Optionality and Switching
Assume two opposing rules are both optional. For example, assume that punishing those who burn objects in public is permissible but not required. The rulemaker may choose to ban public burnings, or it may choose not to ban them.
Assume that the rulemaker has chosen to ban public burnings and has enacted a rule to that effect. It now has a change of mind (or a change of personnel) and wishes to repeal the rule. May it do so? To deny this choice would be to say that options exist only at the time of the first legislative choice (in the entire history of the regime!). After that, the rulemaker would be frozen into one of the optional political moralities. This would effectively mean that optionality would not exist.
Therefore, because we assume optionality does exist, we must conclude that the rulemaker is always free to change its mind and switch from one optional rule (really, set of rules) to another. There may be some very limited freezing principles that retard such switching - for example, under the United States Constitution, the Takings Clause,15 the Obligations of Contracts Clause,16 and
his punishment than Jackson. The contrary position would throw constitutional analysis into the morass of determining how to individuate rules.
Second, in a world of options, questions of standing loom large. See Alexander, supra note 2, at 307-9. Consider Allan Bakke, who objected constitutionally to the admissions rule at the University of California medical school that favored minorities over whites. Regents of the Univ. of Calif. at Davis v. Bakke, 438 U.S. 265 (1978). Even if that rule was unconstitutional, there were an indefinite number of constitutionally permissible (if not wise) admissions rules available, under many of which Bakke would not have been admitted. The University of California could have taken the top scores on the MCATs, in which case Bakke would have been admitted, but it also could have constitutionally chosen open admissions, or preferences for tuba players, and so on. Does anyone who would have gotten into the medical school under some constitutionally permissible rule have standing to object to a constitutionally impermissible rule? If so, many minorities as well as whites would have had standing to challenge the admissions rule.
If not, why did Bakke have standing? (Or, to update this example, if a state university adopts an admissions rule that automatically admits the top, say, four percent of each high school class, and does so because of the rule's racial impact, it has arguably acted unconstitutionally under current precedents - see Larry Alexander & Kevin Cole, Discrimination by Proxy, 14 Const. Comment. 453 (1997) - but who of those not admitted will have standing to complain?)Indeed, given that it is entire sets of rules that are unconstitutional, it might appear that anyone who can point to a constitutionally optional alternative set under which he would be better off will have standing to complain that the set is unconstitutional. If the rule against burning objects in public is kept on the books because of its impact on burners of American flags, and is deemed unconstitutional for that reason - see Section VII infra - someone charged with burning trash on the street could conceivably have standing to challenge the rule's application to him on the ground that there is a constitutionally optional set of rules that does not include a rule prohibiting burning objects in public. Indeed, conceivably anyone would have standing who was suffering from the impact of any rule within the unconstitutional corpus juris! But what remedy could he get?
15 U.S. Const. amend. V.
16 Id. art. I, § 10.
the nonretroactivity aspect of the Due Process clauses[89] operate to qualify the ability to change from one optional rule to another - but in most instances, a rulemaker is free to change at any time from one optional rule to another.
VI.