The subjects of the constitution

Stanford Law Review

Volumn 62, Issue 5, 2010, Pages 1209-1292

  Rosenkranz, Nicholas Quinn ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77952664002     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (386)

1. 5 U.S. (1 Cranch) 137 (1803).
2. Henry M. Hart, JR. & Herbert Wechsler, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (1st ed. 1953).
3. Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 VAND. L. REV. 953, 954-55 (1994).
4. Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 VAND. L. REV. 979.
5. SYLVIA CHALKER & EDMUND WEINER, THE OXFORD DICTIONARY OF ENGLISH GRAMMAR 379 (1998 ed.) (entry for "subject") ("To overcome the ambiguity of the word subject, traditional grammar sometimes qualified the word. Thus in addition to a grammatical subject there might be a logical subject, particularly with a passive verb.").
6. R.W. BURCHFIELD, THE NEW FOWLER'S MODERN ENGLISH USAGE 576 (rev. 3d ed. 1998) ("In passive constructions the active subject has become the passive agent, and the agent is (in this case) preceded by by. In practice, however, in the majority of passives, the by-agent is left unexpressed....");
7. HARRY SHAW, MCGRAW-HILL HANDBOOK OF ENGLISH 12-13 (4th ed. 1978) ("When a verb appears in the passive voice, the actual performer of the action appears either in a prepositional phrase at the end of the sentence or is not specifically named at all.").
8. Wayne R. Lafave, SUBSTANTIVE CRIMINAL LAW § 11.4 (2d ed. 2003) (describing various formulations of the actus reus requirement and stating that "[o]ne of the basic premises of the criminal law is that bad thoughts alone cannot constitute a crime... There must also be an act"). In constitutional law, as in criminal law, an omission can be an actus reus. See id. § 11.4(e) ("The Model Penal Code requires 'an act or omission constituting a substantial step in a course of conduct planned to culminate in [the actor's] commission of the crime.'" (alteration in original) (footnote omitted) (quoting MODEL PENAL CODE § 5.01(1)(c) (1962))). An omission can violate the Constitution, because the Constitution imposes certain duties to act. For example, the Constitution provides that the President "shall take Care that the Laws be faithfully executed." U.S. CONST. art. II, § 3. The adverb "faithfully" gives the President substantial discretion to prioritize and allocate resources in the execution of the law.
9. Charles L. Black, Jr., Further Reflections on the Constitutional Justice of Livelihood, 86 COLUM. L. REV. 1103, 1112 (1986) [hereinafter Black, Further Reflections] ("The President cannot do everything imaginable to bring it about that the laws be faithfully executed; he is limited by his own physical and mental powers, by other claims on these, and by the amplitude of the means put at his disposal by Congress."). But if he were to refuse to execute the laws altogether, that omission would constitute a violation of the Take Care Clause.
10. Charles L. Black, JR., IMPEACHMENT: A HANDBOOK 42-43 (1974) ("I, myself, feel no doubt that it is a violation of his constitutional duty for a president to use his discretionary power (which sometimes must be given him) over expenditures, for the improper purpose of dismantling altogether, or severely crippling, programs that have been regularly enacted in lawful form; this seems to me a violation of his duty to take care that the laws be faithfully executed. 'Faithfully' is a word that does not keep company with the disingenuous pretense that economy is the motive, when the real motive is hostility to the law."); Black, Further Reflections, supra, at 1112 ("The duty has to be a duty to act prudently within these limits, without ulterior motive, sensitive to the force of the powerful conscience-stirring word 'faithfully.'"); cf. Akhil Reed Amar, Remember the Thirteenth, 10 CONST. COMMENT. 403, 404 (1993) ("I suggest the [Thirteenth] Amendment... prohibits certain kinds of state inaction."). Whether a constitutional violation ever requires mens rea is a much more difficult question. See infra note 84.
11. See THE FEDERALIST NO. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 2003) (referencing "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void" (emphasis added)); id. at 466 ("[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." (emphasis added)); 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 542, at 405 (Melville M. Bigelow ed., William S. Hein 1994) (1833) ("[The judiciary faces] the constant necessity of scrutinizing the acts of [the other branches]... and the painful duty of pronouncing judgment, that these acts are a departure from the law or constitution...." (emphasis added)); see also Nixon v. United States, 506 U.S. 224, 238 (1993) ("[C]ourts possess power to review either legislative or executive action that transgresses identifiable textual limits." (emphasis added)); U.S. Dep't of Commerce v. Montana, 503 U.S. 442, 459 (1992) ("[T]oday we review the actions of Congress." (emphasis added)); United States v. Richardson, 418 U.S. 166, 188 (1974) (Powell, J., concurring) (referring to the judicial branch's "power to negative the actions of the other branches" (emphasis added));
12. Alexander M. Bickel, THE LEAST DANGEROUS BRANCH 1 (2d ed. 1986) ("The power which distinguishes the Supreme Court of the United States is that of constitutional review of actions of the other branches of government, federal and state." (emphasis added)); BLACK'S LAW DICTIONARY 864 (8th ed. 2004) (defining judicial review as "[a] court's power to review the actions of other branches or levels of government; esp., the courts' power to invalidate legislative and executive actions as being unconstitutional" (emphasis added));
13. Jesse H. Choper, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 6 (1980) (referencing "the power of judicial review to declare unconstitutional legislative, executive, or administrative action" (emphasis added)); see also Boumediene v. Bush, 128 S. Ct. 2229, 2297 n.2 (2008) (Scalia, J., dissenting) ("The Court must either hold that the Suspension Clause has 'expanded' in its application to aliens abroad, or acknowledge that it has no basis to set aside the actions of Congress and the President." (emphasis added)); INS v. Chadha, 462 U.S. 919, 944 (1983) ("We turn now to the question whether action of one House of Congress under § 244(c)(2) violates strictures of the Constitution." (emphasis added)); cf. Preseault v. I.C.C., 494 U.S. 1, 9 (1990) ("The primary issue in this case is whether Congress has violated the Fifth Amendment by precluding reversion of state property interests." (emphasis added)); Sable Comm'ns of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989) ("To the extent that the federal parties suggest that we should defer to Congress' conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution." (emphasis added)); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 548 (1983) ("[W]e conclude that Congress has not violated TWR's First Amendment rights...." (emphasis added)); Vance v. Bradley, 440 U.S. 93, 94-95 (1979) ("The issue presented is whether Congress violates the equal protection component of the Fifth Amendment's Due Process Clause by requiring retirement at age 60 of federal employees covered by the Foreign Service retirement and disability system but not those covered by the Civil Service retirement and disability system." (footnote omitted)); Schlesinger v. Ballard, 419 U.S. 498, 578-79 (1975) ("We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment." (emphasis added)).
14. Laurence H. Tribe, How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment, 12 CONST. COMMENT. 217, 219 (1995) (referring to the general principle "that our Constitution's provisions, even when they don't say so expressly, limit only some appropriate level of government" (footnote omitted)). For the moment, this Article will set aside the theoretical possibility that private individuals may violate certain constitutional clauses. See U.S. CONST. amend. XIII, § 1 ("Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."); id. amend. XXI, § 2 ("The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."); Amar, supra note 9, at 403 ("[T]he Thirteenth Amendment clearly applies to... private action: Slavery, the Amendment commands, shall not exist."); Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, 155 (1992) ("The Thirteenth Amendment's abolition of slavery and involuntary servitude speaks directly to private, as well as governmental, misconduct; indeed, it authorizes governmental regulation in order to abolish all of the vestiges, 'badges[,] and incidents' of the slavery system." (alteration in original) (quoting Civil Rights Cases, 109 U.S. 3, 35-36 (1883) (Harlan, J., dissenting))); Tribe, supra, at 219 ("The text [of the Twenty-First Amendment] actually forbids the private conduct it identifies, rather than conferring power on the States as such. This has the singular effect of putting the Twenty-First Amendment on a pedestal most observers have always assumed was reserved for the rather more august Thirteenth Amendment, which is typically described as the only exception to the principle that our Constitution's provisions, even when they don't say so expressly, limit only some appropriate level of government." (footnote omitted)); id. at 220 ("The upshot is that there are two ways, and two ways only, in which an ordinary private citizen, acting under her own steam and under color of no law, can violate the United States Constitution. One is to enslave somebody, a suitably hellish act. The other is to bring a bottle of beer, wine, or bourbon into a State in violation of its beverage control laws....").
15. U.S. CONST. pmbl.; see Akhil Reed Amar, AMERICA'S CONSTITUTION: A BIOGRAPHY 5 (2005) ("These words [of the Preamble] did more than promise popular self-government. They also embodied and enacted it. Like the phrases 'I do' in an exchange of wedding vows and 'I accept' in a contract, the Preamble's words actually performed the very thing they described. Thus the Founders' 'Constitution' was not merely a text but a deed-a constituting. We the People do ordain.");
16. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1439 (1987) ("Indeed, this single idea [popular sovereignty] informs every article of the Federalist Constitution, from the Preamble to Article VII. It was thus no happenstance that the Federalists chose to introduce their work with words that ringingly proclaimed the primacy of that new understanding: 'We the People of the United States... do ordain and establish this Constitution for the United States of America.'" (omission in original) (footnote omitted)).
17. Allen H. Weld, WELD'S ENGLISH GRAMMAR 24 (Portland, Sanborn & Carter improved ed. 1849) ("In analyzing [sentence structure,]... first look for the subject....");
18. Alonzo Reed, INTRODUCTORY LANGUAGE WORK 9 (New York, Effingham Maynard 1891) ("[H]alf of all grammatical errors come from not ascertaining the nominative.");
19. CHALKER & WEINER, supra note 5 (entry for "subject") ("[t]hat part of the sentence that usually comes first and of which the rest of the sentence is predicated." (emphasis added));
20. John B. Opdycke, HARPER'S ENGLISH GRAMMAR 263 (Rev. ed., Steward Benedict ed. 1966) ("The traditional type of sentence analysis involves these steps: Tell what kind of sentence... read the independent clause or clauses, and the dependent clause or clauses; name the essential subject and predicate of every clause in the sentence and also the complete subject and predicate....").
21. While formal sentence diagramming postdates the Framing, see Alonzo Reed & Brainerd Kellogg, HIGHER LESSONS IN ENGLISH 17-18 (New York, Clark & Maynard 1880), even grammar texts of the early nineteenth century make clear that the subject should always be taught first and analyzed first.
22. William Cobbett, A GRAMMAR OF THE ENGLISH LANGUAGE 110 (Rodopi B.V. 1983) (1818) ("[I]n grammar, as in moral conduct, one fault [in properly identifying the nominative] almost necessarily produces others. Look, therefore, at your nominative, before you put a verb upon paper....");
23. Lindley Murray, ABRIDGMENT OF ENGLISH GRAMMAR: COMPREHENDING THE PRINCIPLES AND RULES OF THE LANGUAGE, at vi, 71 (Concord, J.B. Moore rev. ed. 1827) (systematically teaching and analyzing the nominative first);
24. Ralph Harrison, RUDIMENTS OF ENGLISH GRAMMAR 86 (Philadelphia, Whitehall Press 1798) (same).
25. See BLACK'S LAW DICTIONARY 42 (rev. 4th ed. 1968).
26. Francis Allen, A COMPLETE ENGLISH DICTIONARY 6 (London, J. Wilson & J. Fell 1765);
27. Samuel Johnson, A DICTIONARY OF THE ENGLISH LANGUAGE 43 (London, J.F. & C. Rivington et al. 8th ed. 1786).
28. See, e.g., U.S. CONST. art. 1, § 2, cl. 3 ("The actual Enumeration shall be made.. . in such Manner as they shall by Law direct." (emphasis added)); id. art. I, § 4 ("[T]he Congress may at any time by Law make or alter such Regulations.... The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day." (emphasis added)); id. art. I, § 7, cl. 2 ("Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.... If after such Reconsideration two thirds of [the originating] House shall agree to pass the Bill... and if approved by two thirds of [the other] House, it shall become a Law.... If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." (emphasis added)); id. art. I, § 8, cl. 18 ("To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers...." (emphasis added)); id. art. II, § 2, cl. 2 ("He shall... appoint... all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." (emphasis added)); id. art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof...." (emphasis added)); cf. id. art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." (emphasis added)).
29. See, e.g., id. amend. XIII, § 2 ("Congress shall have power to enforce this article by appropriate legislation." (emphasis added)); id. amend. XIV, § 5 ("The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." (emphasis added)); id. amend. XV, § 2 ("The Congress shall have the power to enforce this article by appropriate legislation." (emphasis added)); id. amend. XVIII, § 2 (repealed 1933) ("The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." (emphasis added)); id. amend. XIX, cl. 2 ("Congress shall have power to enforce this article by appropriate legislation." (emphasis added)); id. amend. XXIII, § 2 ("The Congress shall have power to enforce this article by appropriate legislation." (emphasis added)); id. amend. XXIV, § 2 ("The Congress shall have power to enforce this article by appropriate legislation." (emphasis added)); id. amend. XXVI, § 2 ("The Congress shall have power to enforce this article by appropriate legislation." (emphasis added)).
30. See, e.g., id. art. I, § 8 ("The Congress shall have Power... To make all Laws which shall be necessary and proper...." (emphasis added)); id. amend. I ("Congress shall make no law...." (emphasis added)); id. art. IV, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land...." (emphasis added)). The Constitution consistently pairs the verb "make" with the noun "law," and the verb "pass" with the noun "bill." The only exceptions are the Ex Post Facto clauses, and these exceptions are perhaps explained by the pairing of ex post facto laws and bills of attainder. Id. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed." (emphasis added)); id. art. I, § 10, cl. 1 ("No State shall... pass any Bill of Attainder, ex post facto Law, or Law impairing the obligation of Contracts...." (emphasis added)).
31. See, e.g., id. art. I, § 7, cl. 2 ("Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.... If after such Reconsideration two thirds of [the originating] House shall agree to pass the Bill... and if approved by two thirds of [the other] House, it shall become a Law." (emphasis added)); id. art. I, § 9, cl. 3 ("No Bill of Attainder or ex post facto Law shall be passed." (emphasis added)).
