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Sunday, October 07, 2007

Can Constitutional Provisions Die of Desuetude?

Mario Cuomo argues not.  But is he right?  I have my doubts on the empirical front -- and feel free to put your favorite provision's death by desuetude in the comments.  I'm thinking that that whole dispute about the Bank of the United States (remember McCulloch) pretty much put to rest the idea that practice is irrelevant to determining what the Constitution means.  Of course, Cuomo might be thinking of Marshall's reminder that "It will not be denied, that a bold and daring usurpation might be resisted, [even] after an acquiescence still longer and more complete than this."  But I have the sneaking suspicion that Cuomo probably has some selective ideas about which provisions may die of desuetude and which may not -- and about which sort of governmental actions are "bold and daring usurpations" and which sorts of acquiescences, by contrast, are sufficient to undermine constitutional provisions. 

Posted by Ethan Leib on October 7, 2007 at 01:35 PM in Article Spotlight | Permalink


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Thank you for this post. The opinion by Cuomo was very thought provoking. I teach the constitution to 5th graders (I am also a 4L) and I love to bring them current events regarding the constitution. I am always reminding the kids whenever we have a discussion about a section or clause of the Constitution, to look at the actual words of the document. Some of them have become quite passionate about referring to their pocket constitution. I know this comment is off your specific topic, but thanks for pointing this opinion piece out. I will be using it for a discussion prompt in class.

Posted by: Amanda | Oct 9, 2007 1:07:16 PM

Interesting question. Maybe desuetude works in only one direction, in the following sense.
1: A limitation on a power can effectively "disappear" (i.e., to the extent the limitation would be thought to prohibit the thing at issue) through non-observance. I think this is true as an empirical matter, as you suggest. As a normative matter, people may disagree, but if there was an actual clash of opinion over the applicability of the limitation and then a longish practice, that seems pretty powerful to me.
2: And yet a power cannot disappear through non-use. The states have never called a constitutional convention as permitted by Article V, but surely that power still exists.

Posted by: Aaron | Oct 8, 2007 4:22:32 PM

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