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Constitutional Backdrops

76 Pages Posted: 27 Aug 2012 Last revised: 28 Dec 2014

Stephen E. Sachs

Duke University School of Law

Date Written: January 15, 2012

Abstract

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These are constitutional "backdrops": rules of law that aren't derivable from the text, but are left unaltered by the text, and are in fact protected by the text from various kinds of legal change. These rules may have been incorporated by reference; they may have been insulated from change by the usual political actors; or they may have been preserved as "defeaters" for the Constitution's defeasible language. In each case, the text requires that the rules be given force, even though it doesn't supply their content.

Backdrops are not only a legitimate category of legal rules, but a surprisingly important part of our legal system. Moreover, recognizing backdrops as a category may help shed light on otherwise insoluble disputes.

Keywords: Constitutional Backdrops, common law, incorporation by reference, defeasible, defeasibility, contempt of congress, executive power, removal, state borders, sovereign immunity, stare decisis

JEL Classification: K1, K10, K4, K40

Suggested Citation

Sachs, Stephen E., Constitutional Backdrops (January 15, 2012). George Washington Law Review, Vol. 80, p. 1813, 2012. Available at SSRN: https://ssrn.com/abstract=2004420

Stephen E. Sachs (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-8542 (Phone)

HOME PAGE: http://law.duke.edu/fac/sachs

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