INTRODUCTION I. WHO HAS VIOLATED THE CONSTITUTION? II. WHEN IS THE CONSTITUTION VIOLATED? III. THE CONSTITUTIONAL STRUCTURE OF JUDICIAL REVIEW A. "Facial" vs. "As-Applied" Challenges B. Lex Ipsa Loquitur C. Execution Challenges D. The Forms of Judicial Review E. Before and After the Merits 1. Before the merits a. Ripeness. b. Standing. 2. After the merits IV. THE SUBJECT OF THE FIRST AMENDMENT A. Overbreadth B. Taxpayer Standing C. The Scope of First Amendment Rights D. The First Amendment as a Whole V. THE SUBJECT OF THE COMMERCE CLAUSE A. "Facial" and "As-Applied" Commerce Clause Challenges B. The Scope of the Commerce Clause VI. THE SUBJECT OF SECTION FIVE VII. THE SUBJECT OF LEGISLATIVE POWER CONCLUSION 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 System (2) in 1953-"asking much the same questions formulated by Henry Hart and Herbert 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 fights, 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 fiddle 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 all of these clauses share a single subject.
The sequel to this Article will apply the same method to the most important clauses that do not have an explicit and precise subject. This Article establishes the primacy of the who question; the sequel will show how to answer it. The question is difficult in the case of Section 1 of the Fourteenth Amendment, because it begins "no State shall"--a clear subject ("State"), but no indication of the branch of state government. And more difficult still is the Bill of Rights, most of which is written in the passive voice. Its provisions have clear subjects, but in the passive voice, the grammatical subject is not the "logical subject," (5) the "doer," (6) the "agent." (7) In other words, these clauses all elide the question: by whom? (8)--the question of object. It is these difficult clauses that are the subjects of the sequel, The Objects of the Constitution.
In short, these two articles set forth a new model of judicial review, a new lens through which to read the Constitution. Reading the entire document through this new lens is the work of a lifetime. But grinding the lens--and training it on a few of the most important clauses--may be accomplished in two articles, this one and its sequel.
And all of it derives from nothing more complicated than asking the right first question.
WHO HAS VIOLATED THE CONSTITUTION?
The Constitution prohibits certain actions. This is the nature of legal prohibitions, as criminal law scholars know: violations of the Constitution, like violations of a criminal code, are effected by actions, by actus rei. (9) Judicial review is the constitutional review of such actions. (10)
And actions require actors, just as verbs require subjects. Thus, a constitutional claim is necessarily a claim that some actor has acted inconsistently with the Constitution. And so, every constitutional claim should begin by pointing a finger. Every exercise of judicial review should begin by identifying a governmental (11) actor, a constitutional subject. And every constitutional holding should start by saying who has violated the Constitution.
If one were approaching constitutional law for the first time, one might have expected every constitutional judicial opinion to begin with the alleged constitutional culprit, the subject of the claim. After all, the Constitution itself affirms our popular sovereignty with the largest letters on the parchment, the first three words, the ringing subject. Its very claim to authority depends on who has ordained and established it: "We the People.: (12) Indeed, in English grammar, the first step is always to identify the subject. (13) Before one can understand the logic of a sentence, let alone the authority of a constitution or the structure of a constitutional claim, one must always answer the essential, the first, the most basic question: who?
Yet, as a general matter, the Court 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 the President violated the Constitution. And yet the Court rarely says that "Congress has violated the Constitution" or "the President has violated the Constitution." Instead, it has hit upon a formulation that elides this most important question. It has taken to saying: "the statute violates the Constitution."
This formulation derives, perhaps, from an odd linguistic quirk. Congress acts by making laws. But the product of the action of Congress--the statute, the public law--is also called an "Act of Congress." In grammatical terms, "act" is both a noun ("an act") and a verb ("to act"), (14) as it has been since before the Founding.(15) The Constitution itself avoids this grammatical ambiguity, always carefully referring to federal legislative output as "Law" (16) or "legislation" (17) (which Congress "makes" (18) or "passes" (19)). But, unfortunately, Congress adopted the grammatically ambiguous sometime-noun from the beginning, styling its t-n-st law an "Act." (20) And now, in common parlance, when...