This week, I have argued that the great overlooked question in constitutional law is the who question: who is bound by each clause and so who may violate it? These posts have attempted to answer this question for many of the most important clauses. They have also attempted to sketch some of the implications of the answers. Many more answers, and many more implications, may be found in my Stanford Law Review articles, The Subjects of the Constitution and The Objects of the Constitution.
Both the answers and the implications are contestable (and many of the comments have contested them!). But the question, at least, has already started to take root (at least in the Third Circuit and the Seventh Circuit). And it turns out that once you start asking, it is difficult to stop.
So, to the law students reading this blog, I leave this one parting thought. When your professor tells you that “a statute violates the constitution” — either “facially” or “as-applied” — just ask him what exactly he means. If the Constitution has been violated, then someone must have violated it, at some particular moment in time. Ask your professor: who violated the Constitution and when? The discussion that follows may change the way that you think about constitutional law.
Many thanks to Eugene for the invitation, to Randy for the generous review, and to the Conspiracy for your gracious hospitality.