Document Type



This Article argues that courts can, do, and often should implement constitutional guarantees indirectly, by crafting doctrines that raise the costs to government decision-makers of enacting constitutionally problematic policies. This strategy for implementing the Constitution contrasts with a more familiar approach, in which courts attempt to designate certain government actions, or categories of government actions, as permissible or impermissible. The article first explains, as a theoretical matter, how, why, and under what conditions judicial doctrines that manipulate legislative enactment costs may be a more effective tool for courts to implement the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests at stake in any given case. The article then argues that the federal judiciary already has the capacity to fashion doctrines that function in this way, and current doctrine influences legislative enactment costs more than has generally been appreciated. Understanding both the theory of enactment cost manipulation and the ways in which existing doctrinal approaches may influence legislative enactment costs may be useful in evaluating the advantages and disadvantages of these doctrines, as well as suggesting different ways of thinking about doctrinal strategies for implementing the Constitution. By thinking more systematically about these issues, one may be able to craft doctrines that more effectively leverage the advantages associated with an enactment cost strategy while minimizing the inevitable shortcomings of such an approach.

Date of Authorship for this Version

February 2008