The surprisingly strong case for tailoring constitutional principles.

• Author: Rosen, Mark D.

INTRODUCTION I. ONE-SIZE-FITS-ALL AND TAILORING IDENTIFIED A. A Simple Jurisprudential Model B. Four Approaches to Constitutionally Limiting the Different Levels of Government 1. Different Levels, Different Constitutional Principles: The Example of "Fundamental Fairness" 2. Total Incorporation 3. Selective Incorporation 4. Tailoring: A Variant of Selective Incorporation C. One-Size-Fits-All Outside of the Fourteenth Amendment II. THE (ULTIMATELY) PRAGMATIC GROUNDS FOR ONE-SIZE-FITS-ALL A. The Disappointing Search for a Justification B. The "Watering-Down" Thesis and the Structure of Rights C. Plausible Justifications for Selective Incorporation and Their Relation to One-Size-Fits-All 1. Limiting Judicial Discretion 2. Judicial Administration III. A QUASI-PRECEDENTIAL ARGUMENT: THAT TAILORING IS NOT UNKNOWN TO AMERICAN JURISPRUDENCE A. Early Influential Support for Tailoring B. Contemporary Constitutional Decisions that Reflect the Logic of Tailoring 1. Federal Affirmative Action Programs 2. Property-Based Franchise 3. Separation-of-Powers Tailoring 4. Dormant Commerce Clause 5. Apportionment and Other Methods for Enhancing the Political Power of Numerical Minorities a. Area-based apportionment b. State analogs to the Electoral College c. Population-based apportionment C. Statutory Examples IV. THE PRIMA FACIE CASE FOR TAILORING: THAT DIFFERENT LEVELS OF GOVERNMENT MAY BE RELEVANTLY DIFFERENT A. Different Governmental Malfunctions 1. Malfunctions in the Representative Process a. Absence of representation b. Underrepresentation c. Overrepresentation i. The Federalist No. 10 ii. Komesar's "two-force" model of politics 2. Prophylactic Rules a. The need to overprotect constitutional rights b. The cost B. Different Exit Cost 1. Varying Risks and Benefits 2. Varying Experience Consequences C. Different Exit Costs 1. Smaller Polities Have Smaller Exit Costs 2. Law and Economics 3. Robert Nozick's "Framework for Utopias" D. Different "We's" and Democratic Theory 1. Outsiders' Extraterritorial Interference Versus Insiders' Self-Regulation 2. Limiting the Dilemmas of Majoritarianism a. Multiculturalist liberal theorists b. Rawlsian political liberalism E. Different Functions and Responsibilities V. COUNTERVAILING CONSIDERATION A. Administrability and Judicial Discretion B. The Nature of Our Political Union CONCLUSION In a large republic, the common good is sacrificed to a thousand considerations; it is subordinated to exceptions; it depends upon accidents. In a small one, the public good is better felt, better known, lies nearer to each citizen; abuses are less extensive there and consequently less protected.

--Montesquieu (1)

INTRODUCTION

Many constitutional principles apply to more than one level of government.

For example, virtually all Bill of Rights guarantees, which long were understood to limit only the federal government, have been applied to the states through the Fourteenth Amendment under the doctrine of incorporation. (2) Similarly, the Fourteenth Amendment Equal Protection Clause, which by its terms applies only to states, has been reverse-incorporated against the federal government. (3) "Multilevel" constitutional principles can be found outside the contexts of incorporation and reverse incorporation, as well. For example, the Court has held that a constitutional principle of representative democracy that prohibits the federal government from augmenting Article I's qualifications for Congress also applies to the states. (4)

The conventional wisdom is that such multilevel constitutional principles apply identically to all levels of government. Thus, the Court has held that incorporated Bill of Rights guarantees apply "with full force to the States." (5) Similarly, when reverse incorporating, the Court has articulated the doctrine of "congruence," under which equal protection applies identically to the federal and subfederal polities, (6) and has applied the principle of representative democracy that limits Congress identically to the states. (7) In short, today's doctrine virtually always utilizes what might be called a categorical "One-Size-Fits-All" approach to those constitutional principles that apply to more than one level of government.

