With Popular Constitutionalism and the Underenforcement Problem, (1) Professor Ernest Young enriches this symposium with his commentary on the legal, historical, and political underpinnings of constitutional federalism. (2) As I understand it, Professor Young makes three central claims in his article. First, he offers a descriptive claim, asserting that current constitutional doctrine underenforces federalism. (3) Second, he posits a causal claim, contending that the under or overenforcement of constitutional principles is in part shaped by history and politics. (4) And third, Professor Young issues a predictive claim that the Supreme Court may respond to libertarian popular constitutionalists (5) and the litigation involving the Patient Protection and Affordable Care Act (ACA) (6) by crafting doctrine that more aggressively enforces federalism. (7)
Professor Young's article is an illuminating and enjoyable read; I commend it to you. In this response essay, I critically explore his engagement of the law--politics dilemma and the careful predictions he offers regarding the future of constitutional doctrine. First, as Part II explains, Professor Young's descriptive claim about federalism doctrine engages the law--politics dilemma in a way that might not fully account for the role of judicial discretion. Second, Part III questions whether Professor Young's causal claim draws a sustainable distinction between law and politics when it seems simultaneously to integrate and delimit those two realms. Finally, Part IV argues that, independent of Professor Young's accounts of the law-politics elision, there are reasons to doubt his predictive claim; because "much remains unknown regarding public opinion about federalism," (8) it is not at all clear that the Court's doctrine will change in response to the constitutional politics (9) surrounding the ACA.
THE DESCRIPTIVE CLAIM: DOCTRINE, DISCRETION, AND THE LAW-POLITICS DILEMMA
Descriptively, Professor Young claims that current doctrine underenforces federalism. (10) I leave it to others to evaluate the veracity of Professor Young's descriptive claim, for such an endeavor is beyond the scope of this essay. Rather, my analysis of Professor Young's descriptive claim focuses on the relationship between law and politics implied in his account of constitutional doctrine.
Professor Young's article, as I interpret it, posits a two-part account of constitutional doctrine. (11) First, his causal claim, addressed in Part III, acknowledges doctrine's susceptibility to politics at the point of its formulation, or reformulation. His descriptive underenforcement claim, however, taken in its strongest form seems to suggest that, once formulated, doctrine determines legal outcomes to a substantial or complete extent. In short, the causal claim focuses on doctrine as a formative enterprise, while the descriptive claim pertains to doctrine as an applicative enterprise.
This section analyzes the strongest implications of Professor Young's applicative account of doctrine and the formalist view of the law it seems to trade on. That is, Professor Young's claim that current doctrine underenforces federalism (12) tends to depict law as an autonomous set of rules that "bind the judges as well as the judged." (13) This aspect of Professor Young's argument theorizes a crisp distinction between law and politics; law, in the form of doctrine, commands the outcome of legal disputes regardless of the political or historical context in which those disputes arise.
On this interpretation, Professor Young's account of doctrine is vulnerable to the criticism that it does not capture fully the interpretive practices that enable constitutional adjudication. (14) To be sure, Professor Young is correct that doctrine can constrain judges--particularly in lower courts. (15) But to the extent he identifies doctrine as the but-for cause of decisions he finds objectionable, (16) his argument (somewhat) assumes away the role of judicial discretion in those cases. …