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Anti-Evasion Doctrines In Constitutional Law, Michael B. Kent Jr., Brannon P. Denning

Scholarly Works

Recent constitutional scholarship has focused on how courts - the Supreme Court in particular - "implement" constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the "constitutional operative proposition," but must then design "decision rules" that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decision-making - strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. …