Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis

Abstract

When the Supreme Court decides whether the action of another branch of government is constitutionally valid, it is inevitably allocating institutional responsibility. This article argues that constitutional law is best understood and evaluated by giving central attention to this allocation of decision-making and, therefore, to the relative attributes of the alternative institutional decision-makers. The article, in other words, proposes a comparative institutional approach to constitutional law. This comparative institutional analysis has three fundamental features:(1) Courts and legislatures differ in their capacities to solve substantive questions, and the degree and kind of these differences can vary significantly. (2) The relative difficulty of various substantive questions arises from social and political realities too varied and subtle to be adequately captured in the broad analytical categories, such as substance and process or principle and policy, employed by many constitutional scholars. In general, such simple bifurcations are inferior to an approach that can more naturally accommodate the gradations in and interplay among these underlying factors. (3) Although a role for courts in our constitutional system might be based on the identification of flaws in the legislative process, thereby overcoming the presumption of constitutionality traditionally accorded the more democratic institutions, identification of a legislative flaw should not be conclusive; the analysis must be comparative. Whether and to what extent the court takes the decision from the legislature depends on the relative merits of the judiciary as a substitute decision-maker.

The first section of the article sketches the approach I propose and provides examples of its application. The remainder provides a critique of the way institutional comparison is treated in several prominent existing approaches to constitutional law. I begin with the approach of John Hart Ely, which emphasizes the role of malfunction in the democratic process as a means for determining the proper scope of judicial review. I then turn to approaches to institutional analyses that place heavy emphasis on the powers of judicial reasoning and neutrality. Finally, I consider the approaches that deal with institutional analysis by limiting its relevance.

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