Review of Litigation Publishes Article on Constitutional Procedure

The Review of Litigation has just published an article by Prof. William M. Wiecek entitled The Debut of Modern Constitutional Procedure, 26 Rev. Litig. 641 (2007). Here is an excerpt from the Introduction:

With only modest exaggeration, we may say that the United States Supreme Court assembled the structure of modern constitutional procedure in the mid-twentieth century--specifically, in the years bracketed by the Chief Justiceships of Harlan Fiske Stone and Fred M. Vinson, 1941 to 1953. It was in this period that the Justices fully realized for the first time the importance of the Constitution's latent ordering of the constraints on judicial power in Article III. They displayed an unprecedented concern for the procedural endoskeleton of constitutional adjudication. This was due in part, but only in part, to the influence of the preeminent proceduralist among them, Justice Frankfurter, who in his prior career as a professor at the Harvard Law School had pioneered the academic specialty of Federal Courts. But more importantly, it was almost inevitable that the Court would confront procedural constraints when it redirected its activist energies away from its Lochner-era preoccupation with economic regulation, to the agenda adumbrated in Carolene Products' footnote 4: civil liberties, democratic process, and the civil rights of minorities.

Constitutional procedure, that complex of rules and practices that controls the appellate litigation of cases presenting constitutional issues in federal courts, is underappreciated as an influence on constitutional outcomes. It determines what kinds of cases federal courts can entertain and how they resolve those cases. When our attention is focused on substantive issues such as due process, equal protection, or First Amendment liberties, it is easy to overlook the gatekeeping role played by constitutional procedure, where outcomes are too often dismissed in journalistic accounts as results based on nothing more than being "decided on technical grounds." But this ignores Henry Maine's dictum, popularized by Frederic William Maitland, "that substantive law is gradually secreted in the interstices of procedure." As a corrective, judges, constitutional litigators, and scholars should heed Justice Frankfurter's admonition that "the history of American freedom is, in no small measure, the history of procedure." Given the central role of procedure, it is fitting that Frankfurter's Court (he served from 1939 to 1962) should have taken the lead in "proceduralizing" constitutional appellate litigation.