Rights, Rules and the Structure of Constitutional Adjudication: A Response to Professor Fallon

Abstract:     
Constitutional doctrine is typically rule-dependent. A constitutional challenge is typically viable only if there exists a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Rights against Rules: The Moral Structure of American Constitutional Law, 97 Michigan Law Review 1 (1998), I proposed one model of constitutional adjudication that is consistent with rule-dependence (the Adler Model). Under the Adler Model, the function of reviewing courts is not to vindicate the personal rights of claimants but is instead to repeal or amend constitutionally invalid statutes and other rules. Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. See Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321 (2000). Fallon suggests that a reviewing court should overturn the application of a constitutionally invalid rule to a given claimant if and only if that rule contains no valid severable "subrule" that includes the claimant; and he criticizes the Adler Model on various counts, in particular for severing the connection between constitutional adjudication and personal rights. In this response to Professor Fallon's article, I reply to Fallon's criticisms and, more generally, attempt to demonstrate that the Fallon Model is not supported by various considerations that might seem to favor it. The Fallon Model is a better account of rule-dependence than the Adler Model only if the Fallon Model better implements constitutional norms, and Professor Fallon has not shown or even tried to show that it does.

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