Four Responses to Constitutional Overlap
39 Pages Posted: 5 Aug 2019 Last revised: 6 Jan 2020
Date Written: July 31, 2019
Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment, and so forth. In cases such as these, how should courts respond to the fact that multiple, rights-based rules bring themselves to bear on the constitutional validity of the government action under review?
This Essay, written for a symposium on Timothy Zick’s new book about the relationship between the First Amendment and other rights-based rules, describes four different doctrinal responses that courts might pursue when confronting such instances of “constitutional overlap.” Specifically, where a single government action plausibly implicates the protections of multiple, rights-based rules, courts might: (1) separate the overlapping rules and apply each one without reference to any of the others; (2) combine the overlapping rules and find in their collective, cumulative force an independently sufficient basis for invalidating the action under review; (3) consolidate the overlapping rules to yield a single analytical framework said to effectuate the overlapping rules’ redundant commands; or (4) displace all but one of the overlapping rules by identifying a single such rule as the exclusive ground for decision. With this descriptive taxonomy on the table, the Essay goes on to offer some tentative prescriptive suggestions, sketching out a set of “guiding principles” (and a corresponding decision procedure) that might assist courts in identifying the appropriate response to overlap in a given constitutional case.
Suggested Citation: Suggested Citation