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| In his 1997 Harvard Law Review Foreword, Implementing the Constitution, Professor Richard Fallon challenged constitutional theorists’ widespread assumption that judge-interpreted constitutional meaning was the single important output of judicial review. “Identifying the ‘meaning’ of the Constitution
is not the Court’s only function,” he observed. Rather, it is part of a general mission “to implement the Constitution successfully.” To that end, Professor Fallon argued, “the Court often must craft doctrine that is driven by the Constitution, but does not reflect the Constitution’s meaning precisely.” Building on work by Professors Henry Monaghan and Larry Sager, Professor Fallon set forth the most complete and forceful call to deprivilege meaning relative to doctrine.
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| The ensuing decade has witnessed a steady increase in scholarly attention to the meaning/doctrine distinction. My own contribution to that burgeoning literature, Constitutional Decision Rules, had several goals. As intellectual history, it aimed to identify, and provide a framework for understanding, an emergent trend of constitutional scholarship oriented toward “the claimed existence of [constitutional] doctrine, conceived
as a category of judicial work product . . . more comprehensive than judge-interpreted constitutional meaning.” In my view, the fundamental divide within this genre separates “taxonomists” from “pragmatists.” The taxonomists (represented by Professors Fallon, Sager, and Monaghan) accept what we may call the “two-output thesis”: the claim “that there exists a conceptual distinction between two sorts of judicial work product each of which is integral to the functioning of constitutional adjudication,” namely judge-interpreted constitutional meaning and judge-crafted tests bearing an instrumental relationship to that meaning. The pragmatists (represented by Professors Rick Hills, Daryl Levinson, David Strauss, and Evan Caminker) deny this. According to them, the distinction is illusory because the forward-looking, cost-benefit calculations thought to inform the supposed second output inform the first too. If it’s pragmatism all the way down, they argue, a distinction between judicial outputs cannot be maintained.
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| Allying myself with the taxonomists, I articulated and tried to defend a new carving of these two outputs. I thus proposed that judge-announced “constitutional doctrine” be understood to include statements of what courts have interpreted the Constitution to mean (“constitutional operative propositions”) as well as instructions to courts regarding how to decide whether that judicially determined constitutional meaning has been satisfied (“constitutional decision rules”). The default, generally invisible decision rule is the more-likely-than-not standard of proof. But decision rules often employ heightened (or reduced) proof standards. They can also be conclusive presumptions: for example, an instruction to conclude A if you conclude B (where B is an adequate proxy for the operative proposition A, but a fitter subject of judicial inquiry). When constitutional doctrine is carved in this way, I argued, the conceptual ineliminability of two distinct outputs becomes patent. Because courts inescapably face epistemic uncertainty when seeking to apply (judge-interpreted) constitutional meaning, judicial review requires devices that direct courts how to decide whether that meaning is met.
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| The two-output thesis is not, I think, controversial. I have found it readily accepted by law students and constitutional lawyers. But to be accepted is not quite to be internalized. And courts have yet to grasp fully the truth of the thesis, let alone its significance. For this reason among others, Professor Fallon’s further contributions to the field he helped create are most welcome. Moreover, given my own considerable debt to his earlier work, it should not surprise that much in Judicially Manageable Standards and Constitutional Meaning I find right and illuminating. However, I am skeptical of what is likely the article’s freshest and most provocative claim — namely, that some constitutional rights may be only aspirational. Ironically, if Professor Fallon’s arguments in support of that claim do not succeed, their failure might be due in part to his seeming retreat from the two-output thesis he had apparently embraced a decade earlier. [ More ] |
Suggested citation: Mitchell N. Berman, Aspirational Rights and the Two-Output Thesis, 119 Harv. L. Rev. F. 220 (2006), http://www.harvardlawreview.org/forum/issues/119/march06/berman.pdf
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