Framing transactions in constitutional law.

• Author: Levinson, Daryl J.

1. INTRODUCTION

   Common-law rules and adjudication are structured around discrete transactions between strangers. The prevailing, classically liberal, model of tort, contract, and property cases features atomistic individuals who interact only at the point of a discontinuous event, sharply limited in space and time. In the case of a tortious collision, for example, the unit of legal analysis, or "transaction," is intuitively defined by the self-contained, harm-inflicting interaction that disrupted the otherwise unrelated lives of the two parties. The focus of adjudication is on the harm to the plaintiff, which can be measured by the marginal deviation from her position or welfare just prior to the collision with the defendant. This model of "transactional harm" operates so ubiquitously and uncontroversially in most common-law cases that we seldom even recognize its significance: Transactional harm is the basic conceptual mold that shapes human interactions into legally cognizable events.

   Constitutional cases, like common-law ones, are typically conceptualized as discrete transactions in which government inflicts harm on some individual by making her worse off relative to some baseline position or, under equality rules, relative to some reference individual or group. In the constitutional context, however, the model of transactional harm becomes immediately and irremediably problematic. The problem is that in constitutional law we quickly lose our intuitive grasp on what counts as a transaction for purposes of identifying harm. Unlike the paradigmatic private parties in common-law cases, whose lives intersect only at the point of some discontinuous interaction, government and citizens are not strangers to one another. Quite the contrary, government and citizens, individually and collectively, are engaged in a continuous relationship--one that plays out over a historical time frame and over a scope as broad as the public sphere. When constitutional law borrows the model of transactional harm, it must somehow slice this ceaseless and complex course of dealings into adjudicative transactions for the purpose of evaluating whether government has inflicted a constitutionally cognizable harm. But in the absence of a discrete common-law collision between strangers, constitutional law has no criteria for isolating transactions from the background relationship between government and citizens.

   As a result, the "frames" that define constitutional law transactions, when recognized as such, inevitably seem arbitrary and unjustified. And without any way of fixing frames, the entire model of transactional harm falls apart. Most constitutional law regimes ask whether some individual has been harmed by government with respect to some qualitative interest, like speech, property, or equality. Any attempt to answer this question, however, will founder on the difficulty that government and citizens, in the course of their ongoing relationship, continuously pass countless harms and benefits back and forth. The question of whether government has harmed some individual citizen (or vice versa) is meaningful only relative to some transactional frame that determines how much of that relationship, which of the multitudinous benefits and harms, should be included within the constitutionally relevant transaction. All the rest, left outside the transactional frame, will dissolve into the background or baseline from which harm is measured. (1) It all depends on how you slice it. Lacking any natural joints along which to cut, courts and theorists carving out constitutional transactions are left to rely upon inconsistent, manipulable, and normatively opaque intuitions. The results of constitutional cases turn on the location, size, and shape of often-invisible transactional frames that are positioned prior to any deliberation over the meaning or purposes of constitutional rights. This is the basic problem of "framing transactions" in constitutional law. (2)

   To make this concrete, suppose that the United States government conscripts a tugboat from a private owner for military use during World War II. (3) The owner sues under the Fifth Amendment, demanding just compensation for a government taking. No one denies that the owner has suffered the type of economic harm for which takings law demands compensation, but there is some dispute about the magnitude of this harm. Against the usual rule that market value is the measure of just compensation, the government argues that the market price of tugboats has been inflated by the government's increased demand during wartime. Certainly the government has inflicted a localized economic harm on the owner by taking his tugboat and depriving him of its market value; but this harm arguably should be offset by a prior benefit afforded the owner by the government, namely, the windfall increase in the market value of his property resulting from the government's war effort. Should the windfall benefit of the war be entirely disregarded, or should it be included in the same transactional frame as the tugboat conscription?

   In the actual tugboat takings case, the Supreme Court did indeed allow the government to offset the price effects of its own increased demand for boats during wartime. (4) After all, the Court reasoned, the inflated market price of the tugboat represents a component of "value which the government itself created and hence in fairness should not be required to pay." (5) But what about other benefits that the government itself created? The value of the tugboat may have been enhanced by a prewar harbor dredging project by the federal corps of engineers that expanded the local harbor, not to mention the rules of property and contract, and their publicly financed enforcement mechanisms, without which the tugboat would have no market value at all. Certainly the government contributed to the owner's general wealth and welfare through innumerable benefits at slightly greater distance, in time or subject matter, from the tugboat--ranging from the Coast Guard and lighthouses to public schools and mortgage subsidies. (6) As the ledger of costs and benefits thus expands, the net economic harm--or, perhaps, benefit--to the owner quickly becomes indeterminate.

   Needless to say, the Court in the tugboat takings case did not even consider expanding the frame far enough to allow the government to offset, or claim restitution for, these "unrelated" benefits. As a descriptive matter, the Court's limited willingness to expand the transactional frame is not entirely unpredictable; it appeals to vague intuitions about the "germaneness" of benefits and costs or the existence of a chronological or subject-matter "nexus" between them. Normatively, however, the placement of transactional frames is always deeply puzzling. The takings right is conventionally understood to protect individuals from bearing severely disproportionate economic burdens that should be spread over taxpayers generally. (7) If the focus of takings analysis is on concentrated economic burdens, then any offsetting economic benefits that would reduce or eliminate these burdens would seem equally relevant. As long as the takings right is understood to be about economic burdens on individual property owners, it is difficult to imagine normatively meaningful limitations on the kinds of offsetting benefits that government might invoke to argue that it has implicitly compensated its taking. Limiting the transactional frame to include some offsetting benefits but not others seems perfectly arbitrary.

   Unfortunately, the problem of framing transactions is in no way unique to takings jurisprudence. In virtually every area of constitutional law, rights are conventionally understood to protect individuals against transactional harm to some qualitative interest. For example, free speech jurisprudence is widely understood to protect an individual's speech against government suppression; equal protection jurisprudence is widely understood to protect members of racial or gender groups against selective disadvantages imposed by government; and Religion Clause jurisprudence is widely understood to prevent government from advantaging religious groups relative to nonreligious groups or the other way around. In each of these settings, and many others, however, government will usually be able to point to numerous respects in which it has benefited the very same constitutionally significant interest that is now, in some particular respect, burdened. If our complete understanding of the constitutional right at stake is that it protects against government-inflicted harm to that interest, we will have no criteria internal to constitutional analysis for deciding why any allegation of constitutional harm should not be offset by some handful of government-conferred benefits. Transactional frames will determine the outcome of cases, but decisions about how to frame will seem strategic or arbitrary--insofar as they are even recognized as decisions at all.

   As this Article attempts to demonstrate, the problem of framing constitutional transactions is insoluble in its own terms. Fortunately, though, we need not accept these terms. Framing puzzles inevitably result from the misguided attempt to superimpose a common-law model of discrete, individualized harm on the continuous, benefit-laden relationship between government and citizens. Once we recognize that constitutional rights cannot be modeled in the same way as common-law ones, however, we might shift the focus of constitutional analysis from transactional harm suffered by individuals to more systemic types of government failure and how these failures might be prevented through constitutional adjudication. Rather than reflexively understanding every constitutional right as preventing a simplistic type of harm to some individual, courts and theorists might begin by developing thicker accounts of constitutional norms, (8)...