Rules of Decision, Judicial Power, and the Valid Rule Requirement

Authors

John Harrison

Abstract

Some current Supreme Court debates that concern seemingly specialized issues raise fundamental questions about the role of the Constitution in the legal system and the role of the courts when they decide constitutional issues. In recent years, Justice Thomas has suggested that the doctrines of First Amendment overbreadth, so-called third-party standing in cases involving constitutional liberty, and statutory inseverability call on federal courts to exceed their role under Article III. Justice Thomas maintains that when courts apply those doctrines, the courts decide cases not before them. Building on the work of Professor Henry Monaghan, this article argues that those concerns are misplaced. Those doctrines rest on two principles that are basic to the U.S. legal system. First, the Constitution affects the content of the law, sometimes causing putative legal rules not to be the law because those rules are inconsistent with the Constitution. Second, courts, including federal courts, have an obligation to decide according to the law and to disregard purported legal rules that are invalid. As Professor Monaghan pointed out, courts are subject to a valid rule requirement, and parties have a right to have their cases decided pursuant only to valid rules. This article explains how the doctrines it addresses result from ways in which the Constitution constrains the content of the law. The article also derives the valid rule requirement for federal courts from Article III, which unsurprisingly implies that courts apply the law, and that the parties before the courts are entitled to have their cases decided according to law.

Recommended Citation

John Harrison, Rules of Decision, Judicial Power, and the Valid Rule Requirement, 75 Cath. U. L. Rev. 18 (2025).
Available at: https://scholarship.law.edu/lawreview/vol75/iss1/6