Aaron Tang (University of California, Davis - School of Law) has posted Harm-Avoider Constitutionalism (California Law Review, Forthcoming) on SSRN. Here is the abstract:
How does the Supreme Court actually decide difficult questions of constitutional law? Standard accounts point to a range of interpretive approaches such as originalism, common law constitutionalism, political process theory, interest-balancing, and constitutional pluralism. And once the list of commonly used interpretive approaches is set, normative debates often follow over which is best.
In this Article, I argue that another theory belongs on the list. In a surprising number of cases spanning a range of doctrinal areas such as Congress’s Article I power, equal protection, substantive due process, presidential immunity, and the dormant commerce clause, the Court has decided hard constitutional questions using a kind of argument that has evaded scholarly attention thus far. Rather than relying on original meaning, precedent, or other common tools for discerning the Constitution’s proper application, the Court has decided these cases on the basis of a raw, second-order consideration: which group, if the Court rules against it, would be better able to avoid the harm it would suffer? And in each case, the Supreme Court has consciously ruled against the best harm-avoider, trusting in that group’s superior ability to protect its interests outside the courts. I call this approach “harm-avoider constitutionalism.”
This Article uncovers harm-avoider constitutionalism as a distinct — and powerful — theory by which the Supreme Court decides hard cases. To be sure, the theory does not help in every case. But where it does, harm-avoider constitutionalism furthers significant virtues. It curbs judicial partisanship. It bolsters the Court’s legitimacy by ensuring that losing groups have more effective responses to their defeats than attacking the Court. It encourages litigants to identify solutions rather than belittle their opponents. And it enables the Court to pursue an important, yet under-looked objective in hard cases: to do the least harm possible.
Highly recommended.
As a theoretical matter, it seems to me that the least-cost harm-avoider approach is a module that could be combined with another, more comprehensive, theoretical framework. For example, the principle could be absorbed into constitutional pluralism as a constitutional value. Similar moves could be used for a superlegislature theory, a moral readings theory, or possible common-law constitutionalism. Similarly, the harm-avoider module would not easily combine with originalism, common-law constitutionalism, John Hart Ely's representation-reinforcement theory and other versions of Thayerianism.
