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Constitutional Decision Rules University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2004 Constitutional Decision Rules Mitchell N. Berman University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Conflict of Laws Commons, Constitutional Law Commons, Courts Commons, Ethics and Political Philosophy Commons, Legal Commons, Legal History Commons, and the Legal Theory Commons Repository Citation Berman, Mitchell N., "Constitutional Decision Rules" (2004). Faculty Scholarship at Penn Law. 1468. https://scholarship.law.upenn.edu/faculty_scholarship/1468 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. BERMANBOOKALTERED.DOC 4/7/04 10:46 AM 2 Virginia Law Review [Vol. 90:1 VIRGINIA LAW REVIEW VOLUME 90 MARCH 2004 NUMBER 1 ARTICLES CONSTITUTIONAL DECISION RULES Mitchell N. Berman* INTRODUCTION.................................................................................4 I. DICKERSON, MIRANDA, AND THE PROPHYLACTIC RULES DEBATE.....................................................................................17 A. The Miranda Controversy in a Nutshell ...............................18 B. Dickerson’s Failure to Resolve Miranda’s Status and Legitimacy ................................................................................22 II. THE PROPHYLACTIC RULES DEBATE ....................................28 A. Background: Two Models of Constitutional Adjudication 30 B. Prophylactic Rules and Overprotection................................38 C. Prophylactic Rules Defended (or Denied)...........................40 III. A DIFFERENT WAY TO DIVIDE THE TERRAIN: CARVING DOCTRINE INTO OPERATIVE PROPOSITIONS AND DECISION RULES........................................................................................47 A. Garrett and the Distinction Between Operative Propositions and Decision Rules..................................................................48 B. The Ubiquity of Constitutional Decision Rules ..................57 1. The Due Process “Some Evidence” Rule........................60 2. The Pearce Resentencing Rule..........................................61 * Bernard J. Ward Centennial Professor in Law, The University of Texas at Austin; Visiting Professor of Law, The University of Chicago Law School (Winter and Spring, 2003). Earlier versions of this Article were presented at faculty workshops at Northwestern University Law School and the University of Chicago Law School. I am grateful to participants at those events, and to Matt Adler, Larry Alexander, John Duffy, Richard Epstein, Yale Kamisar, Susan Klein, Douglas Laycock, Tom Merrill, Eric Posner, Larry Sager, David Strauss, and Cass Sunstein for helpful comments and conversations. Jason Glahn, Caitlin Kasmar, and David Upham provided excellent research assistance. BERMANBOOKALTERED.DOC 4/7/04 10:46 AM 2004] Constitutional Decision Rules 3 3. Congress’s Tax Power and the Regulatory Effects Problem..............................................63 4. Land Use Exactions...........................................................65 5. The Enrolled Bill Doctrine ...............................................67 6. The Nondelegation Doctrine ............................................69 7. Standing and the “Imminent” Injury Requirement ........71 IV. ELABORATING THE DISTINCTION: WHYS AND HOWS..........73 A. Some Values of the Distinction .............................................77 1. Extra-adjudicatory Constitutionalism..............................78 a. Constitutional Culture.................................................78 b. Conscientious State Actors..........................................81 2. The Making of Constitutional Doctrine ..........................82 a. Legitimacy....................................................................82 b. Doctrinal Refinement..................................................92 c. The Congressional Role..............................................93 3. Summary.............................................................................97 B. An Illustration..........................................................................99 V. DICKERSON REVISITED: MIRANDA AS A DECISION RULE .105 A. The Miranda Doctrine Taxonomized .................................107 1. The Operative Proposition..............................................107 2. The Decision Rule............................................................114 a. The Rule Itself and a Common Misconception ......114 b. The Rationale.............................................................116 B. Prophylactic Decision Rules? Understanding Overprotection.......................................................................122 C. The Conclusive Presumption Red Herring ........................125 1. The Argument Straight-Up .............................................127 2. The Argument from Authority .......................................130 3. The Argument from Constitutional Legitimacy............140 D. Miranda’s Progeny.................................................................141 1. Retroactivity......................................................................142 2. Impeachment....................................................................143 3. Fruits .................................................................................143 4. Emergency exception.......................................................151 CONCLUSION .................................................................................152 BERMANBOOKALTERED.DOC 4/7/04 10:46 AM 4 Virginia Law Review [Vol. 90:1 [T]he law cannot hope to sustain [its] compound burden of stabil- ity, flexibility, and transparency unless it pays scrupulous attention to its own taxonomy . [T]he understanding of the natural world has depended on patient, self-critical classification. Lawyers deceive them- selves if they think they are exempt from the same elementary intellec- tual burden. This was already obvious to Gaius in the second century and still obvious to Blackstone in the 18th. The law simply could not be understood unless it took care to classify itself ‘methodically.’ If it did not properly understand itself, its decision-making would be erratic and doomed to ridicule.1 INTRODUCTION OR generations, American constitutional theorists and judges have F struggled with problems of constitutional interpretation, exploring how meaning is properly derived from the Constitution and, insofar as the answer may be different, how courts ought to derive such meaning. Recent years, however, have seen an upsurge in scholarship addressed to a related but distinct subject. Without entirely abandoning debates over constitutional interpretation, constitutional theorists have started increas- ingly to wonder about those judicial outputs that feature in the enterprise of constitutional adjudication and yet are something other than a court’s determination as to what any given provision of the Constitution means. Theorists have turned their attention from constitutional meaning to what we may call, at least on a first pass, constitutional doctrine. Obviously, constitutional scholars have always been interested in doc- trine in the sense of caring to elucidate, clarify, rationalize, or propose re- visions to the rules governing some area of constitutional law. This de- scribes the dominant mode of constitutional scholarship for most of the history of the field. And although arguably endangered, it is far from ex- tinct. Think of, say, Douglas Laycock, Donald Regan, David Shapiro, and, in much of his work, Laurence Tribe.2 But the previous paragraph aims to draw attention to a different genre of scholarship. The growing genre that I will contrast with scholarship dedicated to methods of constitutional interpretation examines, not any given body of doctrine (such as First Amendment doctrine or Commerce Clause doctrine), but some of the potentialities and challenges that arise from the claimed exis- 1 Peter Birks, Rights, Wrongs, and Remedies, 20 Oxford J. Legal Stud. 1, 3 (2000). 2 To name names in this context is perilous, of course, because the scholars who could with equal or even greater justice be included on such a list must number in the dozens. I provide these illustrations simply to make clearer the nature of the contrasts I wish to draw. BERMANBOOKALTERED.DOC 4/7/04 10:46 AM 2004] Constitutional Decision Rules 5 the potentialities and challenges that arise from the claimed existence of doctrine, conceived as a category of judicial work product— interpretations, reasons, mediating principles, and implementing frame- works—more comprehensive than judge-interpreted constitutional mean- ing.3 Insofar as this strain of scholarship concerns itself with the fact of doctrine but not with its particular content, we may fairly term it meta- doctrinal. Especially notable early examples of metadoctrinalism were Henry Monaghan’s 1975 Harvard Law Review Foreword, “Constitutional Com- mon Law,”4 and, following two volumes later in the same journal, Larry Sager’s “Fair Measure.”5 Monaghan’s Foreword had two basic objectives: to draw attention to the fact “that a surprising amount of what passes as au- thoritative constitutional ‘interpretation’ is best understood
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