This Article's thesis is that this categorical One-Size-Fits-All approach is problematic because the different levels of government--federal, state, and local--sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an alternative approach to One-Size-Fits-All that I dub "Tailoring." Tailoring refers to the possibility, though not the requirement, that a constitutional principle may apply differently to different levels of government. Tailoring thus would permit a situation where the federal government could regulate in ways unavailable to the subfederal polities as a matter of constitutional law. Conversely, states or localities might at other times be permitted to regulate in ways that the federal government could not. Finally, Tailoring holds out the prospect that states and municipalities might be sufficiently different that constitutional principles also should be Tailored as between them. For example, states may be more similar to the federal government than to municipalities in some respects such that a constitutional limitation might forbid the federal and state governments, but not municipalities, from regulating in a particular instance.

This Article does not ask whether any particular constitutional principle should be Tailored. It instead considers the antecedent question of whether Tailoring is a plausible technique to consider. An affirmative answer does not commit a person to the conclusion that any particular constitutional principle should be Tailored, but uncovers a new set of doctrinal options for consideration. In the end, the Article concludes that the One-Size-Fits-All approach should be softened from a categorical requirement to a rebuttable presumption.

Although Tailoring at first might sound completely outlandish, it is not wholly unfamiliar to American constitutional jurisprudence. As the Article shows, numerous Justices--including Chief Justice Rehnquist and Justices Holmes, Cardozo, Jackson, Harlan, Fortas, Powell, Stewart, Stevens, Blackmun, Ginsburg, Scalia, and Thomas--have argued that particular constitutional principles apply differently to different levels of government. Consider, for example, Justice Stevens's dissent in the case of Adarand Constructors, Inc. v. Pena. (8) Prior to Adarand, state affirmative action programs were subject to strict scrutiny, (9) whereas federal programs only had to satisfy intermediate scrutiny under the rule announced in Metro Broadcasting, Inc. v. FCC. (10) The Adarand majority announced the principle of "congruence"--the requirement that "[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment" (11)--to reverse Metro Broadcasting. (12) Justice Stevens, joined by Justice Ginsburg, argued in dissent as follows:

The Court's concept of "congruence" assumes that there is no significant difference between a decision by the Congress of the United States to adopt an affirmative-action program and such a decision by a State or a municipality. In my opinion that assumption is untenable. It ignores important practical and legal differences between federal and state or local decisionmakers. (13) In short, Justices Stevens and Ginsburg contended that the constitutional principle of equal protection should be Tailored, and criticized the doctrine of "congruence" for adopting what this Article terms a One-Size-Fits-All approach.

Moreover, though not conceptualized as instances of Tailoring, several contemporary doctrines in fact vary in their application de pending on the level of government to which they apply. For instance, although equal protection proscribes the federal and state governments from conditioning the right to vote on property ownership, certain local governments are allowed to utilize such voting requirements. (14) Similarly, although the Dormant Commerce Clause prohibits states from adopting protectionist measures that discriminate against sister states, no such antiprotectionism principle has been reverse-incorporated against the federal government. Consequently, Congress can authorize protectionist regulations that states cannot. (15) As this Article explains, such variances are best understood as instances of Tailoring, not as simply odd and discrete exceptions to ordinary constitutional law.

Although Tailoring's sensitivity to the differences among different levels of government is not unknown to American constitutional law, the Court ignores such considerations most of the time. This inattentiveness has led to troubling legal analysis. Consider the majority opinion in the case of U.S. Term Limits, Inc. v. Thornton. (16) At issue was the constitutionality of an amendment to the Arkansas Constitution that provided term limits for Arkansas' federal representatives. The amendment was passed by a ballot initiative "that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State." (17) The majority nevertheless struck it down on the ground that the amendment violated the "fundamental principle of our representative democracy" that "the people should choose whom they please to govern them." (18)

This reasoning is paradoxical: how can it be that fundamental democratic principles required that the Court strike down an amendment that had been adopted by the direct vote of a majority of Arkansas' citizens? The majority arrived at this puzzling rationale by reflexively invoking a One-Size-Fits-All jurisprudence that disregarded the differences between the levels of government (federal or state) that were acting.

The "fundamental principle of our representative democracy" that "the people should...