CONSTITUTIONAL LAW'S CONFLICTING PREMISES.

• Author: Steams, Maxwell L.

INTRODUCTION 448 I. THE INDUCTIVE PROFFER: FIVE DOC:TRINES WITH DUAL PERSISTENT COMPETING PREMISES 452 A. Dual Persistent Conflicting Premises in Structural Constitutional Law 452 1. Standing 452 2. The Commerce Clause 463 3. Separation of Powers 471 B. Dual Persistent Conflicting Premises in Equal Protection and Race and in Speech 474 1. Equal Protection and Race 475 2. First Amendment--Speech: Incitement and Obscenity 479 II. THE DEDUCTIVE PROFFER: PERSISTENT DUAL CONFLICTING PREMISES 484 A. Dual Persistent Conflicting Premises as a Pure-Nash Equilibrium 485 B. Why Dual Persistent Conflicting Premises Are Not Pure-Nash in Other Doctrinal Settings 497 1. Tort Doctrine 498 2. Contract Doctrine 500 III. SETTLEMENT, UNSETTLEMENT, AND PREMISES 501 A. Multiple Premises and Unsettlement 502 B. Constitutional Hybrids: Agency Deference Rules, Criminal Procedure Revisited, and the Dormant Commerce Clause Doctrine 506 1. Constitutional Criminal Procedure Revisited 507 2. The Dormant Commerce Clause Doctrine 508 3. Agency Deference Rules 511 CONCLUSION 512 INTRODUCTION

Despite the enthusiasm law students bring to the subject, constitutional law presents unique pedagogical challenges. The problem is not merely doctrinal complexity or inconsistency. Such attributes also characterize common-law or code-based domains. An important dynamic nonetheless distinguishes constitutional law from such bodies of law as contract, tort, and property. Although many legal domains raise challenges of doctrinal cohesion, constitutional law is especially prone to a phenomenon that this Article describes as dual persistent conflicting premises. This phenomenon provides the basis for a deeper understanding of several of constitutional law's most salient doctrines, for unmasking endemic features of constitutional lawmaking, and for exploring important relationships across otherwise disparate bodies of law.

Some preliminary definitions are essential in defending this claim. Premises must be distinguished from outcomes, goals, and values. Premises are not outcomes. Case outcomes can conflict for any number of reasons, including faulty analysis, inattentiveness to precedent, and infusing equitable principles to mitigate problematic outer edges of defined rules. Premises are not goals. Across various institutional settings, policymakers, including legislators or bureaucrats, routinely embrace myriad goals,(1) often as divergent as the policymakers themselves, or their consutuencies. Although early formalists imagined that judges eschew personal or ideological goals in resolving cases, since the advent of legal realism most Judicial observers regard that assumption as naive.(2) Subject to institutional constraints, sophisticated jurists pursue various goals, including furthering ideological commitments.(3) Premises are also not values, although values may influence how premises are selected or formed. Whereas values can be expressed at varying levels of abstraction, premises, properly understood, reside at the most granular level of the logical system of which they are a part.

A premise is a foundational supposition assumed to be true, but not proven by the larger system that it helps construct.(4) Premises have three essential features: (1) they are irreducible minima--there might be more than one--operating at a granular level; (2) they form a foundational part of the system of which they are part; and (3) they cannot be proven deductively within that system, but rather, are suppositions on which the logical system rests. All logical systems are built upon, or derive from, at least one premise.(5)

Individual cases, and bodies of caselaw, embed premises. Legal premises are frequently unarticulated, requiring special training to discern. Developing this skill in the context of caselaw and other legal sources occupies much early law school pedagogy, especially in the first year. Whereas goals or values are potentially unlimited, premises are both limited and limiting, cabining values and constraining goals. Within law, premises potentially impede desired doctrinal objectives and case outcomes.

