The Surprisingly Strong Case For Tailoring Constitutional Principles

Abstract

Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this 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 it dubs "Tailoring." Tailoring refers to the possibility, though not the requirement, that a constitutional provision 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 sub-federal polities as a matter of constitutional law. Conversely, states or localities other times might be permitted to regulate in ways that the federal government could not. Though Tailoring might sound completely outlandish, the Article shows that more than a dozen Justices over the past century (including four who currently sit on the Court) have advocated that particular constitutional principle be tailored and that several discrete areas of contemporary constitutional law are best understood as examples of Tailoring. In the end, the Article concludes that the One-Size-Fits-All approach that is reflected in contemporary doctrine should be softened from a categorical requirement to a rebuttable presumption. Sensitivity to what level of government is acting - the conceptual core of Tailoring - is critical because the different levels of government are sufficiently dissimilar that a particular limitation as applied to one may have very different repercussions when applied to another. The Article identifies five respects in which the different levels of government systematically differ. Whether any or all of the differences justifies Tailoring a given constitutional principle ultimately turns on what is best characterized as pre-constitutional, political commitments. Interestingly, however, a broad array of competing approaches to ordering social life that often generates conflicting policy prescriptions - including public choice theory, law and economics, Robert Nozick's political philosophy, John Hart Ely's process theory, multi-culturalist theorists Will Kymlicka and Charles Taylor, and Rawlsian political thought - finds one or more of these distinctions sufficient to support Tailoring. The fact that many competing methodologies converge on the conclusion that Tailoring sometimes might be desirable counsels that constitutional doctrine should be responsive to potential differences among the various levels of government.