In yesterday’s post, I argued that the first question in any constitutional controversy should be the who question: who has allegedly violated the Constitution? I gave one reason why: constitutional accountability. Knowing who the constitutional culprit may tell us whom to blame, whom to vote against, whom to impeach. Simply put, if you care about the Constitution, you should care about who is violating it.
Today I will present the other reason why we should care. One cannot determine whether the Constitution has been violated without first identifying who has allegedly violated it. The Constitution binds all government actors. But — and this is the crucial point — it binds these different actors differently. It turns out that the answer to the who question dictates both the structure and the substance of constitutional review.
Start with a simple example. On July 14, 1798, Congress passed the Sedition Act, forbidding certain political speeches and writings. Months later, someone is arrested and tried pursuant to the Act. Who has violated the Constitution?
The question is easy, because the First Amendment is written in the active voice, with a single, explicit subject: “Congress shall make no law … abridging the freedom of speech.” The answer to the who question must be Congress. And the answer to the when question follows. Congress violated the First Amendment on July 14, 1798, the day that it made the law.
These simple facts structure the constitutional claim. When our defendant is on trial, exactly what he wrote will, of course, be essential to the criminal case against him. But, crucially, it will be irrelevant to his constitutional defense. Exactly what the defendant wrote (or whether it could have been criminalized pursuant to some other statute) cannot matter to his defense, because Congress violated the Constitution long before he took pen to paper. Analysis of the constitutional claim requires, in the Court’s words: “lay[ing] the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.” In current parlance, the challenge is inherently a “facial” challenge: the violation is visible on the face of the Sedition Act and subsequent facts cannot matter to the analysis.
Thomas Jefferson understood all this, which is why his Kentucky Resolution declared this “act of the Congress” (small “a”) to be “altogether void, and of no force,” and why he later pardoned everyone convicted under the Sedition Act, regardless of what exactly they had written: “I discharged every person under punishment or prosecution under the sedition law, because I considered, and now consider, that law to be a nullity . . . .”
But not all constitutional claims work this way. Consider a second example. Imagine that Congress makes a law authorizing the FBI to search anyone, at any time, for any reason. The FBI breaks down someone’s door at 3:00am and proceeds to search. Who has violated the Constitution?
The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” This provision is not as clear as the First Amendment, because it is written in the passive voice. The question, here, is: violated by whom?
Constitutional structure answers the question. Searching is a paradigmatic executive activity. This provision is not violated by making a law; it is violated by executing an unreasonable search. Here, the Executive branch is the answer to the who question. In this case, the Constitution was violated, not when Congress made the law, but rather at 3:00am, when the Executive executed the search.
So, notice how different this constitutional inquiry will be. In the First Amendment context, exactly what the defendant wrote was irrelevant to the constitutional claim, because Congress violated the Constitution long before he took pen to paper, and so the law was, in Thomas Jefferson’s words, “a nullity.” But here, in the Fourth Amendment context, the specific facts of the case — whether the FBI knocked first, whether they had any cause for suspicion, etc. — will be profoundly relevant to the constitutional inquiry. Here, the facts of execution are the constitutional violation. Current parlance would, confusingly, call this an “as-applied challenge to the statute,” but it is really not a challenge to the statute at all; it is a challenge to the executive action of searching. As the Court said in a similar case:
The parties . . . have urged that the principal issue before us is the constitutionality of [an authorizing statute] “on its face.” We decline . . . to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of [the statute] next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.
So, the answer to the who question structures the entire inquiry. Judicial review of a legislative action under the First Amendment is inherently “facial,” and it is fundamentally, structurally different from judicial review of an executive action under the Fourth Amendment.
Tomorrow, I will discuss which provisions are like the First Amendment and which ones are like the Fourth Amendment, and how to tell.