32. Act of June 1, 1789, ch. 1, 1 Stat. 23 (calling the first laws of the United States the "Acts of the First Congress" and the first law "An Act to regulate the Time and Manner of administering certain Oaths"); see also 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 245 (Max Farrand ed., rev. ed. 1966) (Madison notes that it was "[r]esd. that all Acts of the U. States in Congs.... shall be the supreme law of the respective States...." (emphasis added)). In this, Congress was presumably following the English practice. See, e.g., Life Assurance Act, 1774, 14 Geo. 3, c. 48 (Eng.), available at http://www.opsi.gov.uk/RevisedStatutes/Acts/apgb/1774/capgb_17740048_en_1; see also ENGLISH PUBLIC LAW § 2.48, at 113 (David Feldman ed., 2004) ("The passing of Acts of Parliament [is] the principal form of primary legislation for England....").
33. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155-62 (1803) (analyzing at length precisely when the "act of the President" appointing and commissioning Marbury was complete).
34. Id. at 175, 178 (emphasis added); see also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) ("The first question made in the cause is, has Congress power to incorporate a bank." (emphasis added)).
35. See sources cited supra note 10.
36. In some cases, the context and the (past) tense of the associated verb suggest that the Court was referring to Congress's enactment of the statute. See, e.g., Downes v. Bidwell, 182 U.S. 244, 280 (1901) ("Indeed, in the only instance in which this court has declared an act of Congress unconstitutional as trespassing upon the rights of territories, (the Missouri Compromise,) such action was dictated by motives of humanity and justice, and so far commanded popular approval as to be embodied in the Thirteenth Amendment to the Constitution." (emphasis added)); In re Emblen, 161 U.S. 52, 56 (1896) ("Such being the state of the case, it is quite clear that (even if the act of Congress was unconstitutional, which we do not intimate) the writ of mandamus prayed for should not be granted." (emphasis added)); Marbury, 5 U.S at 178 ("[I]f the legislature shall do what is expressly forbidden, such act... is in reality [in]effectual." (emphasis added)). In other cases, the context and the (present) tense of the associated verb make clear that the Court was referring to the statute itself. See, e.g., Ashcroft v. ACLU, 535 U.S. 564, 566 (2002) ("This case presents the narrow question whether the Child Online Protection Act's . use of 'community standards' to identify 'material that is harmful to minors' violates the First Amendment." (emphasis added)); United States v. Christian Echoes Nat'l Ministry, Inc., 404 U.S. 561, 565-66 (1972) (per curiam) ("Although the construction was based on a constitutional premise, it did not amount to a holding that an Act of Congress is unconstitutional, as contemplated by § 1252." (emphasis added)); Frothingham v. Mellon, 262 U.S. 447, 488 (1923) ("We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional." (second and third emphases added)); Muskrat v. United States, 219 U.S. 346, 361 (1911) ("The right to declare a law unconstitutional arises because an act of Congress relied upon by one or the other of such parties in determining their rights is in conflict with the fundamental law." (emphases added)). But in most cases, the Court's reference to an "act of Congress" remains ambiguous, even in context. See, e.g., Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 316 (1985) ("In McLucas v. DeChamplain, this Court similarly entertained an appeal from an order that granted a preliminary injunction and in the process held an Act of Congress unconstitutional." (second emphasis added) (citation omitted)); Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 559 n.7 (1977) (Rehnquist, J., dissenting) ("Marbury v. Madison... established the authority of this Court to hold an Act of Congress unconstitutional...." (second emphasis added)); Palmore v. United States, 411 U.S. 389, 416 (1973) (Douglas, J., dissenting) ("In O'Donoghue v. United States, the Court held unconstitutional an Act of Congress reducing the salaries of trial and appellate judges in the District of Columbia." (second emphasis added) (citation omitted)); United States v. Raines, 362 U.S. 17, 22 (1960) ("The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined." (emphasis added)); United States v. Realty Co., 163 U.S. 427, 439 (1896) ("It is true that in general an unconstitutional act of Congress is the same as if there were no act." (emphasis added)); Sinking-Fund Cases, 99 U.S. 700, 718 (1878) ("It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States; but this declaration should never be made except in a clear case." (emphasis added)).
37. See, e.g., Kansas v. Marsh, 548 U.S. 163, 165-66 (2006) ("We must decide whether this statute.... violates the Constitution." (emphasis added)); Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631, 646 (2005) ("A statute that retroactively repudiates the Government's contractual obligation may violate the Constitution." (emphasis added)); Virginia v. Black, 538 U.S. 343, 347 (2003) (Stevens, J., plurality) ("In this case we consider whether the Commonwealth of Virginia's statute banning cross burning . . violates the First Amendment." (emphasis added)); id. at 387 (Souter, J., concurring) ("I conclude that the statute under which all three of the respondents were prosecuted violates the First Amendment...." (emphasis added)); Stenberg v. Carhart, 530 U.S. 914, 922 (2000) ("We hold that this statute violates the Constitution." (emphasis added)); Roth v. United States, 354 U.S. 476, 479 (1957) ("[T]he primary constitutional question is whether the federal obscenity statute violates the [Free Speech Clause] of the First Amendment...." (emphasis added)); United States v. Nugent, 346 U.S. 1, 10 (1953) ("Under the circumstances presented, we cannot hold that the statute, as we construe it, violates the Constitution." (emphasis added)); First Nat. Bank of Chi. v. United Air Lines, 342 U.S. 396, 397-98 (1952) ("[W]e recently held... that a Wisconsin statute, much like that of Illinois, did violate the Full Faith and Credit Clause." (emphasis added)); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 547 (1949) ("[A] federal court would not give effect, in either a diversity or nondiversity case, to a state statute that violates the Constitution of the United States." (emphasis added)); United States v. Reynolds, 235 U.S. 133, 148 (1914) ("In such cases this court must determine for itself whether a given enactment violates the Constitution of the United States...." (emphasis added)); see also Rogers v. Tennessee, 532 U.S. 451, 470 (2001) (Scalia, J., dissenting) ("Such a statute violates the Ex Post Facto Clause...." (first emphasis added)); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 579-80 (1993) (Blackmun, J., concurring) ("It is for this reason that a statute that explicitly restricts religious practices violates the First Amendment." (emphasis added)).
38. See Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998) ("The [constitutional avoidance] doctrine seeks in part to minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections." (emphasis added)); Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 610 (1869) ("This court always approaches the consideration of [constitutional] questions of this nature reluctantly; and its constant rule of decision has been, and is, that acts of Congress must be regarded as constitutional, unless clearly shown to be otherwise." (emphasis added)); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345-49 (1936) (Brandeis, J., concurring) (affirming the principle that the judiciary should avoid constitutional questions and enumerating seven strategies for doing so); United States v. Morrison, 529 U.S. 598, 607 (2000) ("Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds."); Spector Motor Serv. v. McLaughlin, 323 U.S. 101, 105 (1994) ("If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality... unless such adjudication is unavoidable."); Blair v. United States, 250 U.S. 273, 279 (1919) ("Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function...." (emphasis added)); cf. Adkins v. Children's Hosp., 261 U.S. 525, 544 (1923) ("The judicial duty of passing upon the constitutionality of an act of Congress is one of great gravity and delicacy."); Ex parte Garland, 71 U.S. (4 Wall.) 333, 382 (1866) (Miller, J., dissenting) ("It is at all times the exercise of an estremely [sic] delicate power for this court of [sic] declare that the Congress of the nation, or the legislative body of a State, has assumed an authority not belonging to it, and by violating the Constitution, has rendered void its attempt at legislation.").
39. See, e.g., Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir. 1988) (plaintiff unable to identify which manufacturer of asbestos products was responsible for his asbestos exposure); Sindell v. Abbott Labs., 607 P.2d 924 (Cal. 1980) (plaintiff could not identify which manufacturer was responsible for the particular DES taken by her mother); Summers v. Tice, 199 P.2d 1 (Cal. 1948) (plaintiff could not identify which defendant shot him); Ybarra v. Spangard, 154 P.2d 687, 691 (Cal. 1944) (plaintiff could succeed in medical malpractice suit arising from treatment rendered while unconscious, even though he could not identify particular doctor responsible, because at least one doctor in the group must have been responsible).
40. See New York v. United States, 505 U.S. 144, 168-69 (1992) ("[W]here the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished.... [W]here the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation."); Freytag v. Comm'r, 501 U.S. 868, 884 (1991) ("The Framers understood, however, that by limiting the appointment power, they could ensure that those who wielded it were accountable to political force and the will of the people. Thus, the Clause bespeaks a principle of limitation by dividing the power to appoint the principal federal officers-ambassadors, ministers, heads of departments, and judges-between the Executive and Legislative Branches. Even with respect to 'inferior Officers,' the Clause allows Congress only limited authority to devolve appointment power on the President, his heads of departments, and the courts of law." (citation omitted)); Morrison v. Olson, 487 U.S. 654, 731 (1988) (Scalia, J., dissenting) ("[T]he Founders envisioned when they established a single Chief Executive accountable to the people [that thus] the blame can be assigned to someone who can be punished."); see also THE FEDERALIST No. 70 (Alexander Hamilton), supra note 10, at 426 ("But one of the weightiest objections to a plurality in the executive, and which lies as much against the last as the first plan is that it tends to conceal faults and destroy responsibility... [T]he multiplication of the executive adds to the difficulty of detection.... It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall."); id. at 427 ("It is evident from these considerations that the plurality of the executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power, first, the restraints of public opinion, which lose their efficacy, as well on account of the division of the censure attendant on bad measures among a number as on account of the uncertainty on whom it ought to fall; and, second, the opportunity of discovering with facility and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment in cases which admit of it.").
41. John M. Broder, Familiar Fallback for Officials: 'Mistakes Were Made,' N.Y. TIMES, Mar. 14, 2007, at A18;
42. Dan Eggen & Paul Kane, Gonzales: 'Mistakes Were Made,' WASH. POST, Mar. 14, 2007, at A01;
43. see also President's Address Before a Joint Session of the Congress on the State of the Union, 23 WEEKLY COMP. PRES. DOC. 59 (Jan. 27, 1987), available at http://www.nytimes.com/1987/01/28/us/transcript-of-president-s-message-to- nation-on-state-of-union.html; Jessica Garrison, Obituaries, Ron Ziegler, 63-Press Secretary Remained Loyal to Nixon Throughout Watergate, L.A. TIMES, Feb. 11, 2003, at B10.
44. See, e.g., supra note 28.
45. John Ruskin, 3 MODERN PAINTERS 70, 71 (1856) (defining a pathetic fallacy as the "attribut[ion] to [inanimate objects of]... characters of a living creature...." and describing it as "false appearances... entirely unconnected with any real power or character in the object, and only imputed to it by [those perceiving the object]").
46. See BICKEL, supra note 10, at 1 ("The power which distinguishes the Supreme Court of the United States is that of constitutional review of actions of the other branches of government, federal and state." (emphasis added)); BLACK'S LAW DICTIONARY, supra note 10 (defining judicial review as "[a] court's power to review the actions of other branches or levels of government; esp., the courts' power to invalidate legislative and executive actions as being unconstitutional" (emphasis added)); CHOPER, supra note 10, at 6 (discussing "the power of judicial review to declare unconstitutional legislative, executive, or administrative action" (emphasis added)); THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 10, at 465 (discussing "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void" (emphasis added)).
47. Likewise, and for this same reason, a gerund should not be the subject in a formulation of judicial review. NEW OXFORD AMERICAN DICTIONARY 712 (Elizabeth J. Jewell & Frank Abate eds., 2001) ("[G]erund... n[oun:]... a form that is derived from a verb but that functions as a noun, in English ending in -ing, e.g., asking in do you mind my asking you?."). At first glance, it might be tempting to say, for example, that "impairing the obligation of contracts violates the constitution." But this formulation, too, is terminally imprecise; it depends, of course, on who is doing the impairing. A state violates the constitution by impairing the obligation of contracts; the federal government does not. See U.S. CONST. art. I, § 10, cl. 1 ("No State shall... pass any... Law impairing the Obligation of Contracts...." (emphasis added)); Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 732-33 & n.9 (1984) ("It could not justifiably be claimed that the Contract Clause applies, either by its own terms or by convincing historical evidence, to actions of the National Government.").
48. James Madison, Report on Virginia Resolutions (1800), reprinted in 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 546, 569 (Jonathan Elliott ed., J.B. Lippincott & Co. 1876).
49. Id.; see also Fleming v. Page, 50 U.S. (9 How.) 603, 618 (1850) ("[I]n the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them,... as regards... any... subject where the rights and powers of the executive arm of the government are brought into question. Our own Constitution and form of government must be our only guide.").
50. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803) ("[The Constitution] organizes the government,... assigns, to different departments, their respective powers... [and] establish[es] certain limits not to be transcended by those departments... [T]hose limits... confine the persons on whom they are imposed.").
51. See Barron v. Baltimore, 32 U.S. 243, 247, 250-51 (1833).
52. See, e.g., N.Y. Times Co. v. United States, 403 U.S. 713, 718-19 (1971) (Black, J., concurring) (assuming without discussion that the First Amendment applied to the Executive and the Judiciary, despite its textual limitation to "Congress"); Bouie v. City of Columbia, 378 U.S. 347, 353-54 (1964) ("If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction."); Bolling v. Sharpe, 347 U.S. 497, 500 (1954) ("In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government."); Joint Anti- Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 144 (1951) (Black, J., concurring) ("I cannot believe that the authors of the Constitution, who outlawed the bill of attainder, inadvertently endowed the executive with power to engage in the same tyrannical practices that made the bill such an odious institution.");
53. Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 HARV. L. REV. 701, 706 (1995) ("[Despite its textual limitation to 'Congress'], the Speech or Debate Clause... is best read not to bar analogous immunities of coordinate branches but rather, if anything, to invite them. And the same holds true... for its companion, the Article I, Section 6 Arrest Clause.");
54. Mark P. Denbeaux, The First Word of the First Amendment, 80 NW. U. L. REV. 1156, 1156 (1986) (describing the "most popular" view that the First Amendment's limitation to Congress "was an unaccountable slip of the pen by the Founding Fathers, and that no meaning could be attached to it").
55. See, e.g., THE FEDERALIST No. 78 (Alexander Hamilton), supra note 10, at 464 ("The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.... Though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter...."); THE FEDERALIST No. 51 (James Madison), supra note 10, at 318 ("[S]eparate and distinct exercise of the different powers of government... is... essential to the preservation of liberty"); id. at 318-19 ("[T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must... be made commensurate to the danger of attack."); id. at 320 ("In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people."); THE FEDERALIST No. 48 (James Madison), supra note 10, at 305 ("After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others. What this security ought to be is the great problem to be solved."); id. at 306-07 ("The legislative department['s]... constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments... On the other side, the executive power being restrained within a narrower compass and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves.").
