The objects of the constitution

Stanford Law Review

Volumn 63, Issue 5, 2011, Pages 1005-1070

  Rosenkranz, Nicholas Quinn ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 79957903667     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (418)

1. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 329 (1816) (Story, J.).
2. The Federalist No. 83, at 503 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
3. Nicholas Quinn Rosenkranz, The Subjects of the Constitution, 62 Stan. L. Rev. 1209 (2010).
4. See The Federalist No. 70 (Alexander Hamilton), supra note 2, at 428-29 ("[T]he two greatest securities [that the people] can have for the faithful exercise of any delegated power [are], first, the restraints of public opinion,... 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.").
5. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998).
6. See The Federalist No. 51 (James Madison), supra note 2, at 320-25.
7. See The Federalist No. 48 (James Madison), supra note 2, at 308.
8. See I.N.S. v. Chadha, 462 U.S. 919, 951 (1983) ("The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.");
9. Richard H. Fallon, et al., Hart and Wechsler's The Federal Courts and the Federal System 4 (6th ed. 2009) ("The most important implementing decisions [at the Constitutional Convention] were those defining the powers of the national government, allocating representation among the states, and distributing responsibilities between the national legislature and the national executive.");
10. Michael W. McConnell, Contract Rights and Property Rights: A Case Study in the Relationship Between Individual Liberties and Constitutional Structure, 76 Calif. L. Rev. 267-268 (1988) ("[I]t is striking how often the language of the United States Constitution protects important rights against one level or branch of government but not against the others.").
11. See supra notes 1-2 and accompanying text.
12. U.S. Const. art. VI, cl. 3.
13. 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.").
14. In theory, two clauses of the Constitution may bind individuals directly and thus may be violated by individuals. 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.");
15. 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 The Civil Rights Cases, 109 U.S. 3, 35-36 (1883) (Harlan, J., dissenting)));
16. Akhil Reed Amar, Remember the Thirteenth, 10 Const. Comment. 403-04 (1993) ("[T]he Thirteenth Amendment clearly applies to that private action: Slavery, the Amendment commands, shall not exist. [B]ut I suggest the Amendment also and relatedly prohibits certain kinds of state inaction.");
17. 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) ("The text [of the Twenty-First Amendment] actually forbids the private conduct it identifies, rather than conferring power on the States as such.");
18. 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...."). Because these clauses are so exceptional-no Supreme Court case has ever held that an individual, in a purely individual capacity, has violated the Constitution-this category may, for present purposes, be set aside.
19. See Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) ("[M]ost rights secured by the Constitution are protected only against infringement by governments."); Tribe, supra, at 219 (noting "the principle that our Constitution's provisions, even when they don't say so expressly, limit only some appropriate level of government" (footnote omitted));
20. Lillian BeVier & John Harrison, The State Action Principle and Its Critics, 96 Va. L. Rev. 1767-1769 (2010) ("[T]he Constitution includes hardly any rules that apply directly to private people. The standard way to express the foregoing observation is to say that constitutional rules apply only to state action and not to private action.").
21. McConnell, supra note 8, at 268 ("[I]t is striking how often the language of the United States Constitution protects important rights against one level or branch of government but not against the others.... It is also striking that the courts typically disregard these limits and protect rights against government action generally."); Rosenkranz, supra note 3, at 1222-23 n.38.
22. 32 U.S. (7 Pet.) 243 (1833).
23. U.S. Const. amend. I (emphasis added); see Rosenkranz, supra note 3, at 1250-73.
24. U.S. Const. amend. XIV, § 1 (emphasis added).
25. Bryan A. Garner, Garner's Modern American Usage 612 (3d ed. 2009).
26. Samuel Johnson, A Dictionary of the English Language (London, W. Strahan 1755) ("The passive voice is formed by joining the participle preterite to the substantive verb, as I am loved.").
