Mitchell N. Berman

Constitutional Decision Rules

Increasingly, constitutional theorists are turning attention away from the modalities of constitutional interpretation (text, history, structure, etc.) and toward judicial outputs that, while featuring in constitutional adjudication, are something other than a courts determination of what the Constitution means. We might say that theorists are focusing less on constitutional meaning, more on constitutional doctrine. Despite this happy shift in emphasis, our collective understanding of the conceptual structure of constitutional doctrine remains woefully underdeveloped. For many, doctrine remains a conceptually undifferentiated mass of principles, reasons, tests, and frameworks. This is unfortunate, for no body of knowledge can long advance without self-critical classification. It is time, accordingly, to develop a functional taxonomy of constitutional doctrine. This Article takes a first and partial stab at such a taxonomy by distinguishing two components of judge-announced constitutional doctrine: statements of what the Court takes the Constitution to mean and instructions directing judges how to determine whether that meaning is complied with. Coining terms, I call the first type of doctrine a constitutional operative proposition, and the second type a constitutional decision rule. Drawing from such important recent Supreme Court decisions as Board of Trustees of the University of Alabama v. Garrett and Dickerson v. United States, this Article contends that vastly many constitutional doctrines are better understood not as judicial interpretations of the Constitution (operative propositions) but, rather, as instructions regarding how to decide whether the operative propositions are satisfied (decision rules). And it argues that recognizing the difference is likely to have broad consequences. For example, courts will better understand their own doctrines - better enabling them to sensibly revise and refine them - if they appreciate the respects in which a given doctrine communicates a decision rule rather than an operative proposition. Perhaps, say, operative propositions deserve greater stare decisis weight than do decision rules. Furthermore, this taxonomic distinction bears upon Congresss role in constitutional law-making. Although scholars frequently debate how much deference courts should accord Congresss constitutional interpretations, that is an infelicitous formulation of the issue. As Richard Fallon has recently taught, the truer, broader question concerns what role Congress should have in constitutional implementation. And judge-made constitutional decision rules may be congressionally defeasible where judicial operative propositions are not. Discrete payoffs from the operative proposition/decision rule distinction are valuable. But to focus narrowly on them risks missing the forest for the trees. Fundamentally, this Article offers an explicit (though partial) conceptualization of the logical structure of constitutional law - a conceptualization bearing a family resemblance to Monaghans work on constitutional common law, Sagers exploration of underenforced constitutional norms, Strausss defense of prophylactic rules, and Fallons focus on constitutional implementation, yet reducible to none of them. This novel conceptualization makes better sense of much of contemporary constitutional scholarship and of many of the Supreme Courts most significant decisions. No doubt considerable distance toward a complete and precise taxonomy remains. But even incremental advances in detailing the conceptual map of constitutional adjudication can purchase large improvements in our ability to negotiate the terrain.

On Interpretivism and Formalism in Sports Officiating: From General to Particular Jurisprudence

By what standards can rules, norms, and practices of sport be meaningfully or appropriately evaluated? Naturally, such rules and practices can be evaluated by reference to general—i.e., “external”—moral or other normative standards. Similarly, the practices of a given sport can be evaluated by reference to that sport’s own rules. But do sports furnish standards, principles, or values, not contained within or reducible to their formal rules, against which the sport’s rules and practices are rationally evaluable? As regular readers of this journal know, philosophers of sport have increasingly converged on an affirmative answer to this question, a position that Robert Simon dubbed “internalism.” (Simon 2000) Furthermore, many sport philosophers follow J.S. Russell (Russell 1999) in believing that Ronald Dworkin’s work in the philosophy of law (e.g., Dworkin 1986) offers the most compelling account or defense of internalism. As applied to sport, Dworkin’s theory, “interpretivism,” provides (to a first approximation) that abstract principles are part of the law governing a sport and that those principles can be determined by reflection on the values and purposes that best cohere with the institutional history of the sport and show it in its best light.

Sprints, Sports, and Suits

Philosophy of sport orthodoxy maintains the following three theses: (1) all sports (or all refereed sports) are games; (2) games are as Suits defined them; and (3) sprints are sports. This article argues that these three theses cannot be jointly maintained and offers exploratory thoughts regarding what might follow.

Conditional spending and the conditional offer puzzle

Although the individual mandate was upheld and the Commerce Clause may have been cabined, the decision to strike down a significant element of the “Medicaid expansion” may prove to be the most significant aspect of the Supreme Court’s decision in NFIB v. Sebelius. Under the Affordable Care Act (ACA), States were required to extend Medicaid coverage to all individuals under the age of 65 with incomes below 133 percent of the poverty line, a new “essential health benefits” package was required for all new Medicaid recipients, and the increased costs due to the expansion would be entirely covered by the Federal government through 2016, with the Federal payment gradually decreasing to a minimum of 90 percent of the total cost from the expanded coverage. The element found to be unconstitutional was § 1396c of the ACA, which permitted the withdrawal of all Federal Medicaid funds from those States that did not comply with the ACA’s requirements for Medicaid expansion. The effect on access to health care may be significant: roughly half of those expected to gain coverage under the ACA were going to gain it through the Medicaid expansion; it is unclear how many States will choose to opt into that expansion in the absence of § 1396c. Additionally, the argument offered by the Court to strike down that provision might be used to attack other federal programs — concerning transportation, social services, environmental protection, and others — that have a similar structure. This paper will demonstrate that the argument rests on a theoretical mistake concerning the relationships between coercion, compulsion, and political accountability and that, further, this mistake is not one legally forced upon the Court.