University of Illinois Law Review, Vol. 2001, No. 5 (2001), pp. 1159-1205


Professor Coenen analyzes Professor Tribe's contention that the present day Supreme Court's constitutional work is marked by an unjustified two-track approach. Professor Tribe has built this claim on an elaborate assessment of Saenz v. Roe, in which the Court -- to the surprise of many prognosticators -- invalidated a state statute that imposed temporary limitations on welfare benefits for new residents. He contends that the Court employed the open-stanced constitutional methodology of “structural inference” in deciding Saenz only because that case involved institutional arrangements. According to Professor Tribe, the modern Court has carefully (and unjustifiably) confined its use of structural inference to institutional-arrangement cases; in the field of individual liberty it has eschewed this nontextual, nontradition-based style of reasoning ever since its 1973 ruling in Roe v. Wade.

Coenen begins his response to Professor Tribe's comment by noting that it provides a powerful call for the protection of individual liberties. Coenen also agrees that the structural-inference model has driven recent Supreme Court decisions that curtailed congressional authority under the banner of implied federalism limitations. Coenen, however, raises three major questions about Tribe's portrayal of the modern Court's work and its methodological and doctrinal implications.

First, Coenen asks whether Professor Tribe's dualistic portrayal of the modern Court's work represents an oversimplification. Examining a variety of modern rulings, Coenen concludes that the two-track depiction both overstates the Court's willingness to use the structural methodology in cases like Saenz and understates its willingness to use that methodology in true “fundamental rights” cases.

Next, Professor Coenen notes that the Court's holding in Saenz, which invalidated a seemingly quite plausible state law, appears inconsistent at first blush with the Rehnquist Court's strong pro-states-rights stance. Coenen argues, however, that Saenz is best understood within a larger view of why state autonomy has value. State autonomy, he says, is merely a means to other ends, and the benefits from diverse state communities exist only when interstate mobility is unimpeded.

Lastly, although Professor Coenen endorses the view that structural inference should be employed in more orthodox cases involving claimed infringements of rights, he expresses concern about Professor Tribe's suggestion that courts should safeguard individual autonomy because it is connected up with institutional arrangements. More specifically, Coenen worries that this way of thinking about rights might ultimately narrow -- rather than broaden -- the Court's use of structural inference. Coenen suggests that courts should not apply structural inference in individual-liberty cases on the theory that those cases have institutional dimensions. Rather, courts should use the methodology of structural inference in individual-liberty cases because individual liberties are important in and of themselves.