Author Archive | Nick Rosenkranz

Constitutional Law After ObamaCare

The Manhattan Institute will be hosting a promising conference on this topic at the Century Club in New York City on Thursday evening, November 29th. I have been asked to speak about The Subjects of the Constitution and The Objects of the Constitution. Other speakers are Prof. Michael Greve of George Mason Law School; Prof. Richard Epstein of NYU Law School; and attorney/commentator Adam Freedman. The moderator will be James Copland, Director, Center for Legal Policy, Manhattan Institute. As I understand it, New York CLE accreditation is pending. Information and registration here. [...]

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Drug Treaties Do Not Empower Congress To Override Or Repeal State Referenda Legalizing Marijuana

In a press release last week, the President of the International Narcotics Control Board, Raymond Yans, asserted that the recent referenda legalizing marijuana in Colorado and Washington “are in violation of the international drug control treaties.” He is almost certainly wrong about that; federal drug laws keep the United States in compliance with such treaties regardless of changes in state law. But Yans then seems to suggest that the federal government could somehow override or repeal the state referenda, on the strength of these treaties. He’s almost certainly wrong about that too, as Jacob Sullum explains over at Reason (citing my Harvard Law Review article, Executing the Treaty Power). [...]

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IQ2US Debate: Legalize Drugs

Intelligence Squared is hosting a debate on the motion “Legalize Drugs” tomorrow evening, Wednesday, November 14, 6:45-8:30pm, at the Kaufman Center, 129 West 67th Street 
(btw Broadway and Amsterdam), New York City.

For the motion: Nick Gillespie, Editor-in-Chief of and Reason TV, and Prof. Paul Butler, my colleague at Georgetown Law. Against the motion: Asa Hutchinson, former Administrator of DEA, and Theodore Dalrymple of the Manhattan Institute.

These debates are usually quite good, and this one is particularly timely in light of the recent referenda in Colorado and Washington. (Full disclosure: my father is the Chairman of IQ2US, and I am on the Board of Advisors). One interesting feature is that the live audience votes on the motion both before the debate and after, so it is possible to know which side “won” in the sense of changing the most minds. You can also vote online, here.

Tickets are available here. If you can’t make it to the live debate, you can watch live online here, or download the NPR podcast via iTunes next week, here. [...]

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I saw Lincoln last night, and I was pleasantly surprised to find that the movie is almost entirely about the history of the Thirteenth Amendment. Tony Kushner’s writing and Steven Spielberg’s directing are perhaps just a bit heavy-handed, but the acting is superb. And how often do you get to see a movie about the U.S. Constitution? [...]

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Hello, Conspiracy! I have been a fan of the Volokh Conspiracy since its inception, and I am honored to join you as the newest Conspirator. Some of you may recall my guest posts from September of 2011, or Randy Barnett’s extremely generous review of my recent work. For those who don’t know me, I am a Professor of Law at Georgetown, a Senior Fellow at Cato, and a sometime Broadway producer. I’ll be blogging primarily about law, courts, and the Constitution, with perhaps the occasional observation about arts and culture, especially theatre. I look forward to mixing it up with my esteemed co-Conspirators, and I look forward to the comments of our excellent readers. Stay tuned! [...]

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The Subjects of the Constitution — Final Thoughts

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. [...]

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The Objects of the Fourteenth Amendment

This week, I have argued that the great overlooked question in constitutional law is the who question: who has allegedly violated the Constitution? The question is important, first, for simple reasons of constitutional accountability: if you care about the Constitution, you should care about who is violating it.  But it is also important because it frames the organizing dichotomy of constitutional review.  The Constitution binds different governmental actors in different ways.  And judicial review of legislative action is fundamentally, structurally different from judicial review of executive action.  What the Court calls a “facial challenge” is actually a (broad and text-focused) challenge to legislative action.  What the Court calls an “as-applied” challenge is actually a (narrow and fact-focused) challenge to executive action.

So, it is essential to know which clauses of the Constitution bind which governmental actors.  Sometimes, happily, it is easy to tell, because some clauses are written in the active voice, with an explicit subject.  “Congress shall make no law … abridging the freedom of speech.”  “The Congress shall have power … To regulate Commerce … among the several States.”  Challenges under these provisions are challenges to legislative action.  They are inherently “facial” and do not turn at all upon specific facts that arise after the legislature made the law.  (Those facts might matter for preliminary questions, like standing, but they will not matter to the merits of the constitutional inquiry.)

Unfortunately, most clauses of the Bill of Rights are not so easy.  Most of them are written in the passive voice, inviting the question: by whom? Yesterday, I argued that most of these clauses bind the Executive (or Judicial) branch rather than Congress.  This explains the Court’s intuition that most constitutional challenges are properly fact-based, or “as-applied”.

The Fourteenth Amendment is more difficult still, but in a [...]

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The Objects of the Constitution

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 [...]

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The Subject of the Commerce Clause

In light of some of the comments and questions on my prior posts, it might be helpful to take a step back and explain exactly what puzzle I started out trying to solve.  For this discussion, we will use an example near and dear to the Conspiracy’s heart: the scope of the Commerce Clause, and whether it can justify the individual mandate of ObamaCare.

But first, the puzzle.  The Court has intuited that there are two basic forms of judicial review.  It has called these two forms “facial challenges to statutes” and “as-applied challenges to statutes.” But the distinction between them is quite confused. Under current doctrine, an “as-applied challenge” is somehow narrower, turning on the challenger’s specific facts and implying a remedy tailored to those facts. A “facial challenge” is broader and more general, implying, somehow, that the statute is rotten to the core, and perhaps suggesting a sweeping remedial declaration that the statute is “void.”  An as-applied challenge is mostly about facts, whereas a facial challenge is mostly about text.  But when is the former appropriate and when the latter? Precisely what remedy is appropriate in each case? Indeed, what exactly do these terms — “facial” and “as-applied” — even mean?

The Court has issued precious little guidance on the matter, merely emphasizing that it considers “as-applied” challenges to be the norm, and “facial” challenges to be a “disfavored” exception to the rule.  In a case called Salerno, the Court said: “A facial challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”  That may sound like a clear rule, but courts and commentators have struggled mightily to figure out what it means.  [...]

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Who Has Violated the Constitution?

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 [...]

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The Subjects of the Constitution

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 [...]

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