Aspiration and Underenforcement

Professor Fallon’s article T1 T is a valuable contribution to the emerging body of literature that applies what could be called the decision rules model to the study of constitutional law. The model distinguishes between the meaning of the Constitution — its actual grants of rights and powers — and the doctrine that courts create to decide whether rights have been violated or powers exceeded. In the terms used by Professor Mitchell Berman, which are becoming conventional, the model separates the Constitution’s operative propositions from judicial decision rules. T2 T The distinction between decision rules and operative propositions is a powerful analytic tool. Although it can be traced back to the nineteenth century, Professor Fallon deserves credit as one of the earliest modern scholars to present it as a general account of constitutional decisionmaking.T3 T I and others have used it to examine and critique particular areas of doctrine. T4 T In this article, Professor Fallon takes a dif–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––