While federal circuit courts play an essential role in defining what the Constitution means, one would never know it from looking at most constitutional scholarship. The bulk of constitutional theory sees judge-made constitutional law through a distorted lens, one that focuses solely on the Supreme Court with virtually no attention paid to other parts of the judicial hierarchy. On the rare occasions when circuit courts appear on the radar screen, they are treated either as megaphones for communicating the Supreme Court’s directives or as tools for implementing the theorist’s own interpretive agenda. Both approaches would homogenize the way circuit courts make choices about constitutional meaning, carving independent federal judges into cookie-cutter replicas of either the theorist or the Supreme Court.
These “one size fits all” theories fail to see circuit courts for what they are — parts of an interpretive system where constitutional law is made from both the top-down and from the bottom-up. This partially decentralized structure positions circuit courts to help the system adapt to changes in its environment and ensure its long-term stability and survival. Rather than focusing on their “inferior” position in the judicial hierarchy or the “best” available theory of constitutional interpretation, circuit courts should use their interpretive discretion in constitutional cases in ways that serve this adaptive function.
This Article uses a “complex adaptive system” model to explore how decentralized systems balance their need for overall order and stability with demands for evolution and change. These systems rely on two factors: variation (the degree to which the system’s components differ from one another) and interdependence (the degree to which the system’s components affect one another) to manage those competing forces. When applied to circuit courts, a complex adaptive system model shows the importance of generating different answers to difficult interpretive questions rather than a uniform approach, and developing mechanisms for facilitating interpretive communication across circuits. In turn, it offers the promise of aligning constitutional theory with the way constitutional law is actually made.
61 Am. U. L. Rev. 457 (2011-2012)