Broadly conceived or within specified domains, the law comprises discrete logical systems.(6) To be sure, formal logical systems, such as mathematics or philosophy, are susceptible to a level of internal consistency rarely observed in law. Although legal systems are more loosely structured, bodies of caselaw are nonetheless systems of reasoning resting upon premises. Premises can derive from precedent or external authorities, including constitutions, statutes, regulations, or even scholarly works.

Although all bodies of caselaw rest on premises, the tendency toward dual persistent conflicting premises endemic to constitutional law distinguishes that domain from others.(7) Formally demonstrating this raises the inexorable challenge of proving a negative. Thankfully, disproving that other legal domains are prone to dual persistent conflicting premises is unnecessary. This Article instead provides two corroborating, and mutually reinforcing, proffers, one inductive and one deductive.

The inductive proffer takes a familiar form: this Article presents five prominent constitutional doctrines, each revealing dual persistent conflicting premises. None is obscure or selected to make a point. Each resides at the core of standard constitutional law curricula(8): standing, the Commerce Clause, separation of powers, equal protection and race, and incitement and obscenity. None reveal singular, serial, or unlimited premises. Instead, each reveals two premises in persistent conflict.

Although disproving that other domains possess this characteristic is impossible, the second, deductive proffer, models the dynamic processes giving rise to this phenomenon within constitutional law and compares the alternative dynamics operating within specified common-law domains.(9) Applying a simple game theoretical insight, the analysis presents dual persistent conflicting premises as a pure-Nash equilibrium among salient constitutional law domains. A pure-Nash equilibrium is an outcome or set of outcomes following each player's rational response to the expected rational strategies of other players absent specific knowledge of those strategies or coordination among players, and from which no player can obtain an improved payoff with a unilateral change in strategy.(10)

Within salient constitutional domains, effective jurists seeking to shift the direction of caselaw in tension with an extant premise will seek to recast that premise to yield the favored result while persuading a majority to join. The strategy typically requires attracting one or more of the Supreme Court's median Justices, who typically resist dramatic doctrinal change. More generally. Supreme Court Justices are averse to overturning precedent, preferring to distinguish even seemingly problematic precedents.(11) Persuading a majority, therefore, ordinarily demands a sufficient nexus between the extant and recast premises to avoid signaling immediate or projected overruling of notable cases resting upon the earlier premise. An effective strategy requires constructing a revised premise connected with, yet departing from, the extant premise. This strategy facilitates the desired case outcome while condoning earlier precedents. Dual persistent conflicting premises emerge as the pure-Nash equilibrium.

Not all jurists pursue this strategy effectively. Some go it alone, effecting desired case outcomes, albeit at a price. Jurists insisting on a premise disconnected from an extant premise risk isolation on a fragmented Court. Concurring in the Judgment can provide a critical vote, but by failing to attract a majority in favor of a recast premise, doing so is unlikely, generally, to move doctrine in a preferred direction. That strategy requires a majority coalescence on a recast premise without entirely abandoning the earlier premise.

These combined proffers reveal doctrinal inconsistency as constitutional law's special feature and bug. Virtually every salient 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 the earlier strand is redeployed, the once-newer strand likewise persists. This dynamic process leaves law students, often for the first time, tasked with reconciling the seemingly irreconcilable.

Some notable 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 nonsubordinating. Similar conflicts pervade such high-profile areas as separation of powers and free speech. Identifying these premises, and understanding the mechanisms that produce them, helps explain several of constitutional law's most notorious anomalies, affecting structural constitutionalism, individual rights, and free speech.

The Article proceeds as follows. Part I provides the inductive proffer, reviewing five salient constitutional doctrines, each revealing dual persistent conflicting premises. Part II provides the deductive proffer, relying upon elementary game theory to model how goal- or policy-oriented Supreme Court Justices successfully extricate doctrine from prior constraints by deploying a sufficiently related premise as to appeal to the Court's center while moving doctrine in a favored new direction. Surveying tort and contract law, this Part then models the differing dynamics affecting premise formation in such...