Combining Constitutional Clauses

64 Pages Posted: 28 Feb 2015 Last revised: 8 Jun 2017

See all articles by Michael Coenen

Michael Coenen

Seton Hall University Law School

Date Written: February 26, 2015

Abstract

Some constitutional questions simultaneously implicate multiple, overlapping provisions of the Constitution’s text. In resolving these questions, the Supreme Court typically addresses each of the relevant clauses in separate and sequential fashion, taking care not to let its analysis of one such clause affect its analysis of any other. But every so often the Court takes a different approach, looking to the clauses in combination rather than in isolation. The Court has sometimes suggested, for instance, that two or more rights-based provisions might require the invalidation of government action, even where no one of the provisions would do so on its own. The Court has also suggested that a federal law might fall too far outside the scope of Article I and too far within the scope of a rights-based provision to withstand constitutional attack. And the Court has very occasionally suggested that a congressional enactment might qualify as a “necessary and proper” means of enforcing multiple enumerated powers at once. In all of these cases, the Court has embraced (or at least tinkered with) forms of what I call “combination analysis” — justifying judicial outcomes by reference to multiple clauses acting together, as opposed to individual clauses acting alone.

This Article presents a systematic examination of combination analysis in U.S. constitutional law. In so doing, it seeks to make four contributions to the burgeoning scholarly literature on the subject. First, the Article collects and taxonomizes existing examples of combination analysis in U.S. Supreme Court doctrine, demonstrating that “combination arguments” have enjoyed a wider range of application than has thus far been supposed. Second, the Article examines the conceptual structure of combination analysis, revealing in particular some underappreciated functional similarities between combination-based constitutional reasoning and other more commonly accepted tools of public law adjudication (including, for instance, arguments based on “constitutional structure” and arguments based on the “constitutional avoidance” canon). Third, the Article sorts through the practical “pros” and “cons” of combination analysis, shedding light on the questions of whether and if so when courts should advance combination arguments in the course of resolving a particular case. Finally, the Article offers some preliminary guidance regarding the implementation of combination analysis, identifying in particular four different types of “combination errors” that courts should strive to avoid. What ultimately emerges from the discussion is the conclusion that combination analysis represents a real and conceptually valid method of constitutional reasoning, which, at least under some circumstances, stands to benefit the development of constitutional law.

Suggested Citation

Coenen, Michael, Combining Constitutional Clauses (February 26, 2015). University of Pennsylvania Law Review, Vol. 164 (2015). Available at SSRN: https://ssrn.com/abstract=2570851

Michael Coenen (Contact Author)

Seton Hall University Law School ( email )

1109 Raymond Blvd.
Newark, NJ 07102
United States

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