Michael L. Smith (University of Oklahoma College of Law) has posted Relativity and Constitutional Time, forthcoming in the West Virginia Law Review, vol. 129 (2027), on SSRN. Here is the abstract:
The typical story of constitutional law’s doctrine and development focuses on disputed provisions with abstract and malleable language. This standard story often contrasts these controversial provisions with clauses that are exemplars of clarity. Two such provisions are the requirement that the President serve a four-year term, and the requirement that the President be thirty-five years of age. This Article subjects these seemingly clear provisions to a stress test. Looking to the distant future, this Article considers an initial dispute in which the President travels to Alpha Centauri (to visit one of America’s interstellar states) leading to litigation over whether the President (who has subjectively experienced one month of the passage of time while four-and-a-half years have passed on Earth) is still serving out his term. From there, things get even more confusing, as his daughter (who was—as a backup strategy—elected President in the interim while she traveled with her father) is eligible for the office, as she was only thirty-three years old when departing with her father to Alpha Centauri and has experienced only thirty days’ passage of time. From there, the Article considers lessons to be learned. An initial takeaway from wrestling with these scenarios is that even clear constitutional provisions will run out in certain factual scenarios. More deeply, these hypothetical cases demonstrate the role purposive interpretation and functional considerations may still play in cases involving seemingly clear constitutional text. Readers are also reminded of the importance of thinking through problems before they arise—rather than engage in dicey interpretive claims once high-profile litigation is pending. This look to the future also sheds light on the role of common law, both as a source of cases that have already raised substantially similar questions, and as a potential solution to the difficult questions of interpretation special relativity raises. Relatedly, the article’s seemingly outlandish hypotheticals resemble state-level disputes over constitutional time provisions—suggesting that looking to the future may assist those grappling with current cases.
Fascinating. Recommended.
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