The Wandering Doctrine of Constitutional Fact

One of the most misunderstood and undervalued subjects in federal jurisdiction is the doctrine of constitutional fact. The doctrine—which holds that courts must review factual determinations de novo where those determinations underlie constitutional claims—has never been adequately explained, and accordingly, never fully appreciated. For example, if expression sought to be suppressed is determined to be obscene, such suppression does not violate the First Amendment’s guarantee of free speech, because obscenity has been categorically deemed to fall outside that constitutional protection. De novo review of such a fact must exist in certain circumstances in order to guarantee due process and maintain separation of powers principles implicit in Article III. But because neither the Court nor any commentator has adequately grounded the doctrine as we do, the doctrine has wandered into settings in which it should not apply. The constitutional fact doctrine originated in the administrative state, where constitutional fact review is necessary to satisfy the due process guarantee of a neutral adjudicator, under which the prophylactically protected judiciary must have ultimate authority to decide constitutional claims, particularly those bearing on a regulator’s power. Additionally, Article III requires that, where Congress elects to vest jurisdiction in courts to review administrative action, that jurisdiction must include the ability to determine constitutional facts. But the doctrine has been inexplicably extended to permit constitutional fact review of lower courts, notwithstanding the fact that neither due process or Article III requires such a result. Similarly, constitutional fact review of juries should apply only where there is a possibility of juror bias. Seeking to reinvigorate the doctrine in its proper place, this Article synthesizes a blend of rationales sounding in due process and Article III. This blend is the only proper foundation for the constitutional fact doctrine. Accordingly, we argue that the constitutional fact doctrine should return to its origins in the administrative state and in doing so abandon its unprincipled wandering into review of courts and juries, where it should not apply.