Posted by: Deborah D | May 31, 2010

Who has violated the Constitution?

Debby's Web Finds
Who has violated the Constitution?

This is from the website The Volokh Conspiracy. The writer, Randy Barnett, a law professor, has taken note of an interesting article in the Stanford Law Review. Barnett says, “It is one of those rare pieces that hits you between the eyes and causes you to reconsider how you think about the Constitution.” Instead of concentrating on the “what” of constitutional violation, the author of the law review article, Nick Rosenkranz, says that judicial review should concentrate on the first question: Who has violated the Constitution? As dry as this might seem to you, it could make a very real difference in your life as it is applied to such laws as Obamacare.

Barnett quotes the article, which is called The Subjects of the Constitution. Downloadable here:

…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…Snip –

…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.

And all of it derives from nothing more complicated than asking the right first question: who has violated the Constitution?

The author of the blog post, Barnett, offers Obamacare as an example (and boy, what an example it is.)

Courts typically ask, “Does this statute violate the Constitution?” But this article teaches that the correct question is “Did Congress violate the Constitution by enacting the statute?” If this is the correct question, then a challenge to such a statute, for example, for exceeding the powers of Congress must be “facial” rather than “as applied” since what matters is whether Congress was acting unconstitutionality when it passed the statute, and before it is applied to anyone (which happens later). 

Also affected by this shift in focus are matters of standing and ripeness, two objections made by the government to the constitutional challenges to the health insurance reform act (“Obamacare”):

[T]he important point is that any legislative violation of the Constitution is complete at the moment of enactment, and any subsequent facts must be irrelevant to the merits; whereas an executive violation of the Constitution happens later, and the facts of execution may be essential to the inquiry. So if the who is Congress, then the challenge is more likely to be ripe earlier—indeed, most strikingly, it might be ripe immediately after enactment, and before any enforcement whatsoever.

This explains our intuition that, upon passage of the act, citizens or states should be allowed to challenge it (actually, its passage) as soon as it is enacted, as they did. 

This is quite a new thing in the legal world, but it makes much sense. This allows Americans to challenge the passage of a law before it comes into effect because Congress (the “who” in this instance) was violating the Constitution in passing the law in the first place. Interesting, and something worthy of watching as challenges to Obamacare come into view. Read it all here:


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