Rules and Time

I have argued that rules must be evaluated based on their effects, which of necessity means their effects over time. I have also argued that if that evaluation is concerned with rules rather than with the particular act-tokens that fall under them, then that entails the view that the rules are optional; and I have argued that the converse relation holds as well, namely, that optionality entails a concern with rules rather than act-tokens.

If all of these arguments are correct, however - and I believe that they are - then we are left with a theoretical mystery: Why do we project a rule into the future and use its anticipated future effects to hold it unconstitutional, whereas the same effects in the past do not impugn rules?

To illustrate this mystery, I shall expand the original hypothetical:

City A has had a rule banning the public burning of American flags on the books for one year. It has now been repealed. Johnson burned an American flag while the law was in effect and is currently being prosecuted.

City B has had a rule banning all public burning for one year, and the rule remains on the books. It just so happens that the only people who have wanted to burn objects in public during the past year have been those who wanted to burn American flags. Jackson did burn an American flag and is now being prosecuted.

City C has alternated between a “no public burning” rule and having no rule regulating public burning. It has done so because it has changed its mind for constitutionally legitimate reasons. It just so happens, however, that all those prosecuted during the times the “no public burning” rule was in effect were those burning American flags in political protests.

City D has, like City C, switched back and forth between the same alter­natives. Unlike City C, however, City D has been consistently motivated by its desire to punish those, and only those, who burn American flags. Jencks_i, a flag burner, is being prosecuted under the “no public burning” change, given that the status quo may itself be the product of improperly motivated failure to act. And that means that the courts must impose a remedy whenever they find a constitutionally improper rule that renders the entire set of optional rules unconstitutional. However, given that there are perhaps many constitutionally optional alternative sets of rules, which such set should they impose? They cannot evade this problem, because the legislature may not act. And if the legislature does not act, the corpus juris must be judicially altered. But which of the alternative sets of rules should be chosen? (Notice how this problem of remedy is merely the flip side of the problem of standing mentioned in note 14 supra.} See also Alexander, “Constitutional Theory...,” supra note 2, at 307-9.

rule in effect when he acted. A new city council, composed of radicals sympathetic to flag burning, has taken office since Jencks₁'s arrest.

City E is like City D, except that the new city council took office before Jencks₂’s flag burning and left the “no public burning” rule on the books for legitimate reasons.

City F has just repealed a “no public burning” law and enacted a “no burning an American flag” rule that will sunset in one month, when a new city council, composed of radicals sympathetic to flag burning, will take office. Jinks burned an American flag after the “no burning an American flag” rule was enacted and is being prosecuted.

Now according to the arguments I have given, Johnson (City A), Jencksl (City D), and Jinks (City F) are being prosecuted improperly. On the other hand, Jackson (City B), Jensen (City C), and Jencks₂ (City E) are being permissibly prosecuted.

I regard this pattern of results and the asymmetry between future effects and past effects as sorely in need of justification. Unfortunately, I have none to offer. Perhaps these hypothetical merely illustrate the more general point made in Chapter Two, namely that Track Two laws - the entire corpus juris excluding laws aimed at the content of messages received - have much greater message effects than laws within the scope of principle (5), those the purpose of which is to have message effects. Governmental purposes must be definitive of the scope of freedom of expression issues because, as Chapter Two showed, message effects cannot be. Governmental purposes, however, would be of no concern to us independently of their effects in the world; and given optionality and its corollary, switching, the effects of content-based purposes on particular messages might track or exceed in severity the effects of content-neutral ones.

VIII.