INTRODUCTION I. THE TWO DIMENSIONS OF THE WHO QUESTION A. Barron v. Baltimore B. Beyond Barron 1. Federal subjects a. The objects of Article I, Section 8 b. The objects of Article I, Section 9 2. State subjects II. THE OBJECTS OF THE BILL OF RIGHTS A. The Subject of the First Amendment B. The Object of the Third Amendment C. The Objects of the Fourth Amendment 1. The object of searches and seizures 2. The object of warrants 3. The Fourth Amendment as a whole D. The Objects of the Fifth Amendment 1. The objects of due process 2. The objects of takings E. The Objects of Procedure F. The Bill of Rights as a Whole III. THE OBJECTS OF THE FOURTEENTH AMENDMENT A. Objective Incorporation B. Changing the Subject 1. Protoincorporation, ex post facto 2. Incorporating the First Amendment 3. Incorporating quartering 4. Incorporating warrants 5. Incorporating takings CONCLUSION "The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments." (1)
"The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer." (2)
The Constitution empowers and restricts different officials differently. A constitutional claim is a claim that a particular government actor has exceeded a grant of power or transgressed a restriction. But 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. Current practice speaks, euphemistically, of challenges to "statutes," thus obscuring the subjects of constitutional claims. But the Constitution does not prohibit statutes; it prohibits actions--the actions of particular government actors. 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?
This Article's predecessor, The Subjects of the Constitution, (3) demonstrated the analytical power of this seemingly innocuous question. To begin with, the who question reveals constitutional culprits, triggering the essential backstops of constitutional accountability. If the Constitution has been violated, the People must know who has violated it, so that they can know whom to blame, whom to vote against, whom to impeach. (4)
But that is not all. The who question also establishes the two basic forms of judicial review. In the typical constitutional case, the legislature will make a law, the executive will execute it, and someone will claim that his constitutional rights have been violated. The first question to ask such a claimant is who has violated the Constitution? The legislature, by making the law? Or the executive, by executing it?
This fundamental dichotomy, between judicial review of legislative action and judicial review of executive action, is the organizing dichotomy of constitutional law. It is this dichotomy that the Court has obscured with its anthropomorphic trope that "statutes"--rather than government actors--violate the Constitution. And it is this dichotomy that the Court has been grasping for with its muddled distinction between "facial challenges to statutes" and "as-applied challenges to statutes." 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.
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. Clear thinking about the who question thus solves deep jurisdictional fiddles. And the solutions to these riddles, in turn, have profound feedback effects on the substantive scope of constitutional fights and powers.
To demonstrate all this, The Subjects of the Constitution took as its primary examples the Commerce Clause, Section 5 of the Fourteenth Amendment, and the six clauses of the First Amendment. These examples were apt, because each of these clauses is written in the active voice, with the same express subject. Under each of these clauses, there can be only one answer to the who question: Congress. But the examples chosen were also, in a sense, the easiest clauses for this approach. Most clauses, unfortunately, are not so clear.
This Article picks up where its predecessor left off. The predecessor established the primacy of the who question; this Article shows how to answer it. Part I begins with the intellectual primogenitor of this approach: Chief Justice Marshall's masterful opinion for the Court in Barron v. Baltimore. It then presses beyond Barron, using Marshall's method to address the questions that he left unanswered. Part II analyzes several of the passive-voice 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. Part III turns to Section 1 of the Fourteenth Amendment. Its key sentence, unlike the bulk of the Bill of Rights, is written in the active voice, with an explicit subject ("State"), but the who question is nevertheless quite subtle, because the sentence does not specify the relevant branch of state government. This Part shows how the answer informs the incorporation debate. It builds on Akhil Amar's insight that the Bill of Rights underwent "refinement" when incorporated against the states by the Fourteenth Amendment, (5) and it 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 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 very 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. Indeed, this is the primary strategy that the Constitution deploys to constrain governmental power; more than any other principle of institutional design, the Framers pinned their hopes on the axiom that ambition may counteract ambition. (6) And so, in allocating each governmental power--and in "giv[ing] to each [branch] a constitutional control over the others" (7)--the first question was, inevitably, who? (8) 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. (9)
THE TWO DIMENSIONS OF THE WHO QUESTION
Every government official is bound by the Constitution. "[United States] Senators and Representatives ..., and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, [are] bound by Oath or Affirmation, to support th[e] Constitution...." (10) It binds them all, and any of them might violate it. Any branch of state or federal government could be the answer to the who question.
But--and this is the crucial point--the Constitution restricts these different actors differently. (11) Some constitutional clauses restrict the actions of Congress; others restrict the actions of the President; still others restrict the actions of the judiciary; yet others restrict the actions of the corresponding branches of state governments. These restrictions differ in their subject matter from clause to clause. But even more important, they differ in their fundamental form. The universe of actors that can violate the Constitution is large, but the universe that can violate any given clause is substantially smaller. Each clause is carefully tailored, not only to its subject matter, but also to its subject--that is, to the governmental actor that it addresses and binds.
The Constitution binds six sorts of entities, so there are six sorts of entities that can violate the Constitution, six possible answers to the who question: (1) Congress; (2) the President; (3) the federal courts; (4) state legislatures; (5) state executives; and (6) state courts. (12)
These six can, of course, be divided across two dimensions, reflecting the two great structural themes of the Constitution, separation of powers and federalism. So the potential answers to the who question may be categorized as federal (Congress, the President, the federal courts) versus state (state legislatures, state executives, state courts); and they may be categorized as legislative (Congress, state legislatures), executive (the President, state executives), and judicial (federal courts, state courts).
All of this is, on one level, utterly familiar. After all, in the typical law school curriculum, the subject of Constitutional Law I is constitutional structure. The entire course is, in a sense, dedicated to asking who questions and categorizing the answers across these two dimensions. But in Constitutional Law II, this analysis is largely forgotten. The study of constitutional rights is almost entirely limited to the scope of the rights, and the great structural questions, the who questions--rights against whom?--are almost entirely overlooked...