Constitutional doctrine frequently employs tests that operate on abstract conceptual inputs rather than objectively identifiable facts. Consider some examples: substantive due process doctrine directs attention to whether a violated “right” qualifies as fundamental or nonfundamental; Commerce Clause doctrine directs attention to whether a regulated “activity” qualifies as economic or noneconomic; the strict scrutiny test directs attention to whether a relevant “government interest” qualifies as compelling or noncompelling; and so forth. These sorts of decision rules call for an evaluation of variables whose scope, content, and character are frequently up for debate, thereby requiring courts to characterize constitutional inputs as a precondition to reaching constitutional results. To determine whether the government has violated a “fundamental right,” courts must first characterize the relevant right whose fundamentality is at issue. To determine whether a congressional enactment regulates an “economic activity,” courts must first characterize the relevant activity whose economic nature must be scrutinized. To determine whether a challenged law pursues a “compelling government interest,” courts must first characterize the relevant government interest whose importance is to be assessed. Tests of this sort thus implicate not just the familiar judicial challenge of evaluating a given variable by reference to an established doctrinal criterion, but also the less familiar (and often unnoticed) challenge of extracting from a fact pattern an operative characterization of the variable to be evaluated.
This Article examines these input-characterization problems as a general challenge of constitutional decisionmaking. The Article makes three contributions. First, the Article demonstrates the widespread presence of characterization problems within constitutional law, highlighting both the broad range of contexts in which these problems arise and the limited amount of attention they have thus far generated. Second, the Article explores the possibility of avoiding input-characterization problems through the reformulation of constitutional decision rules, considering in particular the tradeoffs implicated by the replacement of “characterization-dependent” decision rules with “characterization-resistant” alternatives. Finally, the Article works through the various methods by which courts might confront characterization problems on their own terms, asking whether there exist reliable and predictable means of selecting an authoritative input characterization from the many possibilities that the facts might afford. In sum, this analysis reveals that input-characterization problems are neither easily avoidable nor easily solvable, thus raising critical questions regarding the determinacy and coherence of the doctrine writ large.
Michael Coenen, Characterizing Constitutional Inputs, 67 Duke L.J. 743 (2018)
Available at: https://scholarship.law.duke.edu/dlj/vol67/iss4/2