Tuesday, June 7, 2011
The Constitution empowers and restricts different officials differently. Because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Thus, every constitutional inquiry should begin with the subject of the constitutional claim. And the first question in any such inquiry should be the who question: who has allegedly violated the Constitution?
The who question establishes the two basic forms of judicial review. The dichotomy between judicial review of legislative action and judicial review of executive action is the organizing dichotomy of constitutional law. Judicial review of legislative action and judicial review of executive action are two fundamentally different enterprises - formally, structurally, temporally different. And these basic differences dictate both the structure and the substance of judicial review. Properly understood, a "facial challenge" is nothing more nor less than a challenge to legislative action, and an "as-applied challenge" is nothing more nor less than a challenge to executive action. Clear thinking about the who question thus solves deep jurisdictional riddles. And the solutions to these riddles, in turn, have profound feedback effects on the substantive scope of constitutional rights and powers.
This article begins with the intellectual primogenitor of this approach: Barron v. Baltimore. It then presses beyond Barron, using Chief Justice Marshall's method to address the questions that he left unanswered. It proceeds to analyze several clauses of the Bill of Rights, in the first systematic effort to identify their implied objects. As it turns out, these objects form a pattern, which amounts to a central, structural theme of the Bill of Rights that has long been overlooked. This Article then turns to the Fourteenth Amendment, to determine exactly who is bound by its most resonant clauses. Building on Akhil Amar's insight that the Bill of Rights underwent "refinement" when incorporated against the states by the Fourteenth Amendment, this article identifies perhaps the most important refinement of all: refinement of the actors bound by the Bill - refinement of its objects.
In short, this Article and its predecessor, The Subjects of the Constitution, amount to a new model of constitutional review, a new lens through which to read the Constitution. This approach begins with a grammatical exercise: identifying the subjects and objects of the Constitution. But this is hardly linguistic casuistry or grammatical fetishism. The subjects and objects of the Constitution are not merely features of constitutional text; they are the pillars of constitutional structure. The very words "federalism" and "separation of powers" are simply shorthand for the deep truth that the Constitution empowers and restricts different governmental actors in different ways. To elide the who question is to overlook the central feature of our constitutional structure. And it is this structure, above all, that is the object of the Constitution.