William and Mary Law Review, Vol. 42, No. 5 (May 2001), pp. 1575-1870

Abstract

Often the Supreme Court directly engages nonjudicial officials in a shared elaboration of constitutional rights. It does so through the use of doctrines that focus on whether nonjudicial actors have taken an appropriately close and sensitive look at policy judgments that threaten important constitutional values. In many of these cases, the Court in effect "remands" constitutionally controversial programs to the political branches--inviting a more studied consideration of the program than attended its initial adoption, and leaving open the possibility that the readopted program will be upheld against constitutional attack.

The Court's structural doctrines range from the familiar vagueness rule to the little noticed judicial practice of disregarding statutory justifications no longer relied on by the state. Through the use of these and many other process-centered rules, the Court initiates a dialogue with and among nonjudicial actors, often deferring to decisions of political branches on how to resolve constitutional issues, so long as these decisions bear the earmarks of deliberation and care. These doctrines thus may be called "rights-driven rules of deliberation and dialogue" or "structural safeguards of substantive rights." In the interest of brevity, I refer to them in this Article simply (and synonymously) as "second-look" or "structural" doctrines or rules.

A comprehensive and systematic elaboration of structural rues is what I offer here. More specifically, after further defining the nature of structural review in Part II, I consider in Parts III through XII each of the nine categories of structural rules, as well as a number of so-called "quasi-structural" rules. I also offer most pointedly in Parts XIII and XIV, but also at other stages along the way, an introduction to a systematic evaluation of the legitimacy and wisdom of structural review. In particular, Part XIII identifies ten arguments that may be made against structural review (for example, that they are inherently unprincipled, surreptitiously activist, and unduly invasive of legislative prerogatives), and then also identifies ten arguments that may be made on their behalf (for example, that they wisely encourage lawmaker care, conserve judicial capital, and alert political decision makers to their own constitutional responsibilities). Part XIV follows up on this discussion by considering in detail the most basic critique of structural rules: namely, that their use is illegitimate because such use is unsupported by constitutional text and tradition. In rebuffing this challenge, this Article suggests, among other things, that structural rules comport with long-accepted process-centered themes in constitutional law and with the Framers' own embrace of the value of "deliberative democracy."

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