Brian C. Kalt (Michigan State University College of Law) has posted Constitutional Procedures as a Distinct Category on SSRN. Here is the abstract:
American law schools and scholars commonly divide U.S. constitutional law into two “separate blocks”: structure and rights. Both parts ask the same basic legal questions about government (“Can they do that?” “Who gets to do that?”). But this dichotomy ignores a third category of constitutional law: procedure.
The Constitution’s procedural provisions deal with a different question: “How is this thing done?” Often, compared to substantive provisions, the Constitution’s procedural provisions are drafted differently and function differently—and thus should be interpreted differently as well.
Part I of this article defines the category of constitutional procedural provisions. Part II identifies some distinctive characteristics of procedural provisions and some differences in how they should be interpreted. Part III applies the general analysis of Part II to a specific context: the Necessary and Proper Clause. Specifically, Part III argues that the Clause, properly interpreted, gives Congress more authority to legislate around certain constitutional procedures than it does around substantive provisions. Part IV concludes by validating Congress’s use (where it has used it) and promoting Congress’s use (where it has not) of this vigorous Necessary and Proper power to correct certain flaws in constitutional procedures.
Highly recommended. Download it while it's hot!