Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2010 The Subjects of the Constitution Nicholas Quinn Rosenkranz Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/365 62 Stan. L. Rev. 1209 (2010) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Constitutional Law Commons, Courts Commons, and the Judges Commons Volume 62, Issue 5 Page 1209 Stanford Law Review THE SUBJECTS OF THE CONSTITUTION Nicholas Quinn Rosenkranz © 2010 by the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Revie w at 62 STAN. L. REV. 1209 (2010). For more information visit http://www.stanfordlawreview.org. Georgetown Public Law and Legal Theory Research Paper No. 10-25 ROSENKRANZ-62_STAN._L._REV_1209.DOC (DO NOT DELETE) 5/17/2010 6:38 PM ARTICLES THE SUBJECTS OF THE CONSTITUTION Nicholas Quinn Rosenkranz* INTRODUCTION.....................................................................................................1210 I. WHO HAS VIOLATED THE CONSTITUTION? ...................................................1212 II. WHEN IS THE CONSTITUTION VIOLATED? .....................................................1224 III. THE CONSTITUTIONAL STRUCTURE OF JUDICIAL REVIEW.............................1227 A. “Facial” vs. “As-Applied” Challenges....................................................1230 B. Lex Ipsa Loquitur .....................................................................................1235 C. Execution Challenges...............................................................................1238 D. The Forms of Judicial Review..................................................................1242 E. Before and After the Merits......................................................................1244 1. Before the merits ...............................................................................1245 a. Ripeness.......................................................................................1245 b. Standing.......................................................................................1246 2. After the merits..................................................................................1248 IV. THE SUBJECT OF THE FIRST AMENDMENT .....................................................1250 A. Overbreadth .............................................................................................1250 B. Taxpayer Standing....................................................................................1257 C. The Scope of First Amendment Rights......................................................1263 D. The First Amendment as a Whole.............................................................1268 V. THE SUBJECT OF THE COMMERCE CLAUSE....................................................1273 A. “Facial” and “As-Applied” Commerce Clause Challenges....................1273 B. The Scope of the Commerce Clause .........................................................1279 VI. THE SUBJECT OF SECTION FIVE.....................................................................1281 VII. THE SUBJECT OF LEGISLATIVE POWER..........................................................1288 CONCLUSION........................................................................................................1290 * Associate Professor of Law, Georgetown University Law Center. Yale University, B.A. 1992, J.D. 1999. Thanks to Akhil Reed Amar, Michelle Boardman, Laurence Claus, Frank Easterbrook, Richard Fallon, Nita Farahany, Tali Farhadian, Curtis Gannon, Jack L. Goldsmith III, Stephanie Hessler, John Manning, Jonathan Mitchell, Laura Beth Moss, and Mark Tushnet. And thanks, also, to Emil Bove, Mike Chittenden, Rupal Doshi, Ed Duffy, C. Francis Dukin, Will Hudson, Peter Jaffe, Aslynn Johnson, Tyler Mark, Leah J. Tulin, Zachary Vaughan, and Hanah Metchis Volokh for first-rate research assistance. 1209 ROSENKRANZ-62_STAN._L._REV_1209.DOC (DO NOT DELETE) 5/17/2010 6:38 PM 1210 STANFORD LAW REVIEW [Vol. 62:1209 INTRODUCTION Two centuries after Marbury v. Madison,1 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. This fundamental confusion, like most confusion in law, stems from insufficient attention to text. Individual words are important, of course, but equally important is textual structure. The words form clauses and take on grammatical functions within those clauses. Within their clauses, these words become subjects, verbs, objects. The grammatical relationship among these words may be just as revealing as the words themselves. Grammatical imprecision can cause—and has caused—deep analytical and doctrinal confusion. But careful attention to constitutional grammar can reveal—and will reveal—nothing less than the constitutional structure of judicial review. 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. According to Harvard Law Professor Richard Fallon, federal courts scholars have been doing much the same thing since the original publication of The Federal Courts and the Federal System2 in 1953— “asking much the same questions formulated by Henry Hart and Herbert 1. 5 U.S. (1 Cranch) 137 (1803). 2.HENRY M. HART, JR. & HERBERT WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1st ed. 1953). ROSENKRANZ-62_STAN._L._REV_1209.DOC (DO NOT DELETE) 5/17/2010 6:38 PM May 2010] SUBJECTS OF THE CONSTITUTION 1211 Wechsler . and trying to answer them with roughly the same techniques.”3 This Article takes up Fallon’s challenge “to [r]eshape the Hart and Wechsler [p]aradigm,”4 by proposing a new starting point: the who of constitutional violation. 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. Parts I-III of this Article set forth a new model of judicial review. Part I argues that judicial review should begin by asking who has violated the Constitution. This seemingly innocuous question, which the Court has studiously avoided, turns out to be analytically incendiary, and not merely because it unmasks constitutional culprits. Part II then asks the when question: when was the Constitution violated? And it shows how the answer to when follows inexorably from the answer to who. Part III explains how these two simple questions dictate the structure of judicial review. And it shows how the structure of judicial review, in turn, informs the scope of substantive constitutional rights and powers. Parts IV-VII apply this model to some of the most important sections of the Constitution—ones written in the active voice, with a single, explicit subject. Part IV applies this model to the First Amendment, where it both solves jurisdictional riddles and informs the substantive scope of rights, all in a way that harmonizes the six clauses of the Amendment. Part V applies the same analysis to the Commerce Clause, again solving a riddle about the structure of judicial review and in turn deducing the scope of the power. Part VI does the same with Section 5 of the Fourteenth Amendment. And Part VII draws out important parallels—textual, structural, and doctrinal—among the clauses discussed in the prior three parts. These parallels have not been recognized before, but they reflect a singular doctrinal logic and harmony—precisely because