own
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