The Subjects of the Constitution

Legal Theory Blog guru Larry Solum just named The Subjects of the Constitution the Download of the Week, and I concur. Written by my Georgetown colleague Nick Rosenkranz and just published in the Stanford Law Review, this article is a stunner. It is one of those rare pieces that hits you between the eyes and causes you to reconsider how you think about the Constitution. Here is the abstract:

Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?

As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects.

Confusion about the who (and, relatedly, the when) of constitutional violation has been the root cause of many of the deepest puzzles of federal jurisdiction – puzzles of ripeness, of standing, of severability, of “facial” and “as-applied” challenges. Simply by focusing attention on this crucial constitutional feature, the subjects of the Constitution, these puzzles may be solved once and for all. And as they are solved, it becomes clear that this approach constitutes a new model of judicial review.

But the implications of this new paradigm are not limited to federal jurisdiction. It turns out that confusion over the deep puzzles of federal jurisdiction has had subtle but profound feedback effects on substantive constitutional doctrine as well. Once these jurisdictional puzzles are solved, the scope of constitutional rights and powers comes into new focus as well. These implications ripple through the most important and controversial doctrines of constitutional law, from the scope of the Commerce Clause to the reach of the First Amendment, from the meaning of equal protection to the content of privileges and immunities, from the nature of due process to the shape of abortion rights.

And all of it derives from nothing more complicated than asking the right first question: who has violated the Constitution?

Take one simple and obvious example. Courts typically ask, “Does this statute violate the Constitution?” But this article teaches that the correct question is “Did Congress violate the Constitution by enacting the statute?” If this is the correct question, then a challenge to such a statute, for example, for exceeding the powers of Congress must be “facial” rather than “as applied” since what matters is whether Congress was acting unconstitutionality when it passed the statute, and before it is applied to anyone (which happens later).

Also affected by this shift in focus are matters of standing and ripeness, two objections made by the government to the constitutional challenges to the health insurance reform act (“Obamacare”):

[T]he important point is that any legislative violation of the Constitution is complete at the moment of enactment, and any subsequent facts must be irrelevant to the merits; whereas an executive violation of the Constitution happens later, and the facts of execution may be essential to the inquiry. So if the who is Congress, then the challenge is more likely to be ripe earlier—indeed, most strikingly, it might be ripe immediately after enactment, and before any enforcement whatsoever.

This explains our intuition that, upon passage of the act, citizens or states should be allowed to challenge it (actually, its passage) as soon as it is enacted, as they did.

[Additional thought: This is a textualist rather than an originalist analysis. Anyone who is concerned about the actual wording of the Constitution, which many nonoriginalists claim to be, should be interested in this thesis.]

So you should download and read The Subjects of the Constitution, and then prepare yourself for the sequel: “The Objects of the Constitution.” (Law review editors, watch your Inbox.) Path breaking constitutional scholarship does not appear every day.

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