West Law Report

Judicially manageable standards and constitutional meaning

Posted in Harvard Law Review (Article), original meaning, Richard Fallon by mrkooenglish on June 11, 2008

Richard H. Fallon, Jr.’s article in Harvard Law Review (Mar 2006) (.pdf) (59 pages):

The Supreme Court has long held that disputes that do not lend themselves to resolution under udicially manageable standards?present nonjusticiable political questions. Filling several gaps in the literature, this Article begins by exploring what the Court means by judicial manageability. Professor Fallon identifies a series of criteria that anchor the Court analysis, but he also argues that in determining that no proposed test for implementing a constitutional guarantee is judicially manageable, the Court must often make an ultimate, all-things-considered assessment of whether the costs of allowing adjudication to proceed would exceed the benefits. This determination is so discretionary, Professor Fallon argues, that if the requirement of judicial manageability applied to the Court own decisionmaking process (as it does not), the criteria by which the Court identifies judicially unmanageable standards might themselves be disqualified as judicially unmanageable.

Although the demand for judicially manageable standards is most prominent in the political question doctrine, Professor Fallon argues that the concern to develop judicially manageable tests pervades constitutional adjudication. Until glossed by judicially formulated tests, most constitutional provisions would not pass muster as judicially manageable standards. Moreover, some of the tests that courts adopt largely for reasons of judicial manageability underenforce, whereas others overenforce, the underlying constitutional guarantees. Linking the phenomena of constitutional underenforcement and overenforcement to the demand for judicially manageable standards, Professor Fallon propounds he permissible disparity thesis?that there can be acceptable gaps between the Constitution meaning and the doctrinal tests applied by courts. He then deploys the permissible disparity thesis to cast new light on the nature and significance of both constitutional theories and constitutional rights, many of which should be viewed as partly aspirational, not necessarily requiring full, immediate enforcement.

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