Posted by: captainfalcon | May 28, 2010

“The Subjects of the Constitution” is an Originalist Worm

The Subjects of the Constitution has gotten some play in the libertarian wonkosphere. It is a pretty good piece of constitutional theory, which makes it weird that it’s being peddled on (even wonkish) general interest blogs. Contemporary constitutional theory – especially good contemporary constitutional theory – rarely makes it to the laity. (Before you object to this observation’s elitism, notice that it is true.) Here’s a theory why it is the exception.

Rosenkranz argues that the judicial practice of holding statutes in violation of the Constitution is incoherent, (a fortiori) incorrect and has had pernicious effects. Statutes cannot violate the Constitution, only actions can. Further, because the Constitution is addressed to the government, only government actions can violate it. And actions require actors. The first step in ascertaining whether the Constitution has been violated, then, is to ask who has violated it (in effect, Congress or the President?). In order to ascertain who has violated it, one must discover what (allegedly) unconstitutional action the culprit has perform. Actions occur at times. Thus, in order to answer who? one needs to answer when?

Rosenkranz thinks this shift in focus will have various felicitous doctrinal and political implications. Politically, “To say that ‘a statute violates the constitution’ is not merely harmless euphemism. This formulation has corrupted and confused the nation’s dialogue about its Constitution…To say that ‘a statute’  – rather than a government official – violates the Constitution is to conceal and abet a constitutional culprit. This sort of circumlocution renders our government more opaque and less accountable” (1221). Rosenkranz thinks that focusing on who violates the Constitution will discourage government actors from doing unconstitutional things. He says this will improve government accountability, but it’s more controversial than that. It will up governmental accountability for violating the Constitution. If that’s what we want to hold government accountable for, then it is proper to speak of this improving government accountability. Otherwise, no.

Nonetheless a theory that implies an increase in the accountability of actors who violate the Constitution is not therefore especially controversial. The mainstream of the legal academy (at least, officially) and the populace agree that fidelity to the Constitution is important. Rosenkranz’s theory does more than this, however. His focus on constitutional subjects forecloses certain interpretive approaches.

First, because, by Rosenkranz’s lights, if Congress violates the Constitution by making law, it does so at the moment it makes the law, it follows that the meaning of the law is fixed at the time Congress makes it. Rosenkranz’s theory thus implies statutory originalism. As a consequence, it cannot make sense of allowing how a statute is applied to have bearing on what the statute means. This is exemplified in Rosenkranz’s discussion of what was at issue in Gonzalez v. Raich:

At first, Raich’s answer seems clear: “Respondents . . . do not dispute that passage of the [Controlled Substances Act] . . . was well within Congress’s commerce power. Nor do they contend that any provision or section of the CSA amounts to an unconstitutional exercise of congressional authority.” These sentences appear to rule out Congress as the constitutional culprit.

But next comes the all-important, incoherent hedge: “Rather, respondents’ challenge is actually quite limited; they argue that the CSA’s categorical prohibition of the manufacture and possession of marijuana as applied to the intrastate manufacture and possession of marijuana for medical purposes pursuant to California law exceeds Congress’ authority under the Commerce Clause.” What can this possibly mean? “[P]assage of the [Act] . . . was well within Congress’s commerce power . . . [but] the [Act’s] prohibition . . . as applied [by the President?] . . . exceeds Congress’ authority.” Who has violated the Constitution? (1277; footnotes omitted)

The hedge is certainly difficult to make sense of within Rosenkranz’s framework. If the options are (i) either Congress violates the Constitution (by making a law its forbidden to make), or (ii) the Executive violates the Constitution (by undertaking an enforcement it is forbidden to undertake) then either a law or an enforcement will be constitutionally suspect (depending on who has violated the Constitution). A law enforced, on the other hand, cannot be constitutionally suspect. Even if we can make sense of what this category is, it is not one of the categories that the Rosenkranz framework recognizes.

If we jettison the Rosenkranz framework, however, we can see exactly what Raich is arguing. She is making an interpretive claim about the CSA. Her argument: if its categorical prohibition of marijuana were read to reach intrastate manufacture and possession then the CSA would be unconstitutional. Therefore, the CSA should not be read to have that reach. In other words, a purported application of the statute would imply that the statute is unconstitutional, so the purported application is actually no application at all.

The possibility of this type of interpretation is obscured by an approach that emphasizes the subjects of the Constitution. By requiring a statute to be unconstitutional or constitutional at the moment of its enactment, Rosenkranz’s framework does not allow for statutory fuzziness that can be worked out piecemeal over time.

Finally, in order to pay attention to who violates the Constitution, one must pay attention to to whom the Constitution addresses itself. As Randy Barnett recognizes (see his “additional thought”), this pushes one towards scrupulous attention to the document’s text. That, as opposed to in the deeper purposes of the Constitution, is where an answer to the who question is most likely to be found. (After all, the purposes e.g. of separation of powers can no doubt be achieved in many, radically different, ways.)

We can now see why Rosenkranz’s theory has made it to the libertarian wonkosphere. A seemingly apolitical starting point yields deeply political conclusions, viz. the combination of textualism, statutory originalism and heightened accountability for violating the Constitution (thusly conceived). These are powerful weapons in the fight to roll back the administrative state.

Update: It occurs to me that Subjects also loads the dice in favor of rulism (which, of course, is in conflict with originalism, but “originalism” in the post’s title is meant in its looser, politicized sense). If statutory fuzziness is theoretically disallowed – if a law is constitutional or unconstitutional at the moment of its enactment – then it is, at least, a risky proposition for Congress to enact general standards (which could reasonably be read to license patterns of unconstitutional behavior) as opposed to specific rules.


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