A Job for the Judges: The Judiciary and the Constitution in a Massive and Complex Society

Abstract

It is time for constitutional analysts to form constructs faithful to the realities of constitutional decisionmaking. We live in an immense and complex society. Our public decisions are made by complicated processes in which voters, interest groups, lobbyists, and the press interact with legions of legislators, administrators, and other public employees. These governmental processes produce countless government decisions. No matter how aggressive the courts or grandiose the constitutional theory only a tiny percentage of these governmental actions can ever be seriously reviewed by the judiciary. Whatever the fears of the proponents of judicial restraint, the judiciary is a societal decisionmaker already severely constrained by its physical limits. Yet, on rare occasions, the judiciary plays a significant role in societal decisionmaking. These rare occasions define what we call constitutional law and are themselves defined by a basic institutional choice: the courts decide that they and not some other societal decision-maker should resolve the substantive issue in question. From this vantage point, the study of constitutional law becomes the study of this institutional choice, which, in turn, means the study of alternative societal decisionmakers, their comparison and matching. The judicial role is defined by asking when a constrained and fragile judiciary should substitute its decisions for a sometimes badly malfunctioning political process. This article explores the elements of institutional choice in constitutional law. It shows that institutional analysis is essential but largely ignored in present constitutional scholarship and then confronts the task of building such an analysis.

Keywords: decision-making, constitutional law, judicial review, rights, institutional choice, comparative institutional analysis, constitutional theory, political malfunction, judicial resources, fundamental rights, suspect classification, equal protection, minoritarian bias, majoritarian bias, constitution

JEL Classification: H1