27. U.S. Const. amend. II.
28. Id. amend. III.
29. Id. amend. IV.
30. Id. amend. V.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id. amend. VI.
36. Id.
37. Id. amend. VII.
38. Id.
39. Id. amend. VIII.
40. Garner, supra note 17, at 612;
41. see also Johnson, supra note 18.
42. Sylvia Chalker & Edmund Weiner, The Oxford Dictionary of English Grammar 379 (rev. ed. 1998) ("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.").
43. Id.
44. Id.
45. U.S. Const. art. I, § 9, cl. 1 (emphasis added).
46. 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.");
47. H.W. Fowler & R.W. Burchfield, The New Fowler's Modern English Usage 576 (rev. 3d ed. 2000) ("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.").
48. Garner, supra note 17, at 612-13;
49. Alonzo Reed & Brainerd Kellogg, Higher Lessons in English 199 (New York, Clark & Maynard 1880) ("The passive voice may be used when the agent is unknown, or when, for any reason, we do not care to name it.").
50. David P. Currie, The Civil War Congress, 73 U. Chi. L. Rev. 1131-1134 (2006) (noting that "the Constitution did not explicitly answer the question" of who may suspend the writ of habeas corpus);
51. id. at 1224 ("The Constitution did not say [who would count votes], as it spoke delphically in the passive voice ('the Votes shall then be counted')." (quoting U.S. Const. art. II, § 1, cl. 3));
52. Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257-1269 (2004) ("Like many of the Constitution's empowerments and limitations, [Article I, Section 9, Clause 2,] is written somewhat awkwardly, in passive voice.");
53. Albert J. Rosenthal, The Constitution, Congress, and Presidential Elections, 67 Mich. L. Rev. 1-27 (1968) (noting that the passive voice of the phrase "the votes shall then be counted" in the Twelfth Amendment breaks one of the "cardinal rules of draftsmanship");
54. Laurence H. Tribe, eroG.v hsuB and Its Disguises: Freeing Bush v. Gore from Its Hall of Mirrors, 115 Harv. L. Rev. 170-279 (2001) ("The Framers should have listened to the time-honored injunction to avoid the passive voice. 'Shall then be counted'-by whom?");
55. Matthew D. Zinn, Note, Ultra Vires Takings, 97 Mich. L. Rev. 245-250 (1998) ("Like most of the Constitution's provisions, the Takings Clause requires that a plaintiff allege governmental action to state a claim, though the Clause's use of the passive voice obscures the actors to whom the Clause is directed." (footnote omitted)).
56. 32 U.S. (7 Pet.) 243 (1833).
57. Id. at 247.
58. U.S. Const. amend. V (emphasis added).
59. Id. at 248.
60. U.S. Const. art. I, § 9, cl. 3 (emphasis added).
61. Id. art. I, § 10, cl. 1 (emphasis added).
62. See Barron, 32 U.S. (7 Pet.) at 248-49.
63. Id. at 248.
64. See 17 U.S. (4 Wheat.) 316, 414-15 (1819);
65. Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747-58 (1999).
66. Barron, 32 U.S. (7 Pet.) at 249.
67. Id. at 247. One special set of clauses, which might be called "interpretive clauses," constitutes an important exception to the rule. There are at least two such clauses. The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const. amend. IX (emphasis added). And the Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI (emphasis added);
68. Nicholas Quinn Rosen-kranz, An American Amendment, 32 Harv. J.L. & Pub. Pol'y 475-480 (2009) ("These two amendments are rules of construction, rules of interpretation; here the Constitution is giving explicit instruction regarding the proper methods for its own interpretation.").
69. These clauses give their interpretive instructions in the passive voice, raising the question construed by whom? But because these are instructions for the interpretation of the Constitution, the logic of Barron does not apply. The logic of Barron is that when the Constitution limits power in the passive voice, it is limiting the power of the government that it created, the federal government. But when the Constitution provides instructions for its own interpretation, a different logic applies, a logic driven by Article VI.
70. The Supremacy Clause provides: "This Constitution... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. And: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...." Id. art. VI, cl. 3.