56. Only recently, for example, the Court acknowledged its "equivoca[tion]" about precisely when an uncounseled interrogation violates the Sixth Amendment-during pre-trial interrogation or at trial. Not until a few months ago did the Court announce: "[W]e conclude that the... right to be free of uncounseled interrogation... is infringed at the time of the interrogation. That, we think, is when the 'Assistance of Counsel' is denied." Kansas v. Ventris, 129 S. Ct. 1841, 1846 (2009) (emphasis added). The point was important in Kansas v. Ventris because it implied that "[the] case does not involve, therefore, the prevention of a constitutional violation, but rather the scope of the remedy for a violation that has already occurred." Id. at 1846 (emphasis added). Note the analytical primacy of locating constitutional violations in time, before confronting questions of prevention or of remedy- and note how the Court failed to answer this fundamental question until 2009.
57. See U.S. CONST. amend. IV; United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990) ("[A] violation of the [Fourth] Amendment is 'fully accomplished' at the time of an unreasonable government intrusion."); United States v. Leon, 468 U.S. 897, 906 (1984) ("The wrong condemned by the [Fourth] Amendment is 'fully accomplished' by the unlawful search or seizure itself....").
58. Cf. THE FEDERALIST No. 50 (James Madison), supra note 10, at 315 (distinguishing between legislative "abuses"-"breaking through the restraints of the Constitution"-and the subsequent "mischievous effects" of such abuses).
59. The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. Off. Legal Counsel 55, 59 (1980) [hereinafter Attorney General's Duty].
60. It might be tempting to say that the President actually has a hand in "making" laws by signing bills. But the Constitution never speaks in these terms. "All legislative powers herein granted shall be vested in a Congress," not "a Congress and a President." U.S. CONST. art. I, § 1. "The Congress"-not "the Congress and the President"-"shall have power... To make all laws which shall be necessary and proper...." Id. art. I, § 8. The Constitution grants "Congress"-not "Congress and the President"-power to enforce various amendments "by appropriate legislation." See id. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, § 2; id. amend. XVIII, § 2; amend. XIX; id. amend. XXIII, § 2; id. amend. XXIV, § 2; id. amend. XXVI, § 2. And "Congress"-not "Congress and the President"- "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Id. amend. I. Never does the Constitution use the words "veto power," let alone give the President a share of "legislative power." Rather, Article I, Section 7, imposes a strictly binary duty on the President: "If he approve [a bill] he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated." Id. art. I, § 7 (emphasis added). And if he shirks this duty for ten days (and Congress remains in session), then the bill becomes a law automatically. See id. art. I, § 7 ("If any bill shall not be returned by the President with ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless Congress by their adjournment prevent its return, in which case it shall not be a law."). In short, the Constitution makes clear that Congress and Congress alone has power to "make" laws, even if the making is not complete until a bill is presented to the President and (a) ten days pass, (b) the President signs, or (c) Congress overrides a veto.
61. Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1363, 1384 (1973) (describing mootness as "standing set in a time frame");
62. Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 YALE L.J. 1389-92 (describing different possible times at which a constitutional violation would occur and be ripe for review).
63. Federal courts can also violate the Constitution, as will be discussed in the sequel to this Article.
64. U.S. CONST. art. I, § 1.
65. U.S. CONST. art. I, § 8.
66. One exception is a claim that Congress (or a single House) has violated the constitutional separation of powers by exercising executive or judicial, rather than legislative, power. See, e.g., INS v. Chadha, 462 U.S. 919 (1983).
67. U.S. CONST. art. VI, cl. 2 (emphasis added).
68. See McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 423 (1819) ("Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." (emphasis added)); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("[A] legislative act contrary to the constitution is not law....").
69. Hylton v. United States, 3 U.S. (3 Dall.) 171, 175 (1796) (opinion of Chase, J.) ("[I]t is unnecessary, at this time, for me to determine, whether this court, constitutionally possesses the power to declare an act of Congress void, on the ground of its being made contrary to, and in violation of, the Constitution...." (emphasis omitted and added)).
70. See Marbury, 5 U.S. at 180 ("[I]n declaring what shall be the supreme law of the land, [the Constitution describes]... not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void...." (original emphasis omitted)).
71. U.S. CONST. art. II, § 1.
72. An exception is a claim that the President has violated the constitutional separation of powers by exercising legislative or judicial, rather than executive, power. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
73. Saikrishna Prakash, The Chief Prosecutor, 73 GEO. WASH. L. REV. 521, 537 (2005) ("[T]he principle meaning of executive power is the authority to execute the laws.").
74. The President might also violate the constitution in the exercise of his other Article II powers. He might, for example "make" an invalid treaty. See U.S. CONST. art. II.
75. The President might also violate the constitution in the exercise of his other Article II powers. He might, for example "make" an invalid treaty. See U.S. CONST. art. II, § 2.
76. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 516-17 (2004) ("The threshold question before us is whether the Executive has the authority to detain citizens who qualify as 'enemy combatants.'... The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution."); Youngstown, 343 U.S. at 585-87 ("The President's power, if any, to issue the order must stem either from an act of Congress, or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. Indeed, we do not understand the Government to rely on statutory authorization for this seizure.... It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution.").
77. U.S. CONST. art. II, § 3.
78. Richard H. Fallon, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 432-33 n.13 (6th ed. 2009).
79. Steven G. Calabresi, Substantive Due Process After Gonzales v. Carhart, 106 MICH. L. REV. 1517, 1521 (2008) (noting that Kennedy's preference for as-applied instead of facial challenges had an impact in Gonzales v. Carhart and could be an indicator "that the Roberts Court will henceforth produce much more modest substantive due process decisions than the late Rehnquist Court");
80. Edward A. Hartnett, Modest Hope for a Modest Roberts Court: Deference, Facial Challenges, and the Comparative Competence of Courts, 59 SMU L. REV. 1735, 1735, 1756-57 (2006) (The Roberts Court has "a strong preference for as-applied rather than facial approaches to constitutional adjudication," which affects "cases [that] cut across the broad swath of constitutional areas involving the question of facial as opposed to as-applied challenges: Congressional power under Section Five of the Fourteenth Amendment; substantive due process protection for abortion; and First Amendment limitation on campaign finance regulation");
81. William E. Thro, An Essay: The Roberts Court at Dawn: Clarity, Humility, and the Future of Education Law, 222 EDUC. L. REP. 491, 503 (2007) ("[T]he Roberts Court seems committed to restricting facial challenges alleging overbreadth to some First Amendment contexts and, perhaps, to eliminating them altogether.");
82. Douglas W. Kmiec, The Facial/As-Applied Challenge-Partially Aborted, SLATE, May 23, 2008, http://www.slate.com/blogs/blogs/convictions/archive/2008/05/23/the-facial-as-applied-distinction-partially-aborted.aspx;
83. Douglas W. Kmiec, Facing Consensus: The Importance of the "Facial" vs. "As-Applied" Distinction in the Roberts Court, SLATE, Apr. 29, 2008, http://www.slate.com/blogs/blogs/convictions/archive/ 2008/04/29/facing-consensus-the-importance-of-the-facial-versus-as-applied-distinctions-in- the-roberts-court.aspx;
84. David G. Savage, About Face, A.B.A. J., Jul. 1, 2008, at 21 ("The U.S. Supreme Court under Chief Justice John G. Roberts Jr. has been sending a message to lawyers who want to challenge state laws as unconstitutional. It goes like this: Show us the proof. Be specific. And if you want us to throw out an entire law because it may infringe the rights of a few people, you may be wasting your time. Here's another way to say it: Facial challenges are out. As-applied challenges are in."); OrinKerr.com, A Question for Judges and Law Clerks Both Current and Former, http://www.orinkerr.com/2006/04/20/a- question-for-judges-and-law-clerks-both-current-and-former (last visited May 1, 2010).
85. Six state court opinions had previously used the "challenge to statute" formulation. See Livesay v. Wright, 6 Colo. 92, 96 (1881) ("This, in effect, challenges the statute as unconstitutional." (emphasis added)); State v. Creditor, 24 P. 346, 346 (Kan. 1890) ("He appeals, and challenges the validity of the statute." (emphasis added)); Mo. Pac. Ry. Co. v. Haley, 25 Kan. 35, (1881) ("[T]he defendant's counsel challenge the constitutionality of the statute in a long and able argument." (emphasis added)); State v. Dinnisse, 41 Mo. App. 22, 22 (Ct. App. 1890) ("The defendant in his brief challenges the constitutionality of the law under which he was prosecuted." (emphasis added)); Hallenbeck v. Hahn, 2 Neb. 377, 1872 WL 5832, at *12 (1872) ("We may well, therefore, call upon those who challenge the validity of the law of 1869 to point out the section of that instrument which has been disregarded in its enactment...." (emphasis added)); People v. Carpenter, 24 N.Y. 86, 92 (1861) ("Those who challenge the existence of the law, were called on to show the notices were not given." (emphasis added)). Interestingly, two of these six cases are from Kansas, where Justice Brewer served on the state supreme court, and three more are from neighboring states: Colorado, Missouri, and Nebraska. Apparently, this formulation was a mere regional colloquialism until Justice Brewer brought it from the Kansas Supreme Court to the United States Supreme Court. Special thanks to Research Assistant Ed Duffy for spotting this geographic pattern.
86. United States v. Ballin, 144 U.S. 1, 9 (1892) (Brewer, J.) ("[T]he law, as found in the office of the secretary of state, is beyond challenge.").
87. See South Dakota v. North Carolina, 192 U.S. 286, 309 (1904) ("There is no challenge of the statutes by which they were authorized."); Beals v. Cone, 188 U.S. 184, 188 (1903) ("Neither did the plaintiff in error, prior to the judgment of affirmance in the supreme court, challenge the validity of any state statute on the ground of its repugnance to paramount Federal law."); Travelers' Ins. Co. v. Connecticut, 185 U.S. 364, 372 (1902) ("'This whole argument of a right under the Federal Constitution to challenge a tax law on the ground of inequality in the burdens resulting from the operation of the law is put at rest by the decision in Bell's Gap R. Co. v. Pennsylvania....'" (citation omitted)); Parsons v. District of Columbia, 170 U.S. 45, 51 (1898) ("In each case, therefore, where the party, whose property is subjected to the charge of a public burden, challenges the validity of the law under which it was imposed, it becomes the duty of the courts to closely consider the special nature of the tax and legislation complained of."); Merchs.' & Mfrs.' Nat'l Bank of Pittsburgh v. Pennsylvania, 167 U.S. 461, 463-64 (1897) ("[T]his would not invalidate the tax on other property, or give any right to challenge the law as obnoxious to the provisions of the federal constitution. . Indeed, this whole argument of a right under the federal constitution to challenge a tax law on the ground of inequality in the burdens resulting from the operation of the law is put at rest by the decision in Bell's Gap R. Co. v. Pennsylvania...." (citation omitted) (emphasis added)); Seymour v. Slide & Spur Gold Mines, 153 U.S 523, 525 (1894) ("[I]f, by so doing, any laws of the state are violated, the state is the one to challenge the act....").
88. See, e.g., Cunnius v. Reading Sch. Dist., 198 U.S. 458, 468 (1905) (White, J.) ("It will be observed that the propositions challenge the authority of the state to enact the statute which formed the basis of the proceedings...." (emphasis added)). See generally supra note 10.
89. The only quasi-exception is a single case in which another Justice quoted a Justice Brewer opinion with this formulation. See Magoun v. Ill. Trust & Sav. Bank, 170 U.S. 283, 296 (1898) (McKenna, J.) ("'Indeed, this whole argument of a right under the federal constitution to challenge the tax law on the ground of inequality in the burdens resulting from the operation of the law is put at rest by the decision in Bell's Gap R. Co. v. Pennsylvania.'" (emphasis added) (quoting Merchs.' & Mfrs.' Nat'l Bank, 167 U.S. at 464)).
90. See Standard Stock Food Co. v. Wright, 225 U.S. 540, 548 (1912) (Hughes, J.) ("The appellant challenges the constitutional validity of the statute...."). The formulation eventually caught on, of course, and there are countless subsequent examples. See e.g., Williams v. Shaffer, 385 U.S. 1037, 1039 (1967) ("The statute would be immune from the constitutional challenge."); Baker v. Carr, 369 U.S. 186, 338 (1962) ("constitutional challenge against this statute"); Williams v. New York, 337 U.S. 241, 243 (1949) ("the statutes were sustained over this constitutional challenge"); Frost v. Corp. Comm'n, 278 U.S. 515, 552 (1929) ("Nor would appellant seem to be placed in any better position to challenge the constitutionality of the statute by recourse to the rule that the possessor of a nonexclusive franchise may enjoin competition unauthorized by the state."); Herbring v. Lee, 280 U.S. 111, 117 (1929) ("T]here is no assignment of error here which challenges the validity of the statute on that ground...."); Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 296 (1921) ("A writ of error which rested solely upon the challenge of the statute so construed would have presented no substantial claim and must have been dismissed as frivolous.").
91. The phrase "facial challenge" first appeared in a Supreme Court opinion in 1971, see Lemon v. Kurtzman, 403 U.S. 602, 665 (1971) (White, J., concurring in judgment) ("Although I would also reject the facial challenge to the Pennsylvania statute, I concur in the judgment...."), and it appeared only four more times in the following decade, see Roemer v. Bd. of Pub. Works, 426 U.S. 736, 761 (1976) ("It has not been the Court's practice, in considering facial challenges to statutes of this kind, to strike them down in anticipation that particular applications may result in unconstitutional use of funds." (emphasis added)); Young v. Am. Mini Theaters, 427 U.S. 50, 94 (1976) ("Our usual practice, as the Court notes, is to entertain facial challenges based on vagueness and overbreadth by anyone subject to a statute's proscription." (emphasis added)); Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975) ("[W]hen considering a facial challenge it is necessary to proceed with caution and restraint, as invalidation may result in unnecessary interference with a state regulatory program." (emphasis added)); Alexander v. Ams. United Inc., 416 U.S. 752, 757 (1974) ("Because their objections to the Service's action included a facial challenge to the constitutionality of federal statutes...." (emphasis added)). Only in recent years has the phrase become ubiquitous. See, e.g., Gonzales v. Carhart, 540 U.S. 124, 167 (2007) ("appellees are making a facial challenge to a statute"); Washington v. Glucksberg, 521 U.S. 702, 739 (1997) ("making facial challenges to state statutes").
