Aspiration and Underenforcement
Responding to Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning , 119 Harv. L. Rev. 1274 (2006)
Professor Fallon’s article is a valuable contribution to the emerging body of literature that applies what could be called the decision rules model to the study of constitutional law. The model distinguishes between the meaning of the Constitution — its actual grants of rights and powers — and the doctrine that courts create to decide whether rights have been violated or powers exceeded. In the terms used by Professor Mitchell Berman, which are becoming conventional, the model separates the Constitution’s operative propositions from judicial decision rules.
The distinction between decision rules and operative propositions is a powerful analytic tool. Although it can be traced back to the nineteenth century, Professor Fallon deserves credit as one of the earliest modern scholars to present it as a general account of constitutional decisionmaking. I and others have used it to examine and critique particular areas of doctrine. In this article, Professor Fallon takes a different taxonomic tack, focusing on one of the factors that go into the shaping of particular decision rules. That factor is the need for judicially manageable standards. Though it is most prominent in the political question doctrine, the demand for such standards exists elsewhere. By focusing on the pervasiveness of this particular factor, Professor Fallon offers a deeper insight into the role it plays in the construction of decision rules. And, in what I find to be the article’s most interesting and original move, he suggests that it may also play a role in nonjudicial constitutional enforcement, one that might lead us to a different understanding of the nature of constitutional rights.
119 Harv. L. Rev. F. 193 (2006) | DOWNLOAD PDF