71. If the Constitution- including the interpretive clauses of the Ninth and Eleventh Amendments-is the supreme law of the land, and state actors as well as federal actors are bound to support it and required to interpret it, then it must be that state actors as well as federal actors are obliged to obey those interpretive clauses, even though they are written in the passive voice.
72. Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 Stan. L. Rev. 895-904 (2008);
73. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085-2153 (2002) ("[S]ubstantive enactments and their corresponding interpretive methodology cannot be unmoored from one another. Thus, federal statutes must be read using federal methodology, and state statutes must be read using state methodology, regardless of whether the venue is state or federal court.").
74. The Federalist No. 83 (Alexander Hamilton), supra note 2, at 502.
75. U.S. Const. art. I, § 10 (emphasis added).
76. Barron, 32 U.S. (7 Pet.) at 249 (emphasis added).
77. Id.
78. See Fallon et al., supra note 8, at xxix (table of cases).
79. Barron, 32 U.S at 247.
80. U.S. Const. art. I, § 10, cls. 1-3; id. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added)).
81. See Rosenkranz, supra note 3, at 1229.
82. U.S. Const. amend. I; see Rosenkranz, supra note 3, at 1250-73.
83. See Rosenkranz, supra note 3, at 1273-81.
84. U.S. Const. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress of the United States.").
85. Id. art. I, § 8, cls. 1, 3 (emphasis added) ("The Congress shall have Power. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.").
86. See Rosenkranz, supra note 3, at 1273-81.
87. U.S. Const. art. I, § 8, cl. 4 (emphasis added).
88. Id. art. I, § 8, cl. 11 (emphasis added).
89. Id. art. I, § 8, cl. 14 (emphasis added).
90. Id. art. I, § 8, cl. 17.
91. Id. art. I, § 8, cl. 18 (emphasis added).
92. Id. art. I, § 8, cl. 9.
93. See Sheldon v. Sill, 49 U.S. (8 How.) 441, 448-49 (1850) ("Congress[,] having the power to establish the courts, must define their respective jurisdictions. Courts created by statute can have no jurisdiction but such as the statute confers.").
94. U.S. Const. art. III, § 1 ("The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.").
95. Cf. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 417 (1819) ("Take, for example, the power 'to establish post offices and post roads.' This power is executed by the single act of making the establishment." (emphasis added)).
96. U.S. Const. pmbl. (emphasis added).
97. Akhil Reed Amar, America's Constitution: A Biography 5 (2005) ("These words 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.");
98. J.L. Austin, How to Do Things with Words 6 (2d ed. 1975) ("[T]o utter the sentence (in, of course, the appropriate circumstances) is not to describe my doing of what I should be said in so uttering to be doing or to state that I am doing it: it is to do it. What are we to call a sentence or an utterance of this type? I propose to call it a performative sentence or a performative utterance, or, for short, a 'performative.'" (footnotes omitted)).
99. See Amar, supra note 5, at 39; Rosenkranz, supra note 3, at 1288.
100. U.S. Const. art. I, § 8, cls. 1, 18 (emphasis added).
101. Cf. McCulloch, 17 U.S. (4 Wheat.) at 412-13 ("Could it be necessary to say, that a legislature should exercise legislative powers, in the shape of legislation? After allowing each house to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind of a single member of the Convention, that an express power to make laws was necessary to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned.").
102. U.S. Const. art. I, § 1.
103. See Rosenkranz, supra note 3, at 1273-81.
104. A handful of clauses in Article I, Section 8, have verbs that may sound more like physical actions than legal ones. See, e.g., U.S. Const. art. I, § 8, cls. 1, 5 ("The Congress shall have Power... [t]o coin Money...." (emphasis added)); id. art. I, § 8, cls. 1, 10 ("The Congress shall have Power... [t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations...." (emphasis added)). But even these clauses must be read through the lens of the Necessary and Proper Clause, which makes clear that Congress's power is exclusively legislative-the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" these more active-sounding powers. Cf. McCulloch, 17 U.S. (4 Wheat.) at 413-14.
