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Selection Effects in Constitutional Law

The standard consequentialist analysis of constitutional law focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making “ambition counteract ambition”; justify negative liberties, such as free speech and free association, as a necessary corrective to incumbent officials’ incentives to suppress political opposition; and so forth.

In this experimental Essay, I offer a preliminary sketch of a different way of looking at constitutional law generally and constitutional structure in particular: through the lens of “selection effects.” Constitutional rules, on this account, should focus not only on the creation of optimal incentives for those who happen to occupy official posts at any given time, but also on the question which (potential) officials are selected to occupy those posts over time. Where an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, selection analysis is long-term and dynamic, asking how legal rules themselves produce feedback effects that, over time, bring new types of government officials into power.

This turn to selection-based analysis yields fresh insight into the dynamics of constitutionalism. Because constitutional rules affect the pool of potential and actual officeholders, as well as the behavior of current officeholders, focusing on selection effects shows that some constitutional rules prove “self-stabilizing”: the rules tend to select a corps of officeholders who will act to uphold and stabilize the rules themselves. Other constitutional rules, by contrast, prove “self-negating”: the rules tend to select a corps of officeholders who work to undermine or destabilize the rules themselves. This framework supplies insights into diverse areas of constitutional law and theory, ranging from governmental structure, campaign finance, and voting rights to criminal sentencing, free speech, and affirmative action.

Proportionality and Federalization

The literature treats the “federalization” of crime as a quantitative problem. Congress, on this view, has simply enacted too many federal crimes. This Article challenges this way of conceptualizing the federalization problem. The real problem with federalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of federalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable – its enormous scope and its severity – and made them considerably worse.

One of the most significant adverse effects of federalization, which is overlooked in the case law and all but ignored in the literature, lies at the heart of this Article: the danger of disproportionately severe penalties. Poor legislative crime definition, coupled with the judicial practice of expansively construing criminal statutes, allows prosecutors to drive up the punishment federal defendants would otherwise face. Sometimes, courts construe ambiguous statutes to move into federal court defendants who would otherwise face lower penalties in state court. More often, courts expand serious crimes to encompass behavior for which Congress prescribed lower penalties elsewhere. This Article shows how courts can adjust their interpretive strategies to counteract the severity and scope of the federal criminal code so that federalization need not be the disaster that its critics fear.

Massachusetts v. EPA’s Regulatory Interest Theory: A Victory for the Climate, Not Public Law Plaintiffs

Standing doctrine’s development is often framed as a struggle between two competing models of adjudication. The private law model views the court’s role as the adjudicator of individual rights and conditions access to the court on a party’s showing of a discrete injury at the hands of another party. The opposing public law model favors congressional power to create causes of action that confer standing without requiring a showing of differentiated injury, and conceives of the judiciary’s role as integral to ensuring executive compliance with the law. Many commentators view Massachusetts v. EPA, a recent Supreme Court decision addressing global climate change, as liberalizing standing doctrine and as a significant victory for the public law model of adjudication.

This Note departs from this commentary by arguing that, on the whole, the standing theory advanced in Massachusetts places the case within the Court’s trend towards a more restrictive interpretation of the case-and-controversy requirement. This Note first analyzes the Massachusetts opinion, the history of state standing doctrine, and subsequent judicial treatment of the decision, in order to show that the Court’s standing decision is based on a finding of injury to Massachusetts’ governing interest: the ability of Massachusetts to regulate a harm that threatens the Commonwealth’s territorial integrity. The Note then argues that this “regulatory interest theory” creates a standing regime that may be a variation of the public law model, but one that is potentially highly restrictive of both state and individual standing. In fact, the regulatory interest theory may create a standing regime where state attorneys general have monopoly power over public law adjudication, a possibility that threatens both core public and private law model values. This Note concludes that a Positivist approach to standing that predicates state and citizen standing on positive statutory enactment provides a relatively straightforward, far more workable approach to the case-and-controversy requirement.

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