The Wandering Doctrine of Constitutional Fact

69 Pages Posted: 13 Aug 2016

Date Written: August 10, 2016


Perhaps the most underrated doctrine of constitutional law or federal jurisdiction is the constitutional fact doctrine. Developed in the 1920s and 30s, the doctrine at its core dictates that factual issues on which the constitutionality of governmental action turns must be determined de novo by an Article III federal court or state court, with no deference given to resolution of these factual issues by an administrative or executive agency. For example, if an agency determines that a particular regulation affects interstate commerce, that mixed law-fact question is subject to de novo review in the courts. If an agency determines that particular expression is obscene and therefore constitutionally the subject of suppression, the courts will review that determination de novo. If an administrative regulator determines that defamation of a public figure was uttered with knowledge of falsity, thereby taking it out of the First Amendment’s protective sphere, that factual determination will be subjected to de novo judicial review.

Largely because the doctrine came into existence in the era of the now-dishonored doctrine of economic substantive due process, it was thought by many to have fallen into disrepute and eventually obscurity. But recent developments in a variety of areas of constitutional law, including freedom of expression and true threats, police officers’ use of excessive force and military tribunals’ procedural treatment of enemy combatants, underscore the doctrine’s continued vitality.

In recent years, however, the doctrine has lost its conceptual bearings. The Supreme Court, exercising its “supervisory” power, has extended the doctrine to areas where it has no proper role to play, including appellate judicial review of factual findings by lower courts and juries. For the constitutional fact doctrine to achieve its legitimate goals, it must be rethought and reshaped. That is the purpose of this Article. By putting forth an entirely new conceptual taxonomy of the constitutional fact doctrine and then exploring the conceivable constitutional rationales behind the doctrine, we are able to demonstrate that the doctrine is best served by categorical rejection of the “supervisory” theory as the principle’s intellectual foundation. Instead we focus on the Due Process Clauses and Article III, finding potential problems with both rationales but fashioning a creative synthesis of the two constitutional sources that provides the strongest intellectual foundation for the constitutional fact doctrine.

Keywords: Constitutional law, constitutional fact, due process, separation of powers, Article III, Supreme Court, judicial review, administrative law

JEL Classification: K10, K19, K30, K39

Suggested Citation

Redish, Martin H. and Gohl, William, The Wandering Doctrine of Constitutional Fact (August 10, 2016). Northwestern Law & Econ Research Paper No. 16-13, Northwestern Public Law Research Paper No. 16-18, Available at SSRN: or

Martin H. Redish (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

William Gohl

Northwestern University, Pritzker School of Law, Students ( email )

Evanston, IL 60208
United States

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