Author:Kenneth L. Karst

Page 801

In constitutional law as in other pursuits of revelation, initiates commonly refer to "doctrines": bodies of rules or principles either authoritatively declared or systematically advocated. Some such doctrines have been simple; the ORIGINAL PACKAGE DOCTRINE is an example. Others, such as the INCORPORATION DOCTRINE, may become shorthand references to larger and more complex creations of the legal mind. More inclusively, one may speak of a doctrine as the body of principles ruling any branch of law, including constitutional law: the doctrine governing PRIOR RESTRAINTS on speech, for example, or the doctrine governing discrimination based on ILLEGITIMACY. In any such use, "doctrine" refers to a body of judicial interpretations of a particular branch of law.

Even more generally, one may speak of constitutional "doctrine" in the abstract, referring to the whole body of rules and principles resulting from the judicial process of CONSTITUTIONAL INTERPRETATION. Our constitutional law, apart from a few rules explicitly stated in the text of the Constitution (such as the requirement that a senator be thirty years old), consists almost entirely of doctrine made by judges in the tradition of the Anglo-American COMMON LAW. Doctrine thus develops as precedents are made by decisions in particular cases. One branch of constitutional doctrine, in fact, is designed in part to assure that the federal courts' lawmaking is informed by the need to apply doctrine to concrete facts. (See CASES AND CONTROVERSIES.) There is therefore a human quality in nearly every constitutional case; a court's opinion normally begins with a recitation of actual facts touching the lives of named individuals. One danger in an era of CLASS ACTIONS and INSTITUTIONAL LITIGATION is that those techniques carry some risk of squeezing the human flavor out of a case, with attendant costs to the process of keeping doctrine attuned to life. Yet implied in the idea of doctrine is the elaboration of principles transcending the concerns of particular individuals, to provide guidance?or comfort?to people in the aggregate.

Doctrinal formulas may outlive their usefulness, as the "original package doctrine" has. When they do, they fall into disuse or are explicitly abandoned. One of the paradoxes of law is that it strives to provide the security of enduring...

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