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22 Harv. J. L. & Pub. Pol'y 21 (1998-1999)
Relationships between Formalism and Functionalism in Separation of Powers Cases

handle is hein.journals/hjlpp22 and id is 41 raw text is: RELATIONSHIPS BETWEEN FORMALISM AND FUNCTIONALISM IN SEPARATION OF POWERS CASES WILLIAM N. ESKRIDGE, JR. Peter Strauss has usefully framed key debates in separation of powers jurisprudence around the distinction between formalist and functionalist methodologies for construing the Constitution.' 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.2 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. John A. Garver Professor of Jurisprudence, Yale Law School 1. See generally Peter L Strauss, Formal and Functional Approaches to Separation-of- Powers Questions-A Foolish Inconsistency?, 72 CORNELL L REV. 488 (1987); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 COLUM. L REV. 573 (1984). 2 See generally HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); Frank Ri Easterbrook, Formalism, Functionalism, Ignorance, Judges, 22 HARV. J.L & PUB. POL'Y 13 (1998).

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