92. The phrase "as-applied challenge" first appeared in a Supreme Court opinion in 1974, to distinguish from the phrase "facial challenge" which had been coined three years before. See Storer v. Brown, 415 U.S. 724, 737 n.8 (1974) ("[T]he 'capable of repetition, yet evading review' doctrine, in the context of election cases, is appropriate when there are 'as applied' challenges as well as in the more typical case involving only facial attacks.").
93. Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235, 236 (1994) ("If a court holds a statute unconstitutional on its face, the state may not enforce it under any circumstances, unless an appropriate court narrows its application....")
94. Henry Paul Monaghan, Overbreadth, 1981 SUP. CT. REV. 1, 32 n.134 ("[I]f a federal statute is found facially defective it 'is void in toto, barring all further actions under it, in this, and every other case.'" (quoting United States v. Petrillo, 332 U.S. 1, 6 (1947))).
95. See, e.g., Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1191 (2008) (explaining that the Court "disfavor[s]" facial challenges because they "run contrary to the fundamental principle of judicial restraint that courts should neither 'anticipate a question of constitutional law in advance of the necessity of deciding it' nor 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied'" (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936))); United States v. Raines, 362 U.S. 17, 21 (1960) (explaining the Court's preference for as- applied challenges because it would be "undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation" (quoting Barrows v. Jackson, 346 U.S. 249, 256 (1953))).
96. United States v. Salerno, 481 U.S. 739, 745 (1987).
97. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004); United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995); City of Chicago v. Morales, 527 U.S. 41, 55 n.22 (1999) ("We need not, however, resolve the viability of Salerno's dictum...."); Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1175 (1996) (Stevens, J., respecting the denial of certiorari) ("Salerno's rigid and unwise dictum has been properly ignored in subsequent cases even outside the abortion context."); Broadrick v. Oklahoma, 413 U.S. 601 (1973); Dorf, supra note 71, at 236 ("[T]he Court has failed to apply [the Salerno] test. This discrepancy suggests that the Salerno 'no set of circumstances' principle does not accurately characterize the standard for deciding facial challenges.");
98. Marc. E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359, 374 (1998) ("In addition to the abortion cases, there have been numerous occasions in which the Court has apparently deviated from Salerno's rigor and facially invalidated statutes without imposing any burden on the litigant to demonstrate that the statute would be unconstitutional in each and every application.").
99. See Gonzales v. Carhart, 550 U.S. 124, 167-68 (2007) ("[R]espondents have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases." (emphasis added)); Ayotte v. Planned Parenthood of N. New Eng., 546 U.S. 320, 331 (2006) ("Only a few applications of New Hampshire's parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute's unconstitutional application." (emphasis added)); Stenberg v. Carhart, 530 U.S. 914, 1018- 19 (2000) (Thomas, J., dissenting) ("Even if I were willing to assume that the partial birth method of abortion is safer for some small set of women, such a conclusion would not require invalidating the Act, because this case comes to us on a facial challenge. The only question before us is whether respondent has shown that 'no set of circumstances exists under which the Act would be valid.'"); Janklow, 517 U.S. at 1175 (Stevens, J., respecting the denial of certiorari) ("Salerno's rigid and unwise dictum has been properly ignored in subsequent cases even outside the abortion context."); id. at 1178 (Scalia, J., dissenting from denial of certiorari) ("It has become questionable whether, for some reason, this clear principle [Salerno] does not apply in abortion cases. As I observed three Terms ago in a case very similar to this one, we have sent mixed signals on the question...."); Dorf, supra note 71, at 237 ("Two Justices have... argu[ed] that, at least as applied to abortion regulations, the Court's standard is one that invalidates laws deemed unconstitutional 'in a large fraction of the cases,' not necessarily in every case.").
100. E.g., Janklow, 517 U.S. at 1178-81 (Scalia, J., dissenting from denial of certiorari) ("It has become questionable whether, for some reason, this clear principle [standard for facial challenges] does not apply in abortion cases. As I observed three Terms ago in a case very similar to this one, we have sent mixed signals on the question...."); Ada v. Guam Soc. of Obstetricians and Gynecologists, 506 U.S. 1011, 1011 (1992) (Scalia, J., dissenting from the denial of certiorari) (criticizing the lower court decision for failure to adhere to the Salerno standard).
101. See Ada, 506 U.S. at 1011 (Scalia, J., dissenting from the denial of certiorari) (criticizing the lower court decision for failure to adhere to the Salerno standard); Planned Parenthood of N. New Eng. v. Heed, 390 F.3d 53, 57 (1st Cir. 2004) ("Despite the Supreme Court's clear application of the [abortion] undue burden standard in Casey and Stenberg, it has never explicitly addressed the standard's tension with Salerno."). Compare Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1458 (8th Cir. 1995) ("We believe the Court effectively overruled Salerno for facial challenges to abortion statutes."), with Barnes v. Moore, 970 F.2d 12, 14 n.2 (5th Cir. 1992) ("The Casey joint opinion may have applied a somewhat different standard in striking down the spousal notification provision of the Pennsylvania Act, not in issue here.... Nevertheless, we do not interpret Casey as having overruled, sub silentio, longstanding Supreme Court precedent governing challenges to the facial constitutionality of statutes." (citations omitted)).
102. See Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1190 (2008) ("While some Members of the Court have criticized the Salerno formulation, all agree that a facial challenge must fail where the statute has a 'plainly legitimate sweep.'... Washington's primary system survives under either standard...." (internal citations omitted)).
103. Henry P. Monaghan, Harmless Error and the Valid Rule Requirement, 1989 SUP. CT. REV. 195;
104. Monaghan, supra note 71.
105. Matthew D. Adler & Michael C. Dorf, Constitutional Existence Conditions and Judicial Review, 89 VA. L. REV. 1105 (2003);
106. Dorf, supra note 71.
107. Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998) [hereinafter Adler, Rights Against Rules];
108. Matthew D. Adler, Rights, Rules, and the Structure of Constitutional Adjudication: A Response to Professor Fallon, 113 HARV. L. REV. 1371 (2000) [hereinafter Adler, Constitutional Adjudication]; Adler & Dorf, supra note 80.
109. See Isserles, supra note 74.
110. Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 HARV. L. REV. 1321 (2000) [hereinafter Fallon, As-Applied and Facial Challenges];
111. Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 YALE L.J. 853 (1991) [hereinafter Fallon, Overbreadth].
112. The only possible exception is if a legislative violation of the Constitution can inhere in the motive for the legislative action rather than the text. The Court has occasionally suggested as much, although the sounder view is that an impermissible legislative motive cannot render an otherwise permissible act unconstitutional: [I]f a government-enacted rule of conduct is constitutionally inoffensive both on its face and as applied to the particular individual challenging it, the fact that the rule would not have been promulgated (or the practice put in place) but for the enacting body's desire to achieve a constitutionally forbidden result tells us nothing more than that the government body engaged in an unsuccessful attempt to violate the Constitution. So too, the fact that the rule would not have been promulgated or the practice established but for the enacting body's consideration of a factor the Constitution tells it never to consider-if there are such factors-hardly suffices to render the rule of conduct promulgated, or the practice put in place, constitutionally void.
113. Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1, 23 (footnote omitted).
114. United States v. Butler, 297 U.S. 1, 62 (1936).
115. U.S. CONST. amend. I.
116. 1 Stat. 596 (1798).
117. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273-76 (1964); Thomas Jefferson, Kentucky Resolutions of 1798 and 1799, reprinted in 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, supra note 34, at 540, 541 [hereinafter Jefferson, Kentucky Resolutions] ("That therefore the act of the Congress of the United States, passed on the 14th of July, 1798, entitled 'An Act in Addition to the Act entitled "An Act for the Punishment of certain Crimes against the United States,"'[the Sedition Act] which does abridge the freedom of the press, is not law, but is altogether void, and of no force.")
118. James Madison, Report on Virginia Resolutions (1800), reprinted in 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, supra note 34, at 546, 564 ("[E]ven if [Article III] could be strained [to provide jurisdiction for criminal sedition], it could have no effect in justifying the Sedition Act, which is an act of legislative, and not of judicial power...." (emphasis added)).
119. See Isserles, supra note 74, at 363-64 ("[A] 'valid rule facial challenge' . . predicates facial invalidity on a constitutional defect inhering in the terms of the statute itself, independent of the statute's application to particular cases."); id. at 365 ("The term 'facial challenge' suggests a constitutional challenge asserting constitutional invalidity 'on the face' of the statute-that is, some constitutional flaw evident in the statutory terms themselves.").
120. See Sullivan, 376 U.S. at 279-80 (establishing that the First Amendment permits civil lawsuits against public officials for "defamatory falsehood[s] relating to [their] official conduct... made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not").
121. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391, 379-80 & n.1 (1992) (holding a hate-speech ordinance "facially unconstitutional" under the First Amendment, and reversing a conviction thereunder even though the defendant's "conduct could have been punished under any of a number of laws," including laws banning "terroristic threats," and even though defendant's expression constituted fighting words); Texas v. Johnson, 491 U.S. 397, 406-07 (1989); see also Adler, Rights Against Rules, supra note 81; Adler, Constitutional Adjudication, supra note 81.
122. See Jefferson, Kentucky Resolutions, supra note 88, at 541.
123. Letter from Thomas Jefferson to Mrs. Adams (July 22, 1804), in 4 THE WRITINGS OF THOMAS JEFFERSON 555, 555-56 (H.A. Washington ed., 1854) (emphasis added).
124. See, e.g., United States v. Raines, 362 U.S. 17, 22-23 (1960).
125. United States v. Butler, 297 U.S. 1, 62 (1936) (emphasis added).
126. Fritz W. Scharpf, Judicial Review and the Political Question: A Functional Analysis, 75 YALE L.J. 517, 532 (1966).
127. U.S. CONST. art. VI, cl. 3.
128. See, e.g., Rostker v. Goldberg, 453 U.S. 57, 64 (1981) ("The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States."); United States v. Nixon, 418 U.S. 683, 703 (1974) ("In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others.");
129. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2088 n.7 (2002) ("Each branch has an independent obligation to read the Constitution in the best way it knows how.").
130. See FALLON ET AL., supra note 61, at 70 ("[D]oes Congress in voting to enact a bill . . typically make or purport to make... a [constitutionality] determination? With respect to the validity of the statute as applied in particular situations, how could they?"); Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1868, 1909 (2005).
131. See cases cited supra note 72.
132. See cases cited supra note 72.
133. Cf. United States v. Salerno, 481 U.S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.").
134. See Monaghan, Overbreadth, supra note 71, at 5 ("[An 'as-applied'] challenge is wholly fact dependent: Do the determinative facts shown by the evidence fall on the protected side of the applicable rule of constitutional privilege?").
135. See Marshall v. Barlow's, Inc., 436 U.S. 307 (1978).
136. U.S. CONST. amend. IV.
137. United States v. Leon, 468 U.S. 897, 906 (1984) (emphasis added).
138. Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 772-73 (1994).
139. 436 U.S. at 325 (emphasis added). 110. Compare U.S. CONST. amend. I.
140. See CONG. RESEARCH SERV., THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION 2117, 2121-22, 2146 (2004 Supp.), available at http://www.gpoaccess.gov/constitution/pdf2002/supplemental.pdf. The only other possible example appears to be Boyd v. United States, 116 U.S. 616 (1886), but that case-no model of clarity-expressly conflates the Fourth and Fifth Amendments, and it does not clearly state which one forbade the making of the law at issue. See 116 U.S. at 630 ("[T]he Fourth and Fifth Amendments run almost into each other.").
141. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 391 (1971) (elaborating the "Fourth Amendment's protection against unreasonable searches and seizures by federal agents" (emphasis added)). Admittedly, another interpretation of the first clause of the Fourth Amendment is possible. Returning to the text, one could emphasize that it does not literally guarantee a right of individuals to be free from particular unreasonable searches but rather a "right of the people to be secure... against unreasonable searches and seizures." U.S. CONST. amend. IV (emphasis added). One could argue that this right is not actually violated by a single, isolated, unreasonable, FBI search, because one search does not render the people insecure. Rather, on this theory, the Clause is violated only by a systemic, legislative threat of such searches, for it is the general prospect of such searches that would render the people insecure.
142. United States v. Leon, 468 U.S. 897, 906 (1984) (emphasis added).
143. U.S. CONST. art. II, § 3 (emphasis added).
144. One treatise alone seems to understand this point, but its brief discussion has been widely ignored by courts and scholars. See 1 NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 2:6, at 44 (6th ed. 2002) ("Sometimes it is said of a statute which is not void 'on its face' that it nevertheless is invalid as applied. This is a malapropism, however, for a provision which is only invalid as applied in the facts of a particular case is possibly capable of valid application in another fact situation. In reality, it is only the implementing action which purports to apply the legislation and not the provision itself which is invalid in such cases." (citations omitted)). This is exactly right, but this crucial point has been lost on the many first-rate scholars who have written about "facial" and "as-applied" challenges. Not one of the leading articles on this topic cites to this passage. Indeed, amazingly, not a single article available on Westlaw, on any topic, cites to this passage.
145. See Monaghan, supra note 79.
146. Monaghan, supra note 71, at 9.
147. Monaghan, supra note 79, at 196.
148. Adler, Rights Against Rules, supra note 81; Adler, Constitutional Adjudication, supra note 81.
149. Adler's first article on this point seemed to say that all constitutional rights are rights against rules. See, e.g., Adler, Rights Against Rules, supra note 81, at 3 ("Constitutional rights are rights against rules."). His second article, however, tempered the claim. See Adler, Constitutional Adjudication, supra note 81, at 1375 ("Rights Against Rules, read as a whole, does not present the rule-dependence claim as a universal one- indeed, I stated explicitly that my focus in the article was on the subset of doctrines that furnish substantive challenges to conduct-regulating rules-but some of my language was sloppy and did suggest, incorrectly, that rule-dependence was universally true." (citations omitted)). This second formulation comes closer to the mark. But neither article identifies the link between rights against rules and the subjects of the Constitution. Some rights are rights against rules precisely because some constitutional provisions are restrictions on legislative action.
150. Adler & Dorf, supra note 80, at 1119 ("A constitutional provision states an 'existence condition' for some category of nonconstitutional law (federal statute, federal common law, federal regulation, state law, and so forth) if it states a necessary condition for any proposition to fall within that category. A constitutional provision states an 'application condition' for nonconstitutional law if the provision limits the legal force of a proposition of nonconstitutional law by some means other than vitiating the status of that proposition as law." (citation omitted)).
