rights, adjudication, First Amendment, morality
Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn the application of a constitutionally invalid rule to a given claimant if that rule contains no valid severable subrule that covers the claimant; and he criticizes Adler’s model on various counts. In this Response, Adler replies to Fallon's criticisms and, more generally, attempts to demonstrate that the Fallon Model is not supported by a variety of considerations that might seem to favor it. The Fallon Model is a better account of rule-dependence than the Adler Model only if the Fallon Model better implements constitutional norms, and Professor Fallon has not shown or even tried to show that it does.
Matthew D. Adler, Rights, Rules and the Structure of Constitutional Adjudication: A Response to Professor Fallon, 113 Harvard Law Review 1371-1420 (2000)