Can anything be constitutional that violates clear and concrete commands contained in the Constitution? Most constitutional theorists say “No.” As much as they disagree on how to interpret the Constitution’s vague clauses, they agree that nothing can justify a departure from the Constitution’s many rule-like directives. As Randy Barnett has recently quipped: “To remain faithful to the Constitution . . . we must never forget it is a text we are expounding.”
Nevertheless, constitutional practice gives a different answer. On the one hand, there are “constitutional workarounds,” which Mark Tushnet describes as instances where “[f]inding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts—and do so without (obviously) distorting the tools we use.” On the other hand, there the writings of other scholars who, in the course of investigating particular constitutional clauses and controversies, discuss constitutional doctrines or governmental practices that they say violate clear and concrete constitutional text without a workaround to provide cover.
This Article explores and supplements these many scholarly claims. It contends that our constitutional tradition contains an array of doctrines and practices that depart from clear and specific constitutional rules. Constitutional praxis evidently has different norms, and teaches different lessons, from constitutional theory.
This Article supports its contention in two ways. First, it discusses a variety of constitutional doctrines and governmental practices that other commentators have already noted as conflicting with clear constitutional text. Second, it provides a thorough study of a well-known and important constitutional doctrine that is not generally recognized as a departure from the Constitution’s clear requirements. The example is the petty crime exception to the right to jury trial.
The Constitution enshrines the right to jury trial in Article III, § 2, which peremptorily commands that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” However, according to the petty crime exception, defendants facing no more than six months in jail, or a fine of no more than $500, have no right to a jury trial. The petty crime exception, at least at first blush, appears to depart from the Constitution’s literal requirement of jury trial for “all Crimes.” The full argument is more complex, but it reaches the same conclusion.
In addition, in its initial analysis of Article III’s jury provision, this Article employs the interpretive approach of modern textualism. Only after a textualist analysis is complete are the alternative interpretive norms of originalism and living constitutionalism brought into the discussion. Because of the varying results produced by these three interpretive modes, this Article, in the process of establishing that the petty crime exception is a departure from a clear and concrete constitutional command, provides a telling example of the extent to which the varying interpretive norms of textualism, originalism, and living constitutionalism have shaped our constitutional development.