On Monday, I pointed out a euphemism of constitutional discourse. We are in the habit of saying “this statute violates the Constitution” (either “facially” or “as-applied”), when what we mean is that some government actor violated the Constitution — Congress, the President, a federal court, a state official. The euphemism is bad, I argued, because it conceals constitutional culprits. Simply put, if you care about the Constitution, you should care about who is violating it.
On Tuesday and Wednesday, I argued that this euphemism is bad for an even more fundamental reason. It obscures what should be the organizing dichotomy of constitutional law. The Court has correctly intuited that there are two basic flavors of judicial review — one somehow narrower, turning on the challenger’s specific facts and implying a remedy tailored to those facts; the other broader and more general, focusing on text rather than facts, and perhaps suggesting a sweeping remedial declaration that the statute is “void.” But the Court has been distinctly vague about when each sort of challenge is appropriate and why. It purports to “favor” the narrower type, and it purports to have set an extremely high bar for the broader type, but in some contexts (like the Commerce Clause), its presumption seems to run the other way, without any explanation.
The dichotomy that the Court has been grasping for is actually a dichotomy based on the subject of the claim, the answer to the who question. A “facial” challenge is simply a challenge to legislative action. An “as-applied” challenge is simply a challenge to executive action. A “facial” challenge is broad and text-based, because it challenges the legislature’s action in making a law; the challenger’s particular facts cannot matter to the merits, for the simple reason that those facts arise later, after the alleged violation is complete. An “as-applied” challenge is narrow and fact-based, because it challenges the executive’s action in executing the law. Here the inquiry is distinctly fact-intensive, because the facts of execution are the constitutional violation.
This explains why the Court has apparently ignored its general rule and favored “facial” challenges in three particular contexts: the First Amendment, the Commerce Clause, and Section Five of the Fourteenth Amendment. The Court has never explained these exceptions to the general rule, but these three provisions have one important characteristic in common. They are all written in the active voice, with a single explicit subject: “Congress”. Challenges under these provisions are challenges to legislative action. Any constitutional violation will be visible on the face of the law, and the challenger’s specific facts — which arise after the law was made and so after the violation was complete — cannot matter to the merits of the case.
So, to determine whether a constitutional inquiry should be fact-based (as under the Fourth Amendment) or text-based (as under the First Amendment, the Commerce Clause, or Section Five of the Fourteenth Amendment), it is essential to answer the who question and identify the subject of the claim.
Unfortunately, not all Clauses are as clear as the examples given so far. Unlike the First Amendment, most of the Bill of Rights is written in the passive voice, inviting the question: by whom? In these cases, it is much more difficult to tell who is bound by each clause.
At first glance, it might be tempting to say that that the passive-voice clauses bind everyone on Earth. One might be tempted to say, for example, 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,” by anyone. But in fact, virtually everyone agrees that such provisions bind only government actors. A parent cannot violate this provision by searching their child, no matter how unreasonable the search. Moreover, in a case called Barron v. Baltimore, Chief Justice Marshall held that such Clauses bind only federal government actors. (The Fourteenth Amendment, ratified after Barron, applied many of the same restrictions to state actors, as I will discuss tomorrow, but it remains true, per Barron, that the passive voice clauses themselves bind only federal government actors.)
If constitutional structure limits the passive-voice clauses to government actors, and if constitutional structure limits them further, to only federal government actors, then perhaps constitutional structure limits at least some of them further still, to specific federal government actors: Congress, or the President, or the judiciary. In The Objects of the Constitution, I attempted to apply Chief Justice Marshall’s textual and structural approach from Barron to this question, and tried to identify who, specifically, is bound by the passive-voice clauses of the Bill of Rights.
The complete analysis is too involved for a blog post. (If you’re interested, please see the article itself.) But the basic conclusions are rather striking. It seems that when the Constitution binds Congress, it generally does so in the active voice (“Congress shall make no law”) or, in the passive voice, it speaks in unmistakably legislative terms (“no bill of attainder or ex post facto law shall be passed”).
But most of the Bill of Rights does not sound like that. Most of it is written in distinctly executive-sounding terms, like “searches and seizures” “punishments inflicted,” and “property … taken.” These are not words that invoke the “making” or “passing” of “bills” or “laws” in the halls of Congress, but rather executive action out in the world. (Other provisions of the Bill of Rights are written in judicial terms, concerning the conduct of trials; again, if you are interested in these, please see the article itself.)
Another clue is that, other than the First Amendment, most mentions of “law” in the Bill of Rights are not restricting the laws that Congress can make (as in “Congress shall make no law”). Rather, most mentions of “law” seem to be restricting what another branch may do in the absence of a law. See, e.g., U.S. Const. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”); id. amend. V (“No person shall … be deprived of life, liberty, or property, without due process of law”); id. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law”).
In short, it appears that most provisions of the Bill of Rights are not restrictions on legislative action. In most of these provisions, Congress is not the answer to the who question. Most of these provisions are restrictions on executive (or judicial) action. Most are like the Fourth Amendment, not like the First Amendment. And this explains the Court’s intuition that most judicial review should be fact-specific and as-applied.
It also explains the Court’s intuition that the First Amendment is an exception to the rule. The Court has always had the instinct that the First Amendment is special, that it merits special protection, that challenges can be earlier and broader, because, as the Court says, the “very existence” of offending statutes may cause “chill” and thus constitutional harm. And so, the Court has crafted special doctrines, like overbreadth, which it purports to apply in the First Amendment context and no other.
But it has never noticed that its exceptional First Amendment doctrines map onto the First Amendment’s exceptional subject. The First Amendment, unlike most of the Bill of Rights, is a restriction on Congress. Congress is the subject of the Amendment and the answer to the who question. If the First Amendment has been violated, then Congress has violated it, by making a law. That is why overbreadth doctrine is limited to the First Amendment. That is why First Amendment challenges should always be “facial”. And that is why the “very existence” of a censorship law is a constitutional harm.