105. See Flagg Bros. v. Brooks, 436 U.S. 149, 156 (1978) ("[M]ost rights secured by the Constitution are protected only against infringement by governments."); BeVier & Harrison, supra note 12, at 1769 ("[T]he Constitution includes hardly any rules that apply directly to private people.... The standard way to express the foregoing observation is to say that constitutional rules apply only to state action and not to private action."); Tribe, supra note 12, at 219 (noting "the principle that our Constitution's provisions, even when they don't say so expressly, limit only some appropriate level of government" (footnote omitted)).
106. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250-51 (1833); supra Part I.A.
107. U.S. Const. art. I, § 9, cl. 3.
108. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587-88 (1952) ("In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.
109. The first section of the first article says that 'All legislative Powers herein granted shall be vested in a Congress of the United States....'" (omission in original)); cf. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001) ("[The Constitution] permits no delegation of [legislative] powers.").
110. Cf. United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (holding that federal courts lack power to create federal common law crimes). There was no need for the Ex Post Facto Clause to extend to federal courts, because federal courts lack the power to create crimes at all.
111. U.S. Const. art. I, § 1 (emphasis added).
112. Id. art. I, § 8, cl. 18 (emphasis added).
113. Id. art. I, § 7, cl. 2 (emphasis added).
114. William Blackstone, Commentaries 46 (defining an ex post facto enactment as, "when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it" (emphasis added)).
115. The Debates in the Several State Conventions, on the Adoption of the Federal Constitution 257 (Jonathan Elliot ed., Philadelphia, J.B. Lippincott Co. 2d ed. 1891) (1836) [hereinafter State Convention Debates] (first emphasis added).
116. U.S. Const. amend. I.
117. The Records of the Federal Convention of 1787, at 565-571 (Max Farrand ed., rev. ed. 1966) (text submitted to the Committee of Style: "[t]he Legislature shall pass no bill of attainder nor any ex post facto laws"), with id. at 590, 596 (text returned by the Committee: "[n]o bill of attainder shall be passed, nor any ex post facto law").
118. See The Federalist No. 44 (James Madison), supra note 2, at 282 ("Bills of attainder [and] ex post facto laws... are contrary to the first principles of the social compact and to every principle of sound legislation." (second emphasis added)); see also The Federalist No. 78 (Alexander Hamilton), supra note 2, at 466 ("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." (first emphasis added)).
119. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 389 (1798) ("The Constitution of the United States, article 1, section 9, prohibits the Legislature of the United States from passing any ex post facto law." (emphasis altered)).
120. Nevertheless, in this most simple case, it is striking that confusion about the who question persists. As recently as 2008, the Second Circuit gave the wrong answer, holding that a district court had violated the Ex Post Facto Clause. See United States v. Marcus, 538 F.3d 97, 98, 102 (2d Cir. 2008). So, just last Term, the Supreme Court was obliged to reaf-firm that "[t]he Ex Post Facto Clause is a limitation upon the powers of the Legislature." United States v. Marcus, 130 S. Ct. 2159, 2165 (2010) (second emphasis added) (quoting Marks v. United States, 430 U.S. 188, 191 (1977)); see also Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592, 2601 (2010) (Scalia, J., concurring) ("The Takings Clause (unlike, for instance, the Ex Post Facto Clauses) is not addressed to the action of a specific branch or branches." (citations omitted));
121. Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder, Keeping Faith with the Constitution 11 (2009) ("Article I, Section 9. prohibits the enactment of bills of attainder or ex post facto laws." (emphasis added));
122. Ronald E. Rotunda & John E. Nowak, Treatise on Constitutional Law § 15.9(b)(i), at 867 (4th ed. 2007) ("The clause[] limit[s] Congress. when enacting penal laws that have a retrospective effect." (emphasis added)).
123. Ex parte Merryman, 17 F. Cas. 144, 148 (C.C.D. Md. 1861) (No. 9487) (emphasis added).
124. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833).