151. Adler & Dorf, supra note 80, at 1166-67 ("[W]e do not mean here to take a position on which rights-conferring constitutional provisions and doctrines are best read as existence conditions, which are best read as application conditions, and which are best read as existence conditions in some circumstances and application conditions in others."). Adler and Dorf grasp that attention to the subjects and objects of constitutional provisions might resolve the question. Id. at 1168 ("The First Amendment takes the form of a prohibition on lawmaking by Congress, but other provisions establish (or recognize) 'rights.'... Are these distinctions important? A sufficiently ingenious and hardworking constitutional archeologist such as Professor Akhil Amar can find hidden meanings in these particular word choices...."). However, they decline to employ this method. Id. at 1121 ("[N]othing in our distinction between existence and application conditions entails a textualist approach to constitutional interpretation or ontology. We use the term 'constitutional provision' for stylistic reasons, but by this we simply mean some norm or principle or, more generally, some proposition of constitutional law.").
152. See Fallon, As-Applied and Facial Challenges, supra note 83, at 1324 ("[T]he availability of facial challenges varies on a doctrine-by-doctrine basis and is a function of the applicable substantive tests of constitutional validity."); see also Fallon, Overbreadth, supra note 83.
153. Blanchette v. Conn. Gen. Ins. Corp. (Regional Rail Reorganization Act Cases), 419 U.S. 102, 140 (1974) (emphasis added).
154. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 733 (1998); see also Scharpf, supra note 96, at 532.
155. Ohio Forestry Ass'n, 523 U.S. at 733.
156. Texas v. United States, 523 U.S. 296, 300 (1998) (quoting 13A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 3532 (2d ed. 1984)); Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480 (1990) (same); Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (same).
157. See O'Shea v. Littleton, 414 U.S. 488, 496 (1974) (holding that a challenge to discriminatory criminal enforcement by executive officials and adjudication by judicial officials is unripe, because it "rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to... proceedings... before petitioners. Important to this assessment is the absence of allegations that any relevant criminal statute... is unconstitutional" (emphasis added)).
158. Some scholars have intuited that First Amendment challenges ripen earlier than most, but they have not grounded that intuition in the First Amendment's distinctive who and when, which derive from its distinctive subject.
159. Richard H. Fallon, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 227 n.5 (5th ed. 2009); Note, The First Amendment Overbreadth Doctrine, 83 HARV. L. REV. 844, 852 (1970) [hereinafter Harvard Note] ("Rather than serving to postpone and limit the scope of judicial review, [the First Amendment overbreadth doctrine] asks that review be hastened and broadened.... The specific rationale of overbreadth scrutiny rests on a recognition that the actual application of overbroad laws against privileged activity is not their only vice."); id. at 864 ("Lack of dependence on a particular fact situation renders an overbreadth claim 'ripe' almost whenever asserted."). See generally Part IV, infra.
160. Flast v. Cohen, 392 U.S. 83, 99 (1968) (emphasis added).
161. Bennett v. Spear, 520 U.S. 154, 162 (1997) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), and Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471-72 (1982)).
162. Ryan Guilds, Comment, A Jurisprudence of Doubt: Generalized Grievances as a Limitation to Federal Court Access, 74 N.C. L. REV. 1863, 1863 (1996); see also Flast, 392 U.S. at 129 (Harlan, J., dissenting) ("constitutional standing [is] a word game played by secret rules");
163. Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 15-16 (1984) ("Regrettably, it long since has become 'commonplace to begin any discussion of the doctrine of standing by decrying the confusion which persists in this area of the law.' This conventional introduction remains appropriate today." (citation omitted));
164. William A. Fletcher, The Structure of Standing, 98 YALE L.J. 221, 221 (1988) ("The structure of standing law in the federal courts has long been criticized as incoherent.").
165. Fletcher, supra note 134, at 223. 136. Id. at 224; see also id. at 223 n.18.
166. Cf. McKinney v. Pate, 20 F.3d 1550, 1557 n.9 (11th Cir. 1994) ("[I]t is crucial to note the distinction between 'legislative' acts and . executive' acts. Executive acts characteristically apply to a limited number of persons (and often to only one person)... Legislative acts, on the other hand, generally apply to a larger segment of-if not all of- society." (citation omitted)).
167. See Monaghan, supra note 45.
168. This suggests that ordinary severability doctrine should not apply when Congress (or a state legislature) is the subject of the constitutional claim. Cf. Dorf, supra note 71, at 261 (stating that the Court "correctly recognizes this overbreadth doctrine" is not subject to the Salerno presumption of severability, and that the presumption should also not apply to laws infringing on other "fundamental rights"). Future work will analyze severability implications in detail. See NICHOLAS QUINN ROSENKRANZ, THE SUBJECTS OF THE CONSTITUTION (Oxford University Press, forthcoming 2011).
169. U.S. CONST. art. VI, cl. 2 (emphasis added).
170. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) ("[I]n declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void...." (emphasis omitted)); Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383, 401 (5th Cir. 2008) ("If that act... is invalid... the act is void ab initio, and it is as though Congress had not acted at all.");
171. Edward S. Corwin, The "Higher Law" Background of American Constitutional Law, 42 HARV. L. REV. 365, 371-72 (1929) ("When the Supreme Court of the United States pronounces an act of Congress 'void,' it ordinarily means void ab initio, because [it was] beyond the power of Congress to enact....").
172. See, e.g., City of Littleton v. Z.J. Gifts D-4, 541 U.S. 774, 788 (2004) (Scalia, J., concurring) ("subject to facial invalidation"); Virginia v. Hicks, 539 U.S. 113, 120 (2003) ("applying the 'strong medicine' of overbreadth invalidation"); Fed. Election Comm'n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 456 n.17 (2001) ("Overbreadth must be substantial to trigger facial invalidation...." (citing Broadrick v. Oklahoma, 413 U.S. 601 (1973))); L.A. Police Dept. v. United Reporting Pub. Corp., 528 U.S. 32, 37 (1999) ("The Court of Appeals affirmed the District Court's facial invalidation."). 143. Marbury, 5 U.S. at 177 ("[A] legislative act contrary to the constitution is not law ."); see also Chi., Indianapolis, & Louisville Ry. Co. v. Hackett, 228 U.S. 559, 566 (1913) ("That act was therefore as inoperative as if it had never been passed, for an unconstitutional act is not a law, and can neither confer a right or immunity nor operate to supersede any existing valid law."); Norton v. Shelby County, 118 U.S. 425, 442 (1886) ("An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."); McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 423 (1819) ("Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." (emphasis added)); THE FEDERALIST No. 78 (Alexander Hamilton), supra note 10, at 465 ("By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.");
173. Frank H. Easterbrook, Presidential Review, 40 CASE W. RES. L. REV. 905, 920 (1990) ("The Supreme Court has said more times than one can count that unconstitutional statutes are 'no law at all.'").
174. See generally Easterbrook, supra note 143 (arguing that the President must make independent constitutional judgments and may use his constitutional power to effectuate those judgments); cf. Issues Raised by Foreign Relations Authorization Bill, 14 Op. Off. Legal Counsel 37, 47 (1990) ("[T]he Take Care Clause does not compel the President to execute unconstitutional statutes. An unconstitutional statute is not a law.").
175. Letter from Thomas Jefferson to Mrs. Adams, supra note 93, at 556 (emphasis added).
176. See U.S. CONST. art. II, § 3 ("[The President] shall take Care that the Laws be faithfully executed...." (emphasis added)).
177. See Ada v. Guam Soc. of Obstetricians and Gynecologists, 506 U.S. 1011, 1012 (1992) (Scalia, J., dissenting from the denial of certiorari) ("The practical effect of holding a statute unconstitutional 'as applied' is to prevent its future application in a similar context, but not to render it utterly inoperative."); Marbury, 5 U.S. at 170-73 ("If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law.... It is true that the mandamus, now moved for, is not for the performance of an act expressly enjoined by statute.... This difference is not considered as affecting the case...This, then, is a plain case for a mandamus....").
178. See Monaghan, supra note 45.
179. Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).
180. Broadrick v. Oklahoma, 413 U.S.at 612 (quoting Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)); see also Virginia v. Hicks, 539 U.S. 113, 118-20 (2003) ("The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges. The showing that a law punishes a 'substantial' amount of protected free speech, 'judged in relation to the statute's plainly legitimate sweep,' suffices to invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.'" (quoting Broadrick, 413 U.S. at 615.)); City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) ("[T]he Court did recognize an exception to [standing] for laws that are written so broadly that they may inhibit the constitutionally protected speech of third parties."); Fallon, As-Applied and Facial Challenges, supra note 83, at 1321-22 ("[O]verbreadth doctrine was viewed as infringing the usual third-party standing rule that one party may not assert the rights of another."); Isserles, supra note 74, at 369 ("[An] exception to the rule barring third-party standing is the First Amendment overbreadth doctrine.").
181. See, e.g., Fallon, supra note 83; Isserles, supra note 74; Monaghan, supra note 71. 152. But see Dorf, supra note 71, at 264-77 (documenting and justifying overbreadth analysis outside the First Amendment context).
182. See United States v. Salerno, 481 U.S. 739, 745 (1987) ("[W]e have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."); Schall v. Martin, 467 U.S. 253, 268-69 n.18 (1984) ("[O]utside the limited First Amendment context, a criminal statute may not be attacked as overbroad.").
183. Broadrick, 413 U.S. at 612.
184. See Monaghan, supra note 79, at 209-10 ("[T]he First Amendment generally does forbid harmless error analysis in overbreadth cases." (citing Gooding v. Wilson, 405 U.S. 518, 521 (1972))).
185. Dorf, supra note 71, at 261 (stating that the Court "correctly recognizes this overbreadth doctrine" is not subject to the Salerno presumption of severability, and that the presumption should also not apply to laws infringing on other "fundamental rights").
186. Alexander Meiklejohn, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 26 (3d ed. 2008) ("The principle of the freedom of speech springs from the necessities of... self-government."); id. at 69 ("[I]t is that authority of these truth-seeking activities which the First Amendment recognizes as uniquely significant when it says that the freedom of public discussion shall never be abridged. It is the failure to recognize the uniqueness of that authority which has led the Supreme Court to break down the difference between the First Amendment and the Fifth."); id. at 91 ("The unabridged freedom of public discussion is the rock on which our government stands."). But see Dorf, supra note 71, at 264-65 (criticizing the normative premise underlying the limitation of overbreadth challenges to the First Amendment) ("To treat some democracy-preserving constitutional provisions as privileged contravenes the Constitution's own architecture." (citing LAURENCE H. TRIBE & MICHAEL C. DORF, ON READING THE CONSTITUTION 25-27 (1991)));
187. John Christopher Ford, The Casey Standard for Evaluating Facial Attacks on Abortion Statutes, 95 MICH. L. REV. 1443, 1458 (1997) (rejecting the normative premise that First Amendment rights are more important than other constitutional rights, and therefore rejecting the argument that this normative premise justifies limiting the overbreadth doctrine to the First Amendment).
188. Fallon, Overbreadth, supra note 83, at 867.
189. Virginia v. Hicks, 539 U.S. 113, 119 (2003) ("We have provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or 'chill' constitutionally protected speech-especially when the overbroad statute imposes criminal sanctions."); Ashcroft v. Free Speech Coal., 535 U.S. 234, 237 (2002) ("The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process."); Bates v. State Bar of Ariz., 433 U.S 350, 380 (1977) ("The reason for the special rule in First Amendment cases is apparent: An overbroad statute might serve to chill protected speech. First Amendment interests are fragile interests, and a person who contemplates protected activity might be discouraged by the in terrorem effect of the statute."); Broadrick, 413 U.S. at 630 (1973) (Brennan, J., dissenting) ("[The Court] recognize[s] that overbreadth review is a necessary means of preventing a 'chilling effect' on protected expression.").
190. Broadrick, 413 U.S. at 611 (majority opinion).
191. See supra note 157.
192. U.S. CONST. amend. I.
193. Jay S. Bybee, Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment, 75 TUL. L. REV. 251, 326 (2000) ("[T]he First Amendment applies, by its terms, to Congress and not to the President or the courts... [This] may suggest nothing more than that the Framers did not fear the power of the President or the federal courts. Or, it may suggest that the Framers' principal concern was legislative prior restraints.");
194. Mark P. Denbeaux, The First Word of the First Amendment, 80 NW. U. L. REV. 1156, 1158 (1986) ("Article I, section 1 of the Constitution states: 'All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.' If this is the 'Congress' intended by the framers of the Bill of Rights, then the first amendment clearly prohibits the legislative branch of the federal government from making laws that abridge freedom of speech and press and just as clearly places no prohibitions upon either the judicial or executive branches."); cf. John Harrison, The Free Exercise Clause as a Rule About Rules, 15 HARV. J. L. & PUB. POL'Y 169, 170 (1992) ("[T]he question under the Free Exercise Clause has to do with the law in the abstract-with the content of the rule it adopts-and not with the law's application in any particular case. If the Free Exercise Clause means what it says, it prohibits the enactment of certain kinds of laws. Because the Clause is a rule for legislatures, we can ask the right questions under the Clause by putting ourselves in the position of the legislature and asking whether the statute in Smith was a law prohibiting the free exercise of religion." (emphasis added)).
195. See Akhil Reed Amar, Architexture, 77 IND. L.J. 671, 678 (2002) ("[T]he first time the Court struck down an act of Congress on First Amendment grounds was in 1965." (citing Lamont v. Postmaster Gen., 381 U.S. 301, 306 (1965))).
196. See Lamont, 381 U.S. at 306.
197. See N.Y. Times Co. v. United States, 403 U.S. 713, 718-19 (1971) (assuming without discussion that the First Amendment applies to the Executive and the Judiciary, despite its textual limitation to "Congress");
198. Philip Bobbitt, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 101-03 (1982) ("In Pentagon Papers, no underlying congressional legislation was alleged to specifically authorize the President to prevent publication by the New York Times of various secret reports on the Vietnam War. Indeed, as Justice Marshall pointed out, 'on at least two occasions Congress [had] refused to enact legislation that would have... given the President the power that he [sought] in [that] case.' And yet the Court applied conventional First Amendment analysis despite the clear terms of that Amendment limiting the powers of Congress. There is no discussion of this point, which is something of a triumph of avoidance since the case evoked nine opinions from the Justices."); see also Citizens United v. FEC, No. 08-205, slip op at 9 (U.S. Jan. 21, 2010) ("Courts, too, are bound by the First Amendment.").
