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Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. By contrast, in cases where no statute or regulation is at issue, courts are more likely to construct regulatory doctrinal rules. The Article supports this hypothesis by identifying three structural reasons why statutes are likely to have this influence on constitutional decisionmaking. By drawing upon work in legal philosophy and the social sciences, this Article shows that statutes can shape constitutional law in ways that judges fail to reflect upon, and usually take for granted.

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Wisconsin Law Review

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Copyright 2015 by the Board of Regents of the University of Wisconsin System; Reprinted by permission of the Wisconsin Law Review.