Subconstitutional constitutional law: supplement, sham, or substitute?

• Author: Tushnet, Mark V.
• Position: Supreme Court doctrines that influence legislative choice - Response to article by Dan T. Coenen in this issue, p. 1575

Professor Coenen has given us an extraordinarily valuable examination of subconstitutional doctrines that allow the Supreme Court to influence legislative choice without dictating it.(1) Professor Coenen presents subconstitutional doctrines as supplements to the forms of judicial review that dominate theorizing about constitutional law. Those dominating forms, which I call substantive judicial review, involve the displacement of legislative and executive choice by the courts' specification of constitutional norms. In contrast, the subconstitutional doctrines Professor Coenen describes and commends allow the political branches to pursue their preferred policies, if only they do so in the proper way. But, according to Professor Coenen, subconstitutional doctrines still leave open the possibility of substantive judicial review.

In this brief Comment I make two points.(2) First, the subconstitutional doctrines appear to have the advantage of allowing elected lawmakers to pursue whatever course they wish, as long as they satisfy the requirements of these subconstitutional doctrines. In practice, however, what appears to be a provisional invalidation based on subconstitutional law turns out to be--and, indeed, might be expected at the moment of decision to be--a final, unrevisable decision.(3) Further, courts might strategically deploy these subconstitutional doctrines to avoid the sting of the charge that they are foreclosing legislative choice while effectively doing so. Second, one might fairly question the need for conclusive judicial review in the classic mode precisely because these doctrines are so widely available. Normatively, a combination of full democratic choice coupled with subconstitutional doctrines to ensure that such choice is informed, carefully made, and the like, might be more attractive than a system in which democratic choice is limited substantively by the courts. Exactly what extra value does democratic self-governance get from conclusive judicial review? Pretty clearly, not all that much, in light of the scope of these subconstitutional doctrines.

These two points are obviously in some tension with each other, and I do not wish to urge that one or the other is correct. Rather, I suggest that developing a more complete understanding of subconstitutional doctrines will require us to grapple with these and other objections that Professor Coenen mentions largely in passing. Professor Coenen's survey of subconstitutional law is so comprehensive that I can hope to use only selected examples to support these two observations. I believe, though, that my observations can be extended beyond the particular examples I use.

1. SUBCONSTITUTIONAL REVIEW AS SHAM?

   The deep structure, so to speak, of subconstitutional rules is this: The Court says to a legislature, "You tried to accomplish goal X through means A. But, you can't do that. We're not saying that you are precluded in principle from accomplishing goal X. Rather, you can accomplish goal X, but only by using means B or C." The problem with this approach is that means A may be the only politically feasible method of accomplishing goal X. The Court effectively forecloses the accomplishment of the goal it says is available in principle, by foreclosing the only politically feasible method. And, notably, it does so without having to defend the proposition that the Constitution properly interpreted really does foreclose the legislature from accomplishing goal X.(4)

   An example from Canada provides a useful illustration. Morgentaler v. The Queen, Canada's abortion case, invalidated that nation's regulation of abortion.(5) It did so on what appears in the first instance to be structural or subconstitutional grounds. The statute making it a crime to obtain or perform an abortion also provided a defense. Putting it roughly, doctors would escape criminal liability if they showed that they had obtained the permission of a hospital committee finding the abortion medically appropriate. But, the Canadian Supreme Court said, the facts showed that this defense was actually illusory because hospital committees were unable to give their permission in a timely manner. It would seem, then, that the Canadian Parliament could continue to criminalize abortion by developing a better system through which someone would give the doctors the permission necessary to immunize them from criminal liability.(6) Things turned out otherwise. Afraid to take, a position on what was clearly a divisive political issue, the government allowed a vote on a revision of the abortion law, but made it a "free"--that is, nonparty line--vote.(7) Parliamentary maneuvering produced a legislative stalemate, and the law criminalizing abortion went unrevised. That law was, of course, unenforceable after the...