199. Denbeaux, supra note 163, at 1156 (describing the "most popular" view that the First Amendment's limitation to Congress "was an unaccountable slip of the pen by the Founding Fathers, and that no meaning could be attached to it"); see also AMAR, supra note 12, at 316;
200. Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free- Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1240 n.60 (1995) ("The First Amendment explicitly limits only Congress, not other branches of the federal government, yet it has been understood to restrict the executive and judicial branches as well."); cf. Amar & Katyal, supra note 38, at 706 ("[Despite its textual limitation to 'Congress'], the Speech or Debate Clause... is best read not to bar analogous immunities of coordinate branches but rather, if anything, to invite them. And the same holds true... for its companion, the Article I, Section 6 Arrest Clause.").
201. Gary Lawson & Guy Seidman, THE CONSTITUTION OF EMPIRE 42-43 (2004) ("Modern law, of course, applies the First Amendment to the President, the courts, and the states, and a fortiori to the federal treaty-making authority, but that is a textually indefensible maneuver. To read the First Amendment to apply to entities other than Congress is simply to abandon the enterprise of textual interpretation.... [T]he First Amendment by its terms does not apply to executive and judicial action.").
202. See, e.g., City of Erie v. Pap's A.M., 529 U.S. 277 (2000) (analyzing nude dancing as "speech").
203. See, e.g., Leathers v. Medlock, 499 U.S. 439, 444 (1991) ("Cable television provides to its subscribers news, information, and entertainment. It is engaged in 'speech' under the First Amendment, and is, in much of its operation, part of the 'press.'"); Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 161 (1973) (Douglas, J., concurring) ("TV and radio, as well as the more conventional methods for disseminating news, are all included in the concept of 'press' as used in the First Amendment...."); United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948) ("[M]oving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.").
204. See, e.g., Torcaso v. Watkins, 367 U.S. 488, 495 (1961) (holding that a refusal to declare a belief in God is a form of religious expression protected by the First Amendment); Davis v. Beason, 133 U.S. 333, 342 (1890) (holding that "religion" in the First Amendment refers only to one's belief in a deity, rather than the "cultus or form of worship of a particular sect."); cf. Welsh v. United States, 398 U.S. 333, 340 (1970) (plurality opinion) (holding that defendant's system of beliefs, which did not recognize a deity qualified as a "religion" or its functional equivalent under the selective service statute); United States v. Seeger, 380 U.S. 163, 187-88 (1965) (holding that defendant's belief in "some power manifest in nature" was sufficiently analogous to belief in a Supreme Being to qualify as a religion under the selective service statute).
205. U.S. CONST. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives."); see Denbeaux, supra note 163.
206. Cf. Nomination of Robert H. Bork to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 248-49 (1987) (statement of Judge Robert H. Bork) (comparing the Ninth Amendment to an indecipherable "ink blot").
207. Cf. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448 (2002) (Kennedy, J., concurring) ("[W]hether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based.").
208. See sources cited supra notes 141 & 143.
209. See Monaghan, supra note 71, at 4 ("[A]n overbreadth litigant [does not] invoke the rights of third parties; as 'a theoretical matter the [overbreadth] claimant is asserting his own right not to be burdened by an unconstitutional rule of law, though naturally the claim is not one which depends on the privileged character of his own conduct.'" (quoting Harvard Note, supra note 131, at 848)); see also Dorf, supra note 71, at 242-49 (discussing additional justifications for the valid rule requirement); Fletcher, supra note 134, at 244 ("Someone who makes an overbreadth challenge to a statute... is not directly asserting [an]other person's rights to engage in protected conduct; rather, she is asserting her right to be free from control by an invalid statute."); Isserles, supra note 74, at 367 ("One difficulty with the third-party standing bar is its apparent inconsistency with a litigant's right to be judged in accordance with a constitutionally valid rule of law. Thus, the overbreadth challenger might claim that he or she is asserting a personal right to be free from prosecution because an overbroad law that permits some unconstitutional applications cannot be enforced against anyone." (emphasis added)).
210. Monaghan, supra note 71, at 9.
211. See Dorf, supra note 71, at 248 ("The Constitution does not create, in so many words, an individual right to be judged only by a constitutional law. But the Constitution certainly forbids a court from enforcing an unconstitutional law.").
212. See U.S. CONST. art. VI; sources cited supra notes 141 & 143.
213. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (citation omitted) (emphasis added); see also Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940) ("It is not merely the sporadic abuse of power by the censor but the pervasive threat inherent in its very existence that constitutes the danger to freedom of discussion. One who might have had a license for the asking may therefore call into question the whole scheme of licensing when he is prosecuted for failure to procure it. A like threat is inherent in a penal statute, like that in question here, which does not aim specifically at evils within the allowable area of state control but, on the contrary, sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute, which readily lends itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure, results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview." (citations and footnotes omitted)); sources cited supra note 150.
214. Of course, Broadrick v. Oklahoma is a state case, but for ease of exposition this Subpart focuses on federal First Amendment cases. The subjects of the Fourteenth Amendment and incorporation of the Bill of Rights will be discussed in the sequel, The Objects of the Constitution.
215. Broadrick, 413 U.S. at 612.
216. Hein v. Freedom From Religion Found., Inc., 551 U.S. 587, 599 (2007) (plurality opinion); see also Frothingham v. Mellon, 262 U.S. 447, 487 (1923) ("[A taxpayer's] interest in the moneys of the Treasury-partly realized from taxation and partly from other sources-is shared with millions of others; is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.").
217. Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74 (1992).
218. Hein, 551 U.S. at 600 (plurality opinion) (citing Mellon, 262 U.S. at 489).
219. Hein, 551 U.S. at 600 (plurality opinion) (citing Mellon, 262 U.S. at 604 ("Flast 'limited taxpayer standing to challenges directed only [at] exercises of congressional power' under the Taxing and Spending Clause." (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 479 (1982)); cf. id. at 608-09 ("In short, this case falls outside the narrow exception that Flast created to the general rule against taxpayer standing established in [Mellon]. Because the expenditures that respondents challenge were not expressly authorized or mandated by any specific congressional enactment, respondents' lawsuit is not directed at an exercise of congressional power and thus lacks the requisite logical nexus between taxpayer status and the type of legislative enactment attacked." (internal citations omitted)).
220. Flast v. Cohen, 392 U.S. 83, 102-03 (1968).
221. See Hein, 551 U.S. at 608-09 (no taxpayer standing to challenge Executive Branch discretionary spending as violating the Establishment Clause); id. at 609-10 ("[N]o taxpayer standing to sue under Free Exercise Clause of First Amendment ." (characterizing Tilton v. Richardson, 403 U.S. 672, 689 (1971))); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 343-44 (2006) (no taxpayer standing to sue under Commerce Clause); Valley Forge, 454 U.S. at 479-82 (no taxpayer standing to challenge Executive Branch action taken pursuant to Property Clause of Art. IV); Schlesinger v. Reservists Comm., 418 U.S. 208, 228 (1974) (no taxpayer standing to sue under Incompatibility Clause of Art. I); United States v. Richardson, 418 U.S. 166, 175 (1974) (no taxpayer standing to sue under Statement and Account Clause of Art. I).
222. Fletcher, supra note 134, at 266. 191. Id. at 270.
223. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
224. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 773 (1995) (O'Connor, J., concurring) ("A government statement 'that religion or a particular religious belief is favored or preferred' violates the prohibition against establishment of religion because such '[e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'" (alternation in original) (emphasis added) (citations omitted) (quoting County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 593 (1989); Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring))); Allegheny, 492 U.S. at 597 (plurality opinion) ("[W]hen evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether 'the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.'" (emphasis added) (quoting Sch. Dist. v. Ball, 473 U.S. 373, 390 (1985))); id. at 593-94 (majority opinion) ("The [Establishment] Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief...." (emphasis added)).
225. Lemon v. Kurtzman, 403 U.S. 602, 665 (1971) (White, J., concurring) ("Although I would also reject the facial challenge to the Pennsylvania statute, I concur in the judgment....").
226. See Fletcher, supra note 134, at 228 ("Mrs. Flast's interest in the dispute was not markedly different from that of most of the rest of the population.... Yet the Court granted standing because it sensed, without being able to articulate it fully, that a broad grant of standing was an appropriate mechanism to implement the establishment clause interest at stake.").
227. 551 U.S. 587 (2007).
228. Id. at 608-09 (plurality opinion); see also Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 479 (1982) (denying taxpayer standing because "the source of the[] complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property. Flast limited taxpayer standing to challenges directed 'only [at] exercises of congressional power.'" (second alteration in original) (quoting Flast v. Cohen, 392 U.S. 83, 102 (1968))); Flast, 392 U.S. at 102 ("[A] taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, § 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute." (emphases added)).
229. Hein, 551 U.S. at 618 (Scalia, J., concurring).
230. Hein, 551 U.S. at 633.
231. Hein, 551 U.S. at 628.
232. Hein, 551 U.S. at 637 (Souter, J., dissenting); cf. Fletcher, supra note 134, at 268 (finding the same distinction, drawn in Valley Forge, 454 U.S. at 479, to be "[nothing] more than an intellectually disingenuous way to undercut Flast and to return to the status quo ante").
233. U.S. CONST. amend. I (emphasis added).
234. See Flast v. Cohen, 392 U.S. 83, 115-16 (1968) (Fortas, J., concurring) ("Perhaps the vital interest of a citizen in the establishment issue, without reference to his taxpayer's status, would be acceptable as a basis for this challenge."); Fletcher, supra note 134, at 269 ("I would prefer to read the establishment clause as protecting all members of our society, not merely taxpayers, from excessive entanglement of church and state... [A] member of the society should not have to show that he pays federal taxes to invoke judicial enforcement of the clause.").
235. See supra note 166.
236. Cf. Fletcher, supra note 134, at 223-24 ("[S]tanding should simply be a question on the merits of plaintiff's claim.... If a duty is constitutional, the constitutional clause should be seen not only as the source of the duty, but also as the primary description of those entitled to enforce it.").
237. Hein, 551 U.S. at 610-12 (plurality opinion).
238. U.S. CONST. amend. I.
239. See also Laird v. Tatum, 408 U.S. 1, 15 (1972) (finding nonjusticiable a First Amendment challenge to executive action-U.S. Army surveillance-for fear that such cases "would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action").
240. Cf. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833) (holding that the first eight amendments do not bind state actors);
241. Akhil Reed Amar, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 32-33 (1998) (explaining that the Framers intended the Establishment Clause to prevent not only the federal establishment of religion, but the federal disestablishment of existing religious establishments in many of the states, like Congregationalism in Massachusetts).
242. See Fletcher, supra note 134, at 233 ("[I]t impedes rather than assists analysis to insist that 'case or controversy' under Article III requires as a minimum threshold an 'injury in fact'... or a 'distinct and palpable injury'.... If such a requirement of injury is a constitutional minimum that Congress cannot remove by statute, the Court is either insisting on something that can have no meaning beyond a requirement that plaintiff be truthful about the injury she is claiming to suffer, or the Court is sub silentio inserting into its ostensibly factual requirement of injury a normative structure of what constitutes judicially cognizable injury that Congress is forbidden to change."); id. ("[Nature and degree of injury] must be seen as part of the question of the nature and scope of the substantive legal right on which plaintiff relies."); see also Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163, 188-89 (1992) ("In classifying some harms as injuries in fact and other harms as purely ideological, courts must inevitably rely on some standard that is normatively laden and independent of facts." (footnote omitted)).
243. Richard Fallon came closest to seeing this point in his superb article, Fallon, As- Applied and Facial Challenges, supra note 83, at 1324 ("[T]he availability of facial challenges varies on a doctrine-by-doctrine basis and is a function of the applicable substantive tests of constitutional validity." (emphasis omitted)). He is the only one to fully grasp that the "facial"/"as-applied" dichotomy is inextricably linked to substantive doctrinal tests. But, as a doctrinalist, he starts with substantive constitutional doctrine, which he takes as given, and from there he attempts to derive guidelines for the "facial"/"as-applied" dichotomy. The model presented here starts one step earlier, with constitutional text and constitutional subjects. And from there, it reveals that the inferences run in the opposite direction. The text reveals the subject of each clause, legislative or executive, which inherently determines the "facial" or "as-applied" structure of judicial review. And that structure, in turn, powerfully informs the proper substantive doctrinal test.
244. U.S. CONST. amend. I (emphasis added).
245. 494 U.S. 872, 878-79 (1990) ("We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition."). Some commentators have read the Court's opinion in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), as modifying the Smith rule to permit invalidation of facially neutral laws based on legislative history and extrinsic evidence of invidious religious motivation.
246. Stephen L. Carter, Comment, The Resurrection of Religious Freedom?, 107 HARV. L. REV. 118, 128-29 (1993). But Lukumi is better read merely to apply, rather than amend, the general rule of Smith. See Lukumi, 508 U.S. at 557-59 (Scalia, J., concurring);
247. R. Ted Cruz, Recent Development, Animal Sacrifice and Equal Protection Free Exercise: Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 17 HARV. J.L. & PUB. POL'Y 262, 263 (1994) ("Rather than modifying or abandoning Smith, the Court utilized the Smith test to strike down the laws as violative of free exercise."); cf. Laurence H. Tribe, supra note 84 ("[I]f a government-enacted rule of conduct is constitutionally inoffensive both on its face and as applied to the particular individual challenging it, the fact that the rule would not have been promulgated (or the practice put in place) but for the enacting body's desire to achieve a constitutionally forbidden result tells us nothing more than that the government body engaged in an unsuccessful attempt to violate the Constitution. So too, the fact that the rule would not have been promulgated or the practice established but for the enacting body's consideration of a factor the Constitution tells it never to consider-if there are such factors- hardly suffices to render the rule of conduct promulgated, or the practice put in place, constitutionally void." (emphasis omitted) (footnote omitted)).
248. Chief Justice Rehnquist and Justices White, Stevens, and Kennedy joined Justice Scalia's majority opinion. Smith, 494 U.S. at 873. Justice O'Connor concurred in the judgment, but expressly disputed the principle relied upon by the majority. Id. at 893 (O'Connor, J., concurring) ("Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause.").
249. See City of Boerne v. Flores, 521 U.S. 507, 544-45 (1997) (O'Connor, J., dissenting) ("I remain of the view that Smith was wrongly decided, and I would use this case to reexamine the Court's holding there."); id. at 566 (Breyer, J., dissenting) ("I agree with Justice O'Connor that the Court should direct the parties to brief the question whether [Smith] was correctly decided...."); Lukumi, 508 U.S. at 559 (Souter, J., concurring) ("I have doubts about whether the Smith rule merits adherence.").
250. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 HARV. L. REV. 1409, 1420 (1990);
251. Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 U. CHI. L. REV. 1109, 1111, 1116-19 (1990) (decrying Smith's lack of attention to history and outlining an originalist argument against Smith)
252. Michael W. McConnell, Should Congress Pass Legislation Restoring the Broader Interpretation of Free Exercise of Religion?, 15 HARV. J.L. & PUB. POL'Y 181, 185-86 (1992) (outlining a historical argument against Smith).
253. Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 GEO. WASH. L. REV. 915 (1992) (offering a point-by-point response to McConnell's arguments and proposing an originalist justification for Smith).
254. The result was the Religious Freedom Restoration Act (RFRA) of 1993, Pub. L. No. 103-141, 107 Stat. 1488, invalidated by City of Boerne, 521 U.S. 507; see also id. § 2(b), 107 Stat. at 1488 ("The purposes of this Act are... to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963)[,] and Wisconsin v. Yoder, 406 U.S. 205 (1972)[,] and to guarantee its application in all cases where free exercise of religion is substantially burdened....").
255. City of Boerne, 521 U.S. 507.
256. See AMAR, supra note 209, at 255; Bybee, supra note 163; Harrison, supra note 163, at 169-74.
257. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 38 (Amy Gutmann ed., 1997) ("What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text....").
258. Employment Div. v. Smith, 494 U.S. 872, 878 (1990).
259. In fairness to Justice Scalia, Smith was a state case. It did not concern the First Amendment directly, but rather First Amendment rights incorporated against the states through the Fourteenth Amendment. Incorporation greatly complicates the who question, as will be discussed at length in the sequel to this Article, The Objects of the Constitution. For ease of exposition, however, the rest of this Subpart will use a stylized hypothetical based on Smith-but the hypothetical is a federal law and a direct application of the Free Exercise Clause.
260. Cf. Smith, 494 U.S. at 878 ("Respondents in the present case... contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons." (emphasis added)).
261. See cases cited supra note 72 and accompanying text.
262. U.S. CONST. amend. I (emphasis added).
263. See AMAR, supra note 209, at 255 ("The... First Amendment text speaks of the moment when 'Congress' 'make[s]' a 'law,' a moment when the religious practice may not even exist." (alteration in original)).
264. See U.S. CONST. amend. I.
265. Smith, 494 U.S. at 888.
266. See Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 819 (1999) ("The First Amendment's first addressee-its first word-is Congress, and its initial directive is to that body to 'make no law.' A Congress attempting to regulate religion as such-either openly or furtively-is obviously aware of what it is doing, and the First Amendment speaks to it and says no: 'Congress, Make No Law!'").
267. See Hamburger, supra note 216, at 937-38 ("[M]any Americans, especially dissenters seeking an expansion of religious liberty, repeatedly spoke of civil authority as if it could be differentiated from the scope of religion or religious freedom. This assumption is apparent in the language of the First Amendment, which begins, 'Congress shall make no law.' Rather than suppose that civil laws will in some respects prohibit the free exercise of religion and that exemptions will be necessary, the First Amendment assumes Congress can avoid enacting laws that prohibit free exercise." (emphasis added) (footnotes omitted)); see also AMAR, supra note 209, at 255; Amar, supra note 230, at 819-20 ("[A] Congress passing a sincerely secular law pursuant to its legitimate enumerated powers might not even be aware that the law might adversely affect some religious group somewhere of whose practices it is ignorant, or of whose existence it is wholly unaware. (Indeed, the group or the religious practice may not yet exist.) And so there is an obvious difference, under the Necessary and Proper Clause and the interlocking First Amendment, between a law banning a despised religion by name (or through some clever sham), and a la w banning the importation of an item that some religious group (unbeknownst to Congress) deems important to its religious life."); Harrison, supra note 163, at 169-74; cf. Bybee, supra note 163.
268. Smith, 494 U.S. at 877 (quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)).
269. Smith, 494 U.S. at 881.
270. Smith, 494 U.S. at 878.
271. On reading the Constitution holistically, see AMAR, supra note, at xi-xii (discussing the pitfalls of interpreting constitutional provisions in isolation);
272. Akhil Reed Amar, Heller, HLR, and Holistic Legal Reasoning, 122 HARV. L. REV. 145, 174 (2008) ("[T]he key is to read the Constitution in a holistic fashion...."); Amar, Intratextualism, supra note, at 796 ("Of course, a holistic textualism also calls for special skill, seeing and showing how different clauses cohere into larger patterns of constitutional meaning, and those more familiar with the document itself will be advantaged.");
273. Burt Neuborne, "The House Was Quiet and the World Was Calm, The Reader Became the Book," 57 VAND. L. REV. 2007, 2073 (2004) ("Reading the Bill of Rights holistically as you would a great poem does not eliminate hard cases. It does, however, direct a judicial reader to a confrontation with the text in ways that are deeper and more likely to generate coherence than other competing ways to read the document. We owe the text the effort.").
274. See AMAR, supra note, at 38-41.
275. See supra note 129. But see United Pub. Workers v. Mitchell, 330 U.S. 75 (1947).
276. Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) ("[G]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."); Minneapolis Star & Tribune Co. v. Minn. Comm'r of Revenue, 460 U.S. 575, 581 (1983) (dictum) ("[T]he States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems."); see also Citizen Publ'g Co. v. United States, 394 U.S. 131 (1969) (rejecting a freedom of the press challenge to the application of federal antitrust laws to business arrangements between two newspaper publishers); Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936) (suggesting in dicta that a tax directed at newspapers might not have been unconstitutional had it applied generally).
277. City of Erie v. Pap's A.M., 529 U.S. 277, 310 (2000) (Scalia, J., concurring) ("When conduct other than speech itself is regulated, it is my view that the First Amendment is violated only where the government prohibits conduct precisely because of its communicative attributes." (internal quotation marks omitted)); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 577 (1991) (Scalia, J., concurring) ("Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional... [W]here suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons... we have allowed the regulation to stand.").
278. Weinberg v. City of Chicago, 320 F.3d 682, 684 (7th Cir. 2003) (Easterbrook, J., dissenting) ("Whether laws regulating conduct must except expressive activities is an old question, with an established answer: no.").
279. Under current doctrine, a speech-neutral regulation that incidentally burdens speech does receive First Amendment scrutiny, but "a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376-77 (1968). Strikingly, though, it appears that the Court has rarely if ever used the O'Brien test to strike down a speech-neutral law.
280. Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46, 52 n.23 (1987);
281. Michael C. Dorf, Incidental Burdens on Fundamental Rights, 109 HARV. L. REV. 1175, 1204 (1996) ("Given that the O'Brien test asks so little in principle, it should not be surprising that it means so little in practice... [I]f O'Brien scrutiny is to remain toothless, it hardly seems worth retaining as a discrete First Amendment test."); cf. Virginia v. Hicks, 539 U.S. 113, 124 (2003) ("Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)); R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992) ("[S]ince words can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech.").
282. Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)).
283. See R.A.V., 505 U.S. at 390 ("Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.").
284. Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000) (holding that a state public accommodations statute prohibiting discrimination on the basis of sexual orientation was unconstitutional as applied to the Boy Scouts of America because it infringed the organization's right of expressive association, even though the statute did not discriminate on its face either against expression or among viewpoints).
285. Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 811 (2001) ("[T]he 'freedom of expressive association' is implicated precisely when the state targets an association or its members because of the expression in which they seek to engage. It is not violated by a conduct law of general applicability that happens adversely to affect individuals' ability to express their views through their associational choices."); id. at 817 ("[The Court should] have seen the Boy Scouts case for what it was: a claim that people are constitutionally entitled to violate a conduct law of general applicability because they have important expressive reasons for doing so. There is no such First Amendment immunity." (emphasis omitted)).
286. See U.S. CONST. amend. I; Griswold v. Connecticut, 381 U.S. 479, 482 (1965) ("The association of people is not mentioned in the Constitution nor in the Bill of Rights."); Piscottano v. Murphy, 511 F.3d 247, 273-74 (2d Cir. 2007) ("[F]reedom of speech is expressly protected by the First Amendment and... freedom of expressive association is not...."); Freeman v. City of Santa Ana, 68 F.3d 1180, 1188 (9th Cir. 1995) ("The First Amendment, while not expressly containing a 'right of association,' does protect 'certain intimate human relationships,' as well as the right to associate for the purpose of engaging in those expressive activities otherwise protected by the Constitution."); Republican Party v. Faulkner County, Ark., 49 F.3d 1289, 1292 (8th Cir. 1995) ("The right to associate is a penumbral right not expressly granted by the Constitution, but implied through the First Amendment rights to speech, petition and assembly."); DKT Mem'l Fund, Ltd. v. Agency for Int'l Dev., 887 F.2d 275, 292 (D.C. Cir. 1989) ("[W]e note that freedom of association, while not expressly mentioned in the Constitution, is protected as a First Amendment right....").
287. Letter from Thomas Jefferson to Mrs. Adams, supra note 93, at 555-56 (emphasis added).
288. See also R.A.V., 505 U.S. at 391, 379-80 & n.1 (holding a hate-speech ordinance "facially unconstitutional" under the First Amendment, and reversing a conviction thereunder even though the defendant's "conduct could have been punished under any of a number of laws," including laws banning "terroristic threats," and even though defendant's expression constituted fighting words); id. at 385 ("The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace and has found application in many contexts. We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses-so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not." (citing Texas v. Johnson, 491 U.S. 397, 406-07 (1989))).
289. Letter from Thomas Jefferson to Mrs. Adams, supra note, at 555-56 (emphasis added).
290. Nicholas Quinn Rosenkranz, THE SUBJECTS OF THE CONSTITUTION (forthcoming Oxford Univ. Press 2011).
291. See THE FEDERALIST NO. 78 (Alexander Hamilton), supra note 10, at 464 ("[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter...."); cf. United States v. Hudson & Goodwin, 11 U.S. 32 (1812).
292. See THE FEDERALIST NO. 48 (James Madison), supra note 10, at 306 ("[I]n a representative republic where the executive magistracy is carefully limited, both in the extent and the duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy, and exhaust all their precautions."); James Madison, Report on the Virginia Resolutions (1800) ("[I]n the United States, the great and essential rights of the people are secured against legislative as well as executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain, but from legislative restraint also...."), reprinted in 4 DEBATES ON THE ADOPTION OF THE FEDERAL CONSTITUTION 569- 70 (Jonathan Elliott ed., 2d ed., Philadelphia, J.B. Lippincott 1876).
293. See U.S. CONST. art. II, § 3 ("[The President] shall take Care that the Laws be faithfully executed...." (emphasis added)). The sequel to this Article will discuss the Take Care Clause at length and demonstrate that it reflects a principle of nondiscrimination (on the basis of speech and religion, among other things) in the execution of law.
294. 18 U.S.C. § 922(q)(2)(A) (2006).
295. United States v. Lopez, 514 U.S. 549, 552 (1995).
296. United States v. Morrison, 529 U.S. 598 (2000).
297. United States v. Morrison at 627.
298. See Gonzales v. Raich, 545 U.S. 1, 23 (2005) ("[I]n both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress' commerce power in its entirety."); id. at 71 (2005) (Thomas, J., dissenting) ("In Lopez and Morrison, the parties asserted facial challenges, claiming 'that a particular statute or provision fell outside Congress' commerce power in its entirety.'" (citation omitted)); Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 743 (2003) (Scalia, J., dissenting) (citing Lopez and Morrison for the proposition that "[w]hen... a federal statute is challenged as going beyond Congress's enumerated powers, under our precedents the court first asks whether the statute is unconstitutional on its face" (emphasis omitted)).
299. Lopez, 514 U.S. at 567.
300. See cases cited supra note 72.
301. Wash. State Grange v. Wash. State Republican Party, 128 S. Ct. 1184, 1191 (2008).
302. United States v. Salerno, 481 U.S. 739, 745 (1987).
303. See cases cited supra notes -.
304. City of Chicago v. Morales, 527 U.S. 41, 81-82 (1999) (Scalia, J., dissenting) ("[P]etitioner... can defeat respondents' facial challenge by conjuring up a single valid application of the law. My contribution would go something like this: Tony, a member of the Jets criminal street gang, is standing alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement-not entirely coherent, but evidently intended to be rude-'Gee, Officer Krupke, krup you.' A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it, I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents' facial challenge to the ordinance's vagueness." (footnotes omitted)).
305. Cf. Scarborough v. United States, 431 U.S. 563, 575-77 (1977).
306. Cf. Rancho Viejo v. Norton, 334 F.3d 1158, 1160 (D.C. Cir. 2003) (Roberts, J., dissenting) (attempting to reconcile Lopez and Morrison with Salerno).
307. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 743 (2003) (Scalia, J., dissenting) (citation omitted).
308. U.S. CONST. art. I, § 8, cl. 3.
309. See, e.g., United States v. Lopez, 514 U.S. 549, 583 (1995) (Kennedy, J., concurring) (characterizing the Gun-Free School Zones Act of 1990 as an "intrusion on state sovereignty" that "contradicts the federal balance the Framers designed" and therefore offends the Tenth Amendment).
310. United States v. Butler, 297 U.S. 1, 62 (1936) (emphasis added).
311. See, e.g., United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003); United States v. Stewart, 348 F.3d 1132, 1141 (9th Cir. 2003) (the Supreme Court has "always entertained as-applied challenges under the Commerce Clause"); United States v. Ho, 311 F.3d 589 (5th Cir. 2002).
312. McCoy, 323 F.3d at 1133 (Trott, J., dissenting);
313. John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174, 201 (1998) ("Most constitutional litigation is divided into facial challenges to an entire statute and individual challenges to particular applications of the statute, with the failure of the facial challenge in no way precluding a subsequent as-applied challenge. Not so in Commerce Clause cases.");
314. Nathanial Stewart, Note, Turning the Commerce Clause Challenge "On Its Face": Why Federal Commerce Clause Statutes Demand Facial Challenges, 55 CASE W. RES. L. REV. 161 (2004).
315. Gonzales v. Raich, 545 U.S. 1, 8 (2005).
316. McCoy, 323 F.3d at 15 (citation omitted).
317. McCoy, 323 F.3d (emphasis added).
318. McCoy, 323 F.3d at 7 ("Raich's physician believes that forgoing cannabis treatments would certainly cause Raich excruciating pain and could very well prove fatal.").
319. See supra Part IV.C.
320. U.S. CONST. art. VI.
321. Raich, 545 U.S. at 15 ("Respondents... do not dispute that passage of the CSA, as part of the Comprehensive Drug Abuse Prevention and Control 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.").
