William & Mary Bill of Rights Journal
Abstract
Lawyers are accustomed to thinking of constitutional law as a familiar binary: Either a given governmental policy or practice is constitutional and therefore permitted, or unconstitutional and forbidden. But not all constitutional laws are created equal. A state practice which may be constitutional in concept (such as the death penalty) may, in some or many applications, violate specific constitutional rules and become impermissible. When a policy which has been affirmed to be constitutional in general repeatedly runs up against problems as-applied, a legal tension emerges: can the state implement the policy or not? This dilemma illuminates a third constitutional category: the constitutional entitlement. A constitutional entitlement is a practice that the government is not just allowed but entitled to do, such that if the practice does appear to violate more specific constitutional restrictions, it is the restrictions which must yield. More than being permitted to enact the policy, a constitutional entitlement identifies those policies which a government must be allowed to implement no matter how they might interact with normal constitutional doctrines.
Some constitutional entitlements are relatively uncontroversial: the very notion of “strict scrutiny” is predicated on the notion that government must be given some avenue to pursue certain exceptionally important interests even where they would otherwise seem to breach a constitutional guarantee. However, the jurisprudence of constitutional entitlement has stretched far beyond this narrow domain and instead has become an ad hoc means of carving out particular political priorities of the judiciary’s dominant faction from doctrinal constraint. In areas as diverse as the death penalty, gerrymandering, racial discrimination, and abortion regulation, the federal judiciary has taken policies that are at most constitutionally permissible and instead treated them as entitlements which are largely immune from constitutional scrutiny in any domain whatsoever. Worse, the growing indulgence in constitutional entitlements seems to be bolstering a dangerous sense of entitlement within the judiciary—a sense that their rulings lie beyond valid scrutiny by ordinary citizens and legal observers, and that their privileged position entitles them to exemption from critique or reproach.