Hello, Conspiracy! This week, I will be guest-blogging about a new model of constitutional review. The first two installments — The Subjects of the Constitution and The Objects of the Constitution — were recently published in the Stanford Law Review, and the comprehensive version is forthcoming next year as a book by Oxford University Press. Many thanks to Eugene for the introduction and to Randy Barnett for the rave review.
This past summer, the project was cited by the Third Circuit in a controversial executive detention case and discussed by the Seventh Circuit in an important gun rights case. As Randy anticipated, it was also cited by Virginia earlier this year in its challenge to ObamaCare. I will be discussing these practical applications later in the week. Today, I will begin with the simple observation from which all these applications follow.
The school year has just begun, and in countless law school classrooms across the country, a phrase is just beginning to echo. In all of these classrooms, professors are intoning, and students are dutifully transcribing, the following words: “This statute violates the Constitution.”
This is commonplace. It is also wrong.
Statutes do not violate the Constitution any more than guns commit murder. The Constitution prohibits certain actions. Actions require actors, just as verbs require subjects. Government actors, not statutes, violate the Constitution. Congress, the President, federal courts, state officials — these are the potential subjects of a constitutional challenge. And every constitutional claim should begin by identifying which one is to blame.
Yet, as a general matter, our constitutional discourse is maddeningly vague about exactly who has violated the Constitution. If Congress makes a law, the President executes the law, and a constitutional right is violated, it must be that either Congress or the President violated the Constitution. But which one? And is the answer the same in every case? The Court rarely says that “Congress has violated the Constitution” or “the President has violated the Constitution.” Instead, it insists on saying: “the statute violates the Constitution” (or, worse yet, “the statute violates the Constitution as-applied”).
This formulation derives, perhaps, from an odd linguistic quirk. Congress acts by making laws. But the product of the action of Congress — the statute, the public law — is also called an “Act of Congress.” In grammatical terms, “act” is both a noun (“an act”) and a verb (“to act”), as it has been since before the Founding. In common parlance, when Congress acts (lowercase, verb), the result is an Act (uppercase, noun) of Congress.
But note the subtle difference between saying that “an act of Congress violated the Constitution” and saying that “an Act of Congress violates the Constitution.” The former (lowercase, past tense) properly focuses on Congress, its action in making the law, and the moment in the past when the law was made. The latter (uppercase, present tense) confusingly focuses on the statute itself in the present, as though the statute were the culprit and its offense ongoing. And so usage has varied from the analytically correct (“this action of Congress violated the Constitution”) to the ambiguous (“this act/Act of Congress violated/violates the Constitution”) to the incorrect (“this statute violates the Constitution”).
From the Court’s perspective, this last formulation may possess the (dubious) merit of euphemism. Judicial review is always a politically sensitive matter, and the Court understandably tries to avoid direct confrontation with the coordinate branches. By saying that “the statute violates the Constitution,” the Court carefully avoids pointing a finger or casting express blame.
But this is not merely harmless euphemism. To say that “a statute” — rather than a government official — violates the Constitution is to conceal and abet a constitutional culprit. Usually, the Court is at pains to emphasize the crucial importance of constitutional accountability. But here, the Court’s phrasing renders the government more opaque and less accountable, so that the People do not know whom to blame, whom to vote against, whom to impeach. In short, the Court’s circumlocution hails from the familiar, passive, elusive, “mistakes were made” school of constitutional responsibility.
But that is not the worst of it. To say that “a statute violates the constitution” is to perpetuate a pathetic fallacy. Judicial review is not the review of statutes at large; judicial review is constitutional review of governmental action. Government actors violate the Constitution. And the structure and substance of judicial review turns on which one committed the violation.
This is not a mere linguistic or grammatical point, but a deep structural implication of federalism and separation of powers. The Constitution restricts all different governmental actors. And it restricts these different actors differently. One cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review.
Chief Justice Marshall understood this, recognizing that the who question is “of great importance.” But a century later, the Court had entirely lost sight of the subjects of the Constitution. The fact that different clauses bind different actors is now treated, in case after case, as an embarrassing drafting error, fit for judicial “correction.” It would be “unthinkable,” the Supreme Court insists, if a constitutional prohibition applied to one governmental actor and not another. Yet it is hardly unthinkable — indeed, it is an irrefutable textual fact — that different clauses apply to different government actors.
As Marshall knew, this is a fundamental structural feature of our Constitution, reflecting the Framers’ deep insight that each branch and level of government poses different and distinct threats to individual liberty. As I will try to demonstrate this week, it is essential to identify the constitutional culprit, because judicial review of a legislative act is entirely different — formally, structurally, temporally different — from judicial review of an executive act. These basic differences dictate both the structure and the substance of judicial review.
So, the first step in any act of judicial review must be to figure out the subject of the constitutional claim. The first question to ask is the all-important who question. The Constitution has allegedly been violated. Who has violated it?