Lower Court Constitutionalism: Circuit Court Discretion in a Complex Adaptive System

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 where 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.INTRODUCTIONMost accounts of constitutional lawmaking begin and end with the United States Supreme Court. The overwhelming majority of textbooks, courses, treatises, and scholarship treat the Court as the sole driver of constitutional change, embedding its directives in written opinions that are then dutifully enforced by its inferior minions.As many others have pointed out, this Court-centered account is, at best, radically incomplete. Among other things, it ignores the impact of non-judicial actors on the evolution of constitutional norms, including Congress,1 the President,2 social movements,3 and public opinion.4But this obsessive academic focus on the Supreme Court also leaves out another set of critical constitutional actors: lower federal court judges-the forgotten stepchildren of constitutional theory.5 These judges are more than simple megaphones that shout the Court's directives to the masses; they are active players in the creation of constitutional meaning. They are capable of stopping a "constitutional revolution" dead in its tracks, making choices between competing doctrinal strands, taking subtle actions to undermine established doctrine, proposing new constitutional rules to address novel situations, acting in willful defiance of existing Court precedent, or dutifully enforcing established rules.Consider the following examples, each of which highlights the role of lower federal courts in determining what the Constitution means:* Commerce Clause. Despite multiple indications of the Supreme Court's willingness to curtail Congress' power to pass legislation under the Commerce Clause,6 lower federal courts have steadfastly declined to follow the Court's invitation to impose meaningful constraints. …