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Articles
The Federal Rules of Constitutional Procedure
RAMON FELDBRINT
Judicial review has distinctpurposes, difficulties, and modalities, but there are no guideposts as
to how thesefeatures oughtto be addressed in procedural terms. The reason is a deep-seated, but
largely unarticulated, assumption that constitutional litigation is simply governed by the same
rules as other civil litigation in the federal courts. Yet the premise is fundamentally false. This
Article draws new attention to rules andpractices that have historically regulated constitutional
cases and set them apartfrom the typical way all other cases make their way through thejudicial
system. These procedures include, among other things, the requirement to convene a three-judge
federal district court, direct and mandatory appeal to the Supreme Court, and certiorari before
judgment in the courts of appeals. U/hen these specialized rules for constitutional litigation are
viewed together, as they should be, it becomes evident that they are part of an important but
uncharted area offederal procedural law: constitutional procedure.
This Article elaborates on the implications of a unified discourse on the federal rules of
constitutional procedure and challenges some broader themes and popular assumptions about
the process ofjudicial review. First, the Article demonstrates that the American model ofjudicial
review does not by definition reject the use of specialized constitutional tribunals. Second, the
Article shows that judicial review in the federal court system is not necessarily diffused and
decentralized Third, and relatedly, the Article uncovers thefact thatpercolation-allowing issues
to work their way through the hierarchy of the federal judiciary-has never been a dominant
value in constitutional cases as it is in other types offederal litigation. Finally, andperhaps most
significantly, the Article makes it clear that our system ofjudicial review has never been fully
committed to a single procedural framework and that much of constitutional procedure is
dynamic and ever-changing. Hence, we must not takefor granted the currentprocedural setting,
and we should give attention to the impact ofprocedural design choices-and those who make
these choices-on the outcome ofconstitutional cases and the legitimacy ofjudicial review.
f Assistant Professor of Law, Harry Radzyner Law School, Reichman University. I am thankful for
spirited conversations and valuable comments to William Baude, Scott Dodson, Tom Ginsburg, Wolfgang Hau,
Daniel Hemel, Burkhard Hess, William Hubbard, Tyler Lindley, Max Noll, Clifford Rieders, Barry Sullivan,
Enrique Vallines, David Wecht, the students in my seminar at the University of Chicago Law School, the
participants of the Max Planck Institute Luxembourg's Referentenrunde, and the participants of the faculty
workshop at the Harry Radzyner Law School. Special thanks also to Imahn Daeenabi and Hannah Lauchner for
their excellent suggestions and indispensable editorial work.
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