The Atrophy of Constitutional Powers

Abstract

In many constitutional regimes, constitutional powers atrophy over time. Although at one point such a power is explicitly established in a written constitution or solidly based in constitutional conventions, the power gradually sinks into desuetude, and at a later time actors in the legal system declare its use illegitimate or assert that a constitutional convention now prohibits its exercise. Examples of atrophied powers – listed roughly from most clearly atrophied to less clearly so -- include the royal veto in the United Kingdom, the power of the Canadian federal government to disallow provincial laws, the power of the U.S. Congress to expand the number of Supreme Court justices (court-packing), the notwithstanding clause that authorizes the Canadian Parliament to override judicial decisions, and congressional impeachment of executive officers. I will try to offer some mid-level generalizations about the atrophy phenomenon. On this account, the common dynamic is slippage in the modal status of power: a power that is not exercised tends, over time, to become unexercisable. I offer several stylized hypotheses, each based on a different causal mechanism, that might explain this pattern. The common theme is that when a power goes unexercised over some sufficiently long period, its use comes to seem illegitimate to boundedly informed publics (including elites who lack relevant specialized knowledge). Such publics use a political precedent heuristic, according to which an attempt to revive the power at a later time amounts to an illegitimate attempt to change the rules of the political game. I then elicit implications for constitutional actors who wish to prevent the atrophy of particular constitutional powers. Actors in this situation would do well to engage in pointless exercises of power -- a form of deliberate precedent-setting in which the power is exercised merely to preserve its existence for the future. By way of illustration, I apply this point to legislative power to overturn or override constitutional or quasi-constitutional decisions of the judiciary, with special reference to judicial review under the Human Rights Act in the United Kingdom. This advice can also be turned on its head for actors who wish to hasten the atrophy of constitutional powers.