322. Raich, 545 U.S. at 15 ("[T]he 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.").
323. Raich, 545 U.S. at 17.
324. See Perez v. United States, 402 U.S 146, 154 (1971) ("Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise as trivial, individual instances of the class." (internal quotation marks omitted) (emphasis omitted)).
325. Raich, 545 U.S. at 29 n.38 (emphasis added) (citation omitted).
326. Raich, 545 U.S. at 15.
327. Raich, 545 U.S. at 17.
328. See United States v. Morrison, 529 U.S. 598, 612 (2000) ("[A] jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce."); id. at 613 ("Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce."); United States v. Lopez, 514 U.S. 549, 561 (1995) ("Second, § 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.").
329. See Lopez, 514 U.S. at 562.
330. After Lopez, Congress re-enacted the Gun Free School Zones Act, adding just such a jurisdictional element. See Gun-Free School Zones Act of 1996 (within Omnibus Consolidated Appropriations Act, 1997), Pub. L. No. 104-208, § 657, 110 Stat. 3009, 3009- 369-3009-71 (codified at 18 U.S.C. § 922(q)) ("It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone." (emphasis added)); cf. Scarborough v. United States, 431 U.S. 563, 575-77 (1977).
331. AMAR, supra note 209, at 39.
332. U.S. CONST. art. I, § 8, cls. 1, 18 (emphasis added).
333. Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)).
334. U.S. CONST. art. I, § 8, cl. 1 (emphasis added).
335. U.S. CONST. art. I, § 8, cl. 1 (emphasis added) amend. XIV, § 5.
336. See Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) ("[T]he McCulloch v. Maryland standard is the measure of what constitutes 'appropriate legislation' under § 5 of the Fourteenth Amendment."); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
337. City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
338. City of Boerne v. Flores, 521 U.S. at 534-35.
339. Gonzales v. Raich, 545 U.S. 1, 29 n.38 (2005) (emphasis added) (second alteration in original) (citations omitted).
340. McCulloch, 17 U.S. at 424.
341. McCulloch, 17 U.S. at 432.
342. McCulloch, 17 U.S. at 424.
343. Thomas M. Cooley, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 125-26 (7th ed. 1903);
344. John O. McGinnis & Michael B. Rappaport, Essay, The Constitutionality of Legislative Supermajority Requirements: A Defense, 105 YALE L.J. 483, 503-07 (1995);
345. Bruce Ackerman, et al., Comment, An Open Letter to Congressman Gingrich, 104 YALE L.J. 1539 (1995).
346. See Rosenkranz, supra note 99, at 1887 & n.91.
347. See Rosenkranz, supra note 99, at 1886. But see Missouri v. Holland, 252 U.S. 416 (1920) (holding that treaties can increase the legislative power of Congress).
348. See New York v. United States, 505 U.S. 144, 182 (1992) ("The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States.").
349. McCulloch v. Maryland, 17 U.S. 316 (1819).
350. Gonzales v. Raich, 5 45 U.S. 1 (2005).
351. See infra note 319.
352. See New York, 505 U.S. at 182 ("The constitutional authority of Congress cannot be expanded by the 'consent' of the governmental unit whose domain is thereby narrowed, whether that unit is the Executive Branch or the States. State officials thus cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.").
353. Nicholas Quinn Rosenkranz, Condorcet and the Constitution: A Response to The Law of Other States, 59 STAN. L. REV. 1281, 1305 (2007).
354. Employment Div. v. Smith, 494 U.S. 872 (1990).
355. Raich, 545 U.S. at 323-33.
356. U.S. CONST. art. I, § 1.
357. See generally Rosenkranz, supra note 99, at 1892-1912.
358. The Attorney General's Duty, supra note 43, at 59.
359. This is not as farfetched as it sounds. Indeed, the litigation over the 2006 reenactment of the Voting Rights Act raised precisely this issue, Brief of Petitioner- Appellant at 2, Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504 (2009) (No. 08-322) ("Congress had the opportunity, and obligation, in 2006 to reexamine § 5's continued appropriateness, or at least update the coverage formula. It made no serious effort to do so.") (emphasis added), but the Court managed to dodge the problem in its opinion, Northwest Austin., 129 S. Ct. at 2512-15 (noting the constitutional issue, but deciding to avoid it by providing relief on statutory grounds); see also id. at 2519-20 (Thomas, J., concurring in the judgment in part and dissenting in part) (concluding that Congress's action in reauthorizing Section 5 of the Voting Rights Act in 2006 was unconstitutional, even though Congress's action in enacting it originally in 1965 was constitutional) ("There is certainly no question that the VRA initially 'was passed pursuant to Congress'[s] authority under the Fifteenth Amendment.'" (emphasis added) (quoting Lopez v. Monterey County, 525 U.S. 266, 282 (1999))).
360. Pamela S. Karlan, Two Section Twos and Two Section Fives: Voting Rights and Remedies After Flores, 39 WM. & MARY L. REV. 725, 730-31 (1998) ("[C]an an 'enforcement' statute become unconstitutional if circumstances change?... There is something at least disquieting about the idea of continuing federal intervention if the grounds on which congressional action rest 'have vanished long since, and the rule simply persists from blind imitation of the past.' At the same time, it may be quite difficult to judge whether a threat has receded because state actors no longer wish to engage in purposeful discrimination (if, for example, attitudes about the protected class or behavior have changed) or only because the congressional prohibition remains in place." (citations omitted));
361. Marcia L. McCormick, Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact on Congress's Power, 37 IND. L. REV. 345, 367 (2004) (lamenting that the Court's recent jurisprudence may indicate that "a statutory provision [passed pursuant of the Fourteenth Amendment's remedial clause] which once was a valid abrogation of state sovereign immunity became invalid" with the passage of time);
362. Daniel J. Meltzer, Overcoming Immunity: The Case of Federal Regulation of Intellectual Property, 53 STAN. L. REV. 1331, 1350 (2001) ("[W]hat happens if and when constitutional violations are no longer widespread? One possibility is that a statute like Section 1983, fully constitutional when enacted, would become unconstitutional-perhaps as the consequence of its own efficacy. The result-that a statute remains valid only for so long as it is regularly defied-is surely an odd one. (It brings to mind the story of the inhabitants of a mountain village removing a sign warning of a dangerous curve because no one had recently driven off the road.) Equally odd is a different possibility-that the statute remains constitutional because there were widespread and persistent problems in the past. On that view, had the identical statute been passed years later, after the constitutional problems were less widespread, the same measure would be unconstitutional-thus making a statute's constitutionality at present depend on the date of its enactment.").
363. U.S. CONST. amend. XIV, § 5 (emphasis added).
364. U.S. CONST. amend. X.
365. U.S. CONST. amend. XIV, § 5.
366. Catherine Carroll, Note, Section Five Overbreadth: The Facial Approach to Adjudicating Challenges Under Section Five of the Fourteenth Amendment, 101 MICH. L. REV. 1026 (2003) ("The Court in [recent Section 5 cases] has departed from the traditional 'as-applied' method of adjudication in favor of a facial overbreadth approach. Instead of considering legislation in light of the particular facts and claims of a given case, the Court has examined the challenged statutes on their faces. Instead of asking whether any set of circumstances exists in which the challenged statutes might appropriately enforce the Fourteenth Amendment against unconstitutional state action, the Court has asked whether many of the state acts affected by these statutes have a significant likelihood of being unconstitutional." (emphasis added)); cf. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 64 (2000) ("The Act, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard." (emphasis added)); id. at 87 ("Measured against the rational basis standard of our equal protection jurisprudence, the ADEA plainly imposes substantially higher burdens on state employers...." (emphasis added)); United States v. Morrison, 529 U.S. 598, 627 (2000) (sustaining an apparently "facial" challenge to the Violence Against Women Act without once considering the congruence and proportionality of the Act "as applied" to the facts of the case, or mentioning Salerno's "no set of circumstances" test for facial challenges); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Savings Bank, 527 U.S. 627, 646 (1999) ("Congress did nothing to limit the coverage of the Act to cases involving arguable constitutional violations...." (emphasis added)); id. at 654 (Stevens, J., dissenting) (the Court's opinion "has nothing to do with the facts of this case"); City of Boerne v. Flores, 521 U.S. 507, 532 (1997) ("Preventive measures prohibiting certain types of laws may be appropriate when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional." (emphasis added)); id. at 532 ("[RFRA] intru[ded] at every level of government, displacing laws and prohibiting official actions of almost every description and regardless of subject matter."); id. at 535 ("In most cases, the state laws to which RFRA applies are not ones which will have been motivated by religious bigotry." (emphasis added)). But see United States v. Georgia, 546 U.S. 151 (2006); Civil Rights Cases, 109 U.S. 3, 19 (1883) ("Whether the law would be a valid one as applied to the territories and the district is not a question for consideration in the cases before us; they all being cases arising within the limits of states." (emphasis added)) (suggesting that the Court evaluated the challenged statute as applied).
367. See, e.g., Civil Rights Act of 1871 (Ku Klux Klan Act), ch. 22, § 1, 17 Stat. 13 ("[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall... be liable to the party injured in any action at law...." (invoking the language of the Fourteenth Amendment)); Enforcement Act of 1870, ch. 114, § 14, 16 Stat. 140 ("[W]henever any person shall hold office... contrary to the provisions of the third section of the fourteenth article of amendment of the Constitution of the United States, it shall be the duty of the district attorney of the United States... to proceed against such person...." (expressly invoking the Fourteenth Amendment)); id. § 15 ("any person who shall hereafter knowingly accept or hold any office under the United States, or any State to which he is ineligible under the third section of the fourteenth article of amendment of the Constitution of the United States... shall be deemed guilty of a misdemeanor...." (expressly invoking the Fourteenth Amendment)); see also Civil Rights Act of 1875, ch. 114, § 4, 18 Stat. 335 ("[N]o citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude...." (describing an Equal Protection violation)); Enforcement Act of 1870, ch. 114, § 2, 16 Stat. 140 ("[I]f by or under the authority of the constitution or laws of any State... any act is or shall be required to be done as a prerequisite or qualification for voting... it shall be the duty of every such person and officer [voting officials] to give to all citizens of the United States the same and equal opportunity to perform such prerequisite, and to become qualified to vote without distinction of race, color, or previous condition of servitude; and if any such person or officer shall refuse or knowingly omit to give full effect to this section, he shall... be deemed guilty of a misdemeanor...." (describing state actions likely unconstitutional under the 14th and 15th Amendments)). 325. See supra Part V.B.
368. Cf. City of Boerne, 521 U.S. at 535 ("Simply put, RFRA is not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion." (emphasis added)).
369. The language of Section 5 of the Fourteenth Amendment recurs almost verbatim in several other amendments. U.S. CONST. amend. XIII, § 2; id. amend. XV, § 2; id. amend. XVIII, § 2; id. amend. XIX; id. amend. XXIII, § 2; id. amend. XXIV, § 2; id. amend. XXVI, § 2, The structural and doctrinal logic of these provisions is probably the same, and they too should probably require appropriate "jurisdictional hooks" in their enforcing legislation. These parallels will be explored at greater length in NICHOLAS QUINN ROSENKRANZ, THE SUBJECTS OF THE CONSTITUTION (forthcoming Oxford University Press 2011).
370. Katzenbach v. Morgan, 384 U.S. 641, 650 (1966).
371. Professor Akhil Amar has explained: [T]he framers saw the Enforcement Clause phrase "appropriate legislation" as equivalent to the Article I, Section 8 phrase "proper laws." Ordinary dictionaries confirm the obvious etymological link between "proper" and "appropriate." And in one of McCulloch's most famous passages, Marshall cemented this etymological linkage in words that the Thirty-Ninth Congress knew and relied on: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional." Only a couple of years after the Fourteenth Amendment became part of our supreme law, the Supreme Court itself quoted this famous passage in full and then declared that "[i]t must be taken then as finally settled, so far as judicial decisions can settle anything, that the words" of the Necessary and Proper Clause were "equivalent" to the word "appropriate." Amar, supra note 230, at 825-26 (second alteration in original) (footnotes omitted) (citing 1 THE OXFORD ENGLISH DICTIONARY 586-87 (2d ed. 1989)) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (emphasis added); Hepburn v. Griswold, 75 U.S. (8 Wall.) 603, 614-15 (1870)).
372. AMAR, supra note 209, at 39.
373. See United States v. Nixon, 418 U.S. 683, 703 (1974) ("In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution....");
374. H. Jefferson Powell, The President's Authority over Foreign Affairs: An Executive Branch Perspective, 67 GEO. WASH. L. REV. 527, 530-31 (1999) ("The Constitution places the textually unique duty on the President to 'preserve, protect and defend the Constitution,' and subordinate executive officers and members of Congress are under as solemn an obligation as judges 'to support' the Constitution. When the executive or legislative branch encounters constitutional issues in the course of its activities, as each invariably must, it acts within its own 'province and duty' in saying what the law of the Constitution is." (footnote omitted)); Rosenkranz, supra note 98, at 2088 n.7.
375. See Employment Div. v. Smith, 494 U.S. 872, 877-78 (1990) ("It would be true, we think (though no case of ours has involved the point), that a State would be 'prohibiting the free exercise [of religion]' if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of 'statues that are to be used for worship purposes,' or to prohibit bowing down before a golden calf." (alterations in original) (emphasis added)); id. at 886 n.3 ("[W]e strictly scrutinize governmental classifications based on religion... [But] generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest...." (citations omitted)).
376. See cases cited supra note 238.
377. See cases cited supra notes 239 & 240.
378. See articles cited supra note 245.
379. See cases cited supra note 332.
380. See United States v. Morrison, 529 U.S. 598, 612 (2000) ("[A] jurisdictional element may establish that the enactment is in pursuance of Congress' regulation of interstate commerce."); id. at 613 ("Like the Gun-Free School Zones Act at issue in Lopez, § 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce."); United States v. Lopez, 514 U.S. 549, 561 (1995) ("Second, § 922(q) contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.").
381. Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (quoting Sherbert v. Verner, 374 U.S. 398, 402 (1963)).
382. U.S. CONST. amend. XIV, § 1.
383. Bryan A. Garner, A DICTIONARY OF MODERN AMERICAN USAGE 483 (1998);
384. John B. Opdycke, HARPER'S ENGLISH GRAMMAR 134 (Stewart Benedict ed., Harper & Row 1966) (1817) ("If the subject performs the action, the verb is in active voice.... If the subject is acted upon, the verb is in passive voice....").
385. CHALKER & WEINER, supra note 5.
386. See supra note 8.