The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs

This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated. author. Assistant Professor, Harvard Law School. I am grateful to Richard Fallon, Eugene Kontorovich, Daryl Levinson, John Manning, Jonathan Masur, John McGinnis, Martha Minow, Bob Powell, Mark Tushnet, Adrian Vermeule, and participants in the 2007 Harvard-Berkeley Conference on Constitutions & Consequences for helpful comments on earlier drafts. STEPHENSON OP 10/14/2008 11:21:15 AM the price of public action