The Pros and Cons of Politically Reversible 'Semisubstantive' Constitutional Rules

Abstract

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. For such an effort to succeed, however, those decision makers must comply with special, deliberation-enhancing procedural requirements crafted by courts to ensure that constitutional concerns receive fair attention in the lawmaking process.

Is semisubstantive review legitimate and sensible? In this Article, the author disentangles — and then responds to — each of ten critiques that judges and scholars have directed at semisubstantive decision making. While acknowledging that most of these critiques have some merit, the author concludes that courts should continue to deploy semisubstantive doctrines as one, but not the only, tool of constitutional review. This approach, it is argued, serves a worthy aim. It protects constitutional values in a meaningful way, while taking due account of the salience of republican self-rule.

Keywords: Constituional Law, Semisubstative, Courts, Decision Making, Constitutional Review, Jurisprudence

JEL Classification: K19