Anti-Evasion Doctrines in Constitutional Law

Abstract

Recent constitutional scholarship has focused on how courts — the Supreme Court in particular — “implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision making — strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not to other actors; implementing doctrines can be fashioned as rules or standards; doctrines can over-enforce or under-enforce constitutional commands. In this essay, though, we unsettle this dialectical view of doctrinal design by identifying and describing anti-evasion doctrines (AEDs) in constitutional law: doctrines developed by courts — usually designed as standards, as opposed to rules — that supplement other doctrines (designed as rules) to implement particular constitutional principles.

AEDs touch all areas of constitutional law. In addition to being ubiquitous, AEDs have a long pedigree. Early examples appear in famous Marshall Court opinions; thus, they are not some modern innovation. In addition to naming AEDs, describing the forms they take, and the characteristics the forms share, this essay also seeks to describe the benefits and payoffs in constitutional law resulting from AEDs. On the plus side, AEDs are designed to help optimize enforcement of constitutional principles — by addressing “problems with rules,” for example. This gap-filling function comes at a cost, however. Not only does the addition of AEDs tend to increase doctrinal complexity, that complexity can increase decision costs for courts, and dilute the benefits of using rules in the first place. The tradeoffs are almost mirror images of the benefits.

We also discuss the implications of AEDs for constitutional doctrine generally. That they seem to be everywhere in constitutional law suggests that doctrinal complexity should be seen as a feature of our system, and not a bug, because it attempts to ensure form will not trump constitutional substance. If a certain amount of complexity is inevitable, then that suggests one should be skeptical about claims that constitutional law could be rationalized by the abandonment of the “formulaic Constitution,” in favor of simple, predictable, and easy to apply rules. In fact, the presence of AEDs furnishes strong evidence for Frederick Schauer’s “convergence hypothesis,” which holds that “when authorized to act in accordance with rules, rule-subjects will tend to convert rules into standards by employing a battery of rule-avoiding devices that serve to soften the hard edges of rules,” and vice-versa. Finally, highlighting the role AEDs play in constitutional doctrine, for good or ill, is another reason to take doctrine, its formation, and application by courts, seriously.