Constitutional Constructions and Constitutional Decision Rules: Thoughts on the Carving of Implementation Space
Berman, Mitchell N., Constitutional Commentary
Let's start with the obvious: court-announced constitutional doctrine is frequently not identical to the announcing court's understanding of what the text of the Constitution means. Consider, for example, the doctrine that implements the First Amendment's Free Speech Clause. That Clause is terse: "Congress shall make no law ... abridging the freedom of speech." But a comprehensive statement of judicial doctrine effectuating that command would tax even the most expert First Amendment scholar. Here's just a first and partial stab:
A law constitutes an impermissible abridgment of the freedom of speech if: it regulates expression on the basis of its content or viewpoint and is not narrowly tailored to achieve a compelling governmental interest, except that content-based regulation of non-misleading speech that proposes a lawful economic transaction is permitted if the regulation directly advances a substantial government interest that could not be advanced equally well by a less speech-restrictive regulation, and except too that content-based regulation of speech is freely permitted if, inter alia, the regulated speech proposes an unlawful economic transaction or a lawful transaction in a misleading way, or if it is sexually explicit and as a whole appeals to the prurient interest, and depicts or describes sexual conduct in a patently offensive way, and lacks serious artistic, political, or scientific value, or if it includes the sexually explicit depiction of children, or if the speech, by its very utterance inflicts injury or tends to incite an immediate breach of the peace; all subject to the caveat that even when speech may permissibly be regulated, if that regulation takes the form of a prior restraint on its issuance, then the regulation is ordinarily presumptively impermissible; and furthermore, a content-neutral regulation of speech is impermissible unless it is narrowly tailored to achieve a significant government interest and leaves open ample alternative channels of communication.
As complicated as is this statement, it captures, at best, only some neighborhoods of constitutional free speech law. I have not yet said anything about those portions of the doctrine that govern defamation, intentional infliction of emotional distress, or invasion of privacy, or limited public fora, or campaign finance expenditures, or the speech of public employees, and so on.
Even with only a pre-reflective untheorized sense of what constitutional meaning is or amounts to, or what are the conceptual bounds of the activity of constitutional interpretation, it seems exceedingly unlikely that, in contributing to the formation of this intricate free-speech doctrine, Supreme Court Justices believed that each building block was a partial statement of what the First Amendment means, or that all they were doing in developing and announcing this doctrine falls within the bounds of the activity properly denominated interpretation, or that the output itself amounts to an interpretation of the First Amendment. In some ways, leading scholars have been drawing attention to just this point for 30-odd years (think of Henry Monaghan's work on "constitutional common law" and Larry Sager's on "underenforced constitutional norms"). (1) But Richard Fallon was particularly helpful in focusing attention on it a decade ago when urging that what federal courts do in the process of constitutional adjudication is more felicitously described under the capacious label "constitutional implementation" than as "constitutional interpretation." (2)
For a constitutional theorist, especially one of a more conceptual orientation, the question raised by this proposed change in perspective and vocabulary--from "interpretation" to "implementation"--is how best to conceptualize what is going on, or what may or should go on, in this implementation space. …