Neoformalist Constitutional Construction and Public Employee Speech

21 University of Pennsylvania Journal of Constitutional Law 439 (2018)

46 Pages Posted: 8 Feb 2019

See all articles by Scott R. Bauries

Scott R. Bauries

University of Kentucky College of Law

Date Written: December 31, 2018


This Article examines, evaluates, and prescribes improvements to a familiar form of constitutional construction favored by neoformalists — the preference for rules over standards. Constitutional law development can be understood as being composed of two judicial tasks — interpretation and construction. Judicial interpretation of the Constitution involves determining the semantic meaning of the words contained in the document. Once that semantic meaning is determined, the interpreted meaning must be constructed into legal doctrine for application in court. Sometimes, that construction involves the articulation of the legal doctrines based on the interpreted constitutional text that will govern a particular case and those similar to it. Legal neoformalists and legal realists disagree as to how this latter form of construction should occur — the former preferring rules and the latter preferring standards — but this portion of the “construction zone” is where the rules-versus standards debate resides. This Article refers to the formalist, or “rules,” side of the debate as neoformalist constitutional construction. Neoformalist constitutional construction has many critics and defenders. But few, if any, scholarly treatments seek to evaluate it in the real world of judging, or seek to tease out its ideal conditions. This Article fills that gap by examining neoformalist constitutional construction on its own terms—whether it actually serves neoformalist values, and under what conditions it might do so optimally. Employing a case study, this Article shows that neoformalist constitutional construction is bound to fail, absent changes to two judicial practices: one, the inordinate deference that lower courts grant to Supreme Court dicta; and two, the tendency of Supreme Court justices to over-justify their rulings.

Suggested Citation

Bauries, Scott R., Neoformalist Constitutional Construction and Public Employee Speech (December 31, 2018). 21 University of Pennsylvania Journal of Constitutional Law 439 (2018). Available at SSRN:

Scott R. Bauries (Contact Author)

University of Kentucky College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States

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