Species of Structural Argument
Many thanks to Danielle et al. for letting me guest-blog this month. Concurring Opinions is one of my favorite law blogs out there (second only to the “Bob Loblaw Law Blog”), so I’m honored to be a part of it.
I have recently been thinking some about the nature of “structural arguments” in constitutional law. At a general level, I understand such arguments to assert claims about the Constitution as a whole, rather than any one provision of the document in particular. But there are several ways of drawing inferences from the Constitution “as a whole,” some of which strike me as meaningfully different from others. So, I have been trying to sort through various categories of holistically-oriented constitutional arguments that we might in one way or another regard as “structural.” Here’s what I have so far:
- Text-based structural arguments, which identify high-generality “principles” of constitutional law as reflected in or stemming from various combinations of constitutional clauses. (Consider, e.g., Justice Kennedy’s suggestion in Alden v. Maine that various provisions of Articles I, II, III, IV, and V helped to reveal that “the founding document ‘specifically recognizes the states as sovereign entities’”; consider also Justice Douglas’s attempt in Griswold v. Connecticut to derive a constitutional right to privacy from the “penumbras and emanations” of the First, Third, Fourth, Fifth, and Ninth Amendments).
- History-based structural arguments, which invoke framing-era intentions and/or expectations regarding the constitutional system writ large. (Alden is also illustrative in this regard—much of Justice Kennedy’s opinion appealed to framing-era expectations regarding the Constitution’s effect on existing principles of state sovereign immunity; consider also the Court’s heavily history-based discussion of the “anti-commandeering principle” in Printz v. United States and New York v. United States.)
- Policy-based structural arguments, which identify certain extra-textual principles of constitutional law as necessary to ensure the effective operation of the overall constitutional system. (Perhaps, for instance, the Court’s derivation of the “dormant” Commerce Clause principle is best understood in this light; Marshall’s reasoning in the second half of McCulloch v. Maryland might also fall into this category, as would, perhaps, Charles Black’s alternative account of Carrington v. Rash.)
Does anything useful follow from this taxonomy? Here are three preliminary thoughts. First, perhaps the taxonomy suggests that structural arguments exist on a different plane from textual, historical, and policy-based arguments. “Structuralism” does not so much compete with text-based, history-based, or policy-based approaches to constitutional adjudication; more accurately, structuralism involves the use of text-based, history-based, or policy-based reasoning to defend a special set of holistically-oriented constitutional conclusions.
A second implication is that we have to be careful about evaluating “structural arguments” as a single, uniform category. If different types of structural claims depend on different methodological premises, then “structural argument” may not be much worth evaluating as a phenomenon unto itself. Criticisms of the history-based structural methodology used in Printz, for instance, may not carry over into other cases in which text-based or policy-based forms of “structural” reasoning are at play. And by a similar token, criticisms of history-based arguments in “non-structural” cases might apply with equal force to the history-based structural methodology of Printz. By tagging various arguments as “structural, full-stop,” we run the risk of overstating certain methodological connections between cases, while understating more important ones.
Third, maybe the taxonomy helps to make sense of what I always found to be a frustrating ambiguity in the term “structural argument”—namely, whether it refers to the structure of the governmental arrangements that the Constitution creates, or the structure of the textual arrangements on display within the Constitution itself. One possible means of resolving the ambiguity is to say that text-based structural arguments are primarily concerned with “document structure” (thus involving a form of what Michael Dorf has called “interpretive holism”), whereas history-based and policy-based arguments are primarily concerned with “institutional structure.” I’m not sure whether that ultimately works, but it seems at least worth thinking about.