Content area
Full Text
Peter Strauss has usefully framed key debates in separation of powers jurisprudence around the distinction between formalist and functionalist methodologies for construing the Constitution.l The formalist-functionalist dichotomy is an appealing way to understand and to teach the cases, but it masks complexities I should like to explore.
There are no fewer than three different ways that constitutional formalism and functionalism can be contrasted. One is their apparently different approach to legal rules and standards? Formalism might be associated with bright-line rules that seek to place determinate, readily enforceable limits on public actors. Functionalism, at least as an antipode, might be associated with standards or balancing tests that seek to provide public actors with greater flexibility.
Another way of contrasting formalism and functionalism focuses on the reasoning process by which we reach rules or standards. Formalism might be understood as deduction from authoritative constitutional text, structure, original intent, or all three working together. Functionalism might be understood as induction from constitutional policy and practice, with practice typically being examined over time. Formalist reasoning promises stability and continuity of analysis over time; functionalist reasoning promises adaptability and evolution.
Finally and relatedly, formalism and functionalism could be contrasted as emphasizing different goals for law. Formalism might be understood as giving priority to rule of law values such as transparency, predictability, and continuity in law. Functionalism, in turn, might be understood as emphasizing pragmatic values like adaptability, efficacy, and justice in law.
The formalism-functionalism dichotomy is apparent even in the rhetorical discourse about the relationship of the three, or more, branches of the national government. "Separation of powers" connotes relatively formalist inquiries of rules, deductions, and sharp lines. "Checks and balances," on the other hand, connotes relatively functionalist inquiries of standards, inductions, and flexible interactions.
Whether understood as theories about rules, reasoning processes, or competing jurisprudence, neither formalism nor functionalism has wholly dominated American constitutional history. This absence of dominance begins with the Washington Administration, through the Marshall and Taney Courts, through the New Deal administrative state, and into the Burger and Rehnquist Courts.3 Indeed, some of the canonical cases treating allocations of national and state powers are classics in both genres. In McCulloch v. Maryland,4 perhaps the greatest constitutional decision in our history, Chief Justice John Marshall deduced...