November 2005, Volume 91, Issue 7|
Constitutional Calcification: How the Law Becomes What the Court Does
91 Va. L. Rev. 1649 (2005)
This Article articulates and explores an important distinction in constitutional law: the distinction between the requirements of the Constitution (“constitutional operative propositions”) and the rules that courts apply to decide whether those requirements have been violated (“constitutional decision rules”). The distinction has long been recognized, but until recently there have been few systemic investigations of its origin and consequences. The article first offers a sustained analysis of the factors that drive courts to create particular sorts of decision rules to enforce constitutional operative propositions. It then uses this account of the justification for different kinds of decision rules to explain and critique the Court’s jurisprudence in a number of different areas of constitutional law: the Commerce Clause, the Equal Protection Clause, the Free Exercise Clause, constitutional criminal procedure, and Section Five of the Fourteenth Amendment. Last, it explores a particular pathology that has thus far escaped attention. As doctrine becomes stable, the Court consistently begins to treat its decision rules as though they were operative propositions. This mistake has grave consequences, both for the soundness and coherence of doctrine and for the Court’s institutional role. By highlighting the consequences of confusing decision rules and operative propositions, the Article offers a fresh and useful perspective on controversial areas of constitutional law.
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