Greater-or-nothing constitutional rules.

• Author: Fee, John
• Position: Rules that allow governments to do nothing or take action plus more

ABSTRACT

Greater-or-nothing rules exist throughout constitutional law and constitute a growing trend. These rules give the government a choice: do nothing or take the desired action plus do something more. Yet often this "something more" is potentially more damaging to the constitutional value at stake. For example, the government can circumvent limitations imposed by the Free Speech Clause by regulating speech more broadly than originally intended. This Article unpacks this paradox and discusses justifications for greater-or-nothing rules, particularly in an increasingly complex society.

CONTENTS INTRODUCTION I. WHAT IS A GREATER-OR-NOTHING RULE? A. Definition B. Paradoxical and Nonparadoxical Rules II. THE TREND TOWARD GREATER-OR-NOTHING RULES A. Antidiscrimination Rules B. Rules Regarding Government Property and Government-Controlled Background Criteria C. Rules Banning Unconstitutional Conditions III. WHY GREATER-OR-NOTHING RULES? A. Assumptions and Methodology B. Mitigation Rules C. Government Would Never Take the Greater Option D. Separating Exceptional Cases E. Baseline Decisions F. Comparative Decisions G. Comparative Terms H. Disclosure Rules IV. GREATER-OR-NOTHING RULES IN A COMPLEX SOCIETY INTRODUCTION

Many constitutional rules force government actors to make a choice: either do something comprehensive or do nothing at all. What these rule prohibit is acting partway. Put another way, many rules hold that a greater governmental power does not always come with its lesser independent components. The power to do A plus B does not necessarily include the power to do A alone.

Greater-or-nothing rules exist in almost all major areas of constitutional law, and they often seem paradoxical. They include antidiscrimination rules, rules prohibiting unconstitutional conditions, procedural rules, rules that hinge on government-defined entitlements or background laws, and more. While some arise from the text of the Constitution, many greater-or-nothing rules are judicial creations. Remarkably, over the last several decades, judges seem to have become increasingly fond of creating and applying new greater-or-nothing rules. Whereas an older style of constitutional law depended more on direct judicial balancing of the costs and benefits of particular government decisions and setting corresponding boundaries on government behavior, courts today are more likely to insert themselves into the decisions of other branches by taking away partial options while leaving the ultimate decisions to the other branches. This Article attempts to explain wily that might be.

This Article also seeks to unravel the paradox seemingly attached to many greater-or-nothing rules: that the government can get around these rules by doing something more something possibly more damaging to the constitutional value at stake--but not by doing less. For example, sometimes the government can get around the limitations of the Free Speech Clause by restricting more speech (1) or by eliminating other public rights. (2) Sometimes the government can get around the regulatory takings doctrine by imposing greater regulations on property. (3) And sometimes the government can get past the Fourth Amendment's restriction on unreasonable searches by searching more people in the same intrusive manner that is prohibited with one individual. (4) This paradox calls for an explanation, one that is often lacking in cases or commentary.

Although greater-or-nothing constitutional rules vary widely in their spheres of operation and their specific mechanics, I propose that there is value to addressing this large category of rules as a package. These rules share a similar structure and similar advantages, and they are vulnerable to a common kind of criticism. For these reasons, it should be possible to make some common claims about them, even if this analysis provides only a starting place for more particular application. Having a common analytical framework for these rules should make it easier to take the lessons that judges and scholars have learned from some of these rules and apply them to other doctrinal areas. Current scholarship provides no such framework.

I argue that greater-or-nothing constitutional rules make sense as structural decision-making rules that depend on the comparative advantages of the institutions involved. As applied by courts to legislative and executive branches of government, greater-or-nothing rules can be rational tools for maximizing public welfare. But these rules do not appear rational if we pretend that any part of the government can independently know the ultimate decisions that governments should make to maximize public welfare. Greater-or-nothing rules make particular sense as judicial tools for scrutinizing other branches, which the judiciary neither fully understands nor fully trusts, and as an alternative to either simple deference or simple substitution of judicial judgment. When working properly, these rules use the comparative advantages of politically insulated courts and of politically accountable branches of government together to achieve a set of results better than either could achieve alone. (5)

Because greater-or-nothing rules are founded on judicial uncertainty as to specific policy outcomes, it makes sense that they would proliferate in a society that is becoming increasingly complex and that depends on greater specialization. They are often more appropriate for a pluralist society that is skeptical of universal truth, and that recognizes both the legitimacy and enormous range of preferences on such topics as speech, religion, family, and the good life. To borrow a phrase from Richard Epstein, they are "simple rules for a complex world" (6)--rules that are designed to manage the incentives of competing actors, in this case government actors, in a society that has far too many components for effective judicial micromanagement. They are also decentralized rules, which have many advantages over centralized ones, (7) and seem particularly appropriate as applied to courts, the least politically accountable branch of government. This justification has roots in public-choice theory (8) and depends on certain assumptions about different kinds of government actors and government decisions. Identifying these assumptions suggests not only an answer to why such rules exist and are growing more common but also to why they are not always best.

Parts I and II of this Article will discuss the defining features of greater-or-nothing rules and their proliferation in many areas of constitutional law. Part III will explore various justifications for these rules based on the institutions involved. Part IV will discuss how these rules are well suited to the growing complexity of government and society.

1. WHAT IS A GREATER-OR-NOTHING RULE?

   1. Definition

      Greater-or-nothing constitutional rules follow a simple form. They provide that the government may perform some action (Action A), but only if it performs something additional (Action B). A rule of this type allows the government a greater, more active option (the power to do A plus B) as well as the option to do nothing, but does not allow the government some lesser subset of the greater power (the power to do A alone).

      Let us call A the restricted action and B the enabling action. Depending on the rule, the relationship between A and B could be reciprocal, such that the government is also barred from doing B unless it does A, but this is not an essential feature of greater-or-nothing rules. The enabling action could be something small, such as when the Due Process Clause requires the government to give a hearing when depriving a person of life, liberty, or property. (9) Or it could encompass a large set of activity, such as when the Equal Protection Clause requires the government to regulate all similarly situated people in order to regulate one person. (10) In either case, the government can do something particular only if it is willing to include the act as part of something larger, sometimes massively larger. Greater-or-nothing rules are an alternative to simply allowing or prohibiting the particular action under review. And they seem, at least in form, indifferent as to whether the government should take a more active or a more passive option.

      While some greater-or-nothing rules are explicit, many arise from the structure and preconditions of the doctrines that courts apply. For this reason, greater-or-nothing options might exist ex ante where they do not exist ex post, it being too late for the government to take the more active option in the case under review. And yet, for purposes of examining the rationality of rules as regulators of government behavior, the ex ante effects of rules are often most significant.

      Consider, for example, the public forum doctrine. Suppose the government fines Mary for distributing literature on a public sidewalk in violation of city regulations. She may defend her case on the grounds that she was acting in a traditional public forum (a city sidewalk), and that she accordingly has a right to distribute literature in that place. In the given case, ex post, it will be too late for the government to change the features of the location to something other than a traditional public forum, so there is not a greater option affecting the judgment against Mary. But if the deciding court defines a traditional public forum according to criteria that the government has authority to change in the future, the court may effectively offer the government a greater-or-nothing option ex ante. The legal framework provides that the government must either allow the broad range of public rights that go along with a traditional public forum or eliminate enough public rights by qualifying the space as something else. (11) For example, under current law, the government might eliminate a public forum by divesting itself of ownership or changing the use of its...