Document Type
Article
Publication Date
2015
Rights
Abstract
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.
Publication Title
Wisconsin Law Review
First Page
87
Last Page
152
Recommended Citation
Anthony O'Rourke,
Statutory Constraints and Constitutional Decisionmaking,
2015
Wis. L. Rev.
87
(2015).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/442