Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision of Article II, Section 2), has no legal existence. A judge who disclaims the power of judicial review nevertheless "enforces" Article I, Section 7 when he finds that a putative statute is (or is not) an enactment of Congress that he must take account of. We contrast existence conditions with "application conditions" that limit the legal force of a proposition of nonconstitutional law by some means other than vitiating the status of that proposition as law. For example, absent payment of just compensation, the Takings Clause would block the application of an otherwise valid statute such as the Endangered Species Act to a privately owned parcel of land if the impact of that application were to destroy all economically viable use of the parcel. Judicial enforcement of application conditions is not entailed by the enforcement of ordinary sub-constitutional law, even though judicial non-enforcement of application conditions might be unwise. After setting forth the conceptual distinction between existence and application conditions, we argue that many familiar constitutional provisions and doctrines - including the scope of enumerated powers and some individual rights - are best read as existence conditions and are thus necessarily judicially enforced. We then reconcile that observation with a variety of doctrines - including the political question doctrine, the enrolled bill doctrine, and the rational basis test - that seem to authorize the courts not to enforce or to "under-enforce" existence conditions. We argue that these doctrines should be understood in some instances as granting epistemic deference to non-judicial interpreters of the Constitution and in other instances as reflecting the fact that some constitutional provisions and doctrines are "perspectival" - that is, they have different content for different addressees.
Dorf, Michael C. and Adler, Matthew D., "Constitutional Existence Conditions and Judicial Review" (2003). Cornell Law Faculty Publications. Paper 84.
Virginia Law Review, vol. 89, no. 6 (October 2003)