Constitutional Law's Conflicting Premises

Abstract

Doctrinal inconsistency is Constitutional Law’s special feature and bug. Virtually every salient doctrinal domain presents major precedents operating in tension. Bodies of precedent are rarely abandoned simply because a newer strand makes an older one appear out of place. And when an earlier strand is redeployed or substituted, the once-newer strand likewise persists. This dynamic process tasks law students, often for the first time, with reconciling the seemingly irreconcilable. These doctrinal phenomena share as their root cause dual persistent conflicting premises.

Some examples: Standing protects congressional power to monitor the executive branch, or it limits congressional monitoring when the selected means risk foisting the judiciary into executive prerogatives. The Commerce Clause empowers Congress to resolve structural coordination challenges among states, or it ensures a discrete regulatory sphere into which Congress may not enter even as needed to ameliorate such coordination challenges. Equal protection protects African-Americans against racially discriminatory laws, or it lets such laws stand provided they are non-subordinating. Similar conflicting premises pervade such high-profile areas as Separation of Powers and Free Speech.

Beneath each of these, and other, conflicting bodies of caselaw rest two persistent conflicting premises. Identifying these premises, and explaining the dynamic processes that generate them, proves essential to understanding several of Constitutional Law’s most critical features, including how various bodies of caselaw fit together. This Article provides the first systematic exploration of this phenomenon along with essential insights that explain several of Constitutional Law’s most notorious anomalies. These include structural constitutionalism, individual rights, and free speech.

Keywords: commerce clause, separation of powers, equal protection, first amendment, game theory, dormant commerce clause