Abstract
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. Whereas more conventional accounts of constitutional adjudication portrayed it as involving two steps—the interpretation of the Constitution and the application of that interpretation to reach a constitutional holding—the “two-output” thesis posits that constitutional adjudication proceeds in three steps. Judges first fix constitutional meaning, what Professor 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.
Recommended Citation
Denning, Brannon P. and Kent, Jr., Michael B.
(2012)
"Anti-Evasion Doctrines in Constitutional Law,"
Utah Law Review: Vol. 2012:
No.
4, Article 2.
Available at:
https://dc.law.utah.edu/ulr/vol2012/iss4/2