125. U.S. Const. art. I, § 9, cl. 2.
126. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 Harv. L. Rev. 941-99 (2008) (citing Abraham Lincoln, Executive Order to the Commanding General of the Army of the United States (Apr. 27, 1861)).
127. See Ex parte Merryman, 17 F. Cas. at 148-49.
128. See Hamdi v. Rumsfeld, 542 U.S. 507, 562 (2004) (Scalia, J., dissenting) ("Although [the Suspension Clause] does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause's placement in Article I." (emphasis added)).
129. Bernard D. Reams, & Stuart D. Yoak, The Constitution of the United States: A Guide and Bibliography to Current Scholarly Research 10 (1987) (titling Article I, Section 9, bibliography, "Powers Denied to Congress");
130. Charles A. Shanor, American Constitutional Law: Structure and Reconstruction 2 (2001) ("[Article I,] § 9: Restricts powers of Congress");
131. John R. Vile, A Companion to the United States Constitution and Its Amendments 53 (2d ed. 1997) ("Article I, Section 9-Limits on Congressional Powers").
132. Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 108-17, at 362 (Johnny H. Killian et al. eds., Supp. 2004) (emphasis added).
133. Ex parte Merryman, 17 F. Cas. at 148.
134. U.S. Const. art. I, § 9, cl. 1 (emphasis added).
135. Id. art. I, § 9, cl. 8 (emphasis added). Presumably, the Title of Nobility Clause specifies "by the United States" in order to distinguish the possibility, addressed later in the same clause, that a title might be granted, with the consent of Congress, by a "King, Prince, or foreign State." Id.
136. See The Federalist No. 69 (Alexander Hamilton), supra note 2, at 421 ("The king of Great Britain is emphatically and truly styled the fountain of honor. He not only appoints to all offices, but can create offices. He can confer titles of nobility at pleasure.");
137. Noel Cox, The British Peerage, 17 N.Z.U.L. Rev. 379-392 (1997) ("While the legal definition of a peer has varied over the centuries, English law on the issue has been reasonably settled for the past 500 years. Peers are created by the Queen on the advice of her British Ministers.").
138. U.S. Const. art. I, § 9, cl. 7.
139. See id. art. I, § 8, cl. 1.
140. Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) (emphasis added);
141. Christopher N. May, Presidential Defiance of "Unconstitutional" Laws: Reviving the Royal Prerogative, 21 Hastings Const. L.Q. 865-874 (1994) ("[T]here are two clauses in [Article I,] section 9 that restrict the President's powers rather than those of Congress.").
142. Ex parte Merryman, 17 F. Cas. 144, 148 (C.C.D. Md. 1861) (No. 9487).
143. Akhil Reed Amar, Architexture, 77 Ind. L.J. 671-698 (2002) ("Architextural arguments from blueprint location must be considered alongside, and should ideally cohere with, more general arguments of text, history, and structure. The location of the suspension clause in Article I need not, by itself, mean that the executive power fails to encompass suspension authority on the facts Lincoln faced.").
144. Jay S. Bybee, Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment, 75 Tul. L. Rev. 251-323 (2000).
145. See Rosenkranz, supra note 3, at 1227-50.
146. See generally Amar, supra note 5, at xii ("Individual and minority rights did constitute a motif of the Bill of Rights-but not the sole, or even the dominant, motif. A close look at the Bill reveals structural ideas tightly interconnected with language of rights; states' rights and majority rights alongside individual and minority rights; and protection of various intermediate associations-church, militia, and jury-designed to create an educated and virtuous electorate. The genius of the Bill was not to downplay organizational structure but to deploy it, not to impede popular majorities but to empower them.").
147. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833).
148. U.S. Const. art. I, § 10, cls. 1-3.
149. Barron, 32 U.S. (7 Pet.) at 249.
150. U.S. Const. art. I, § 10, cls. 1-3.
151. Id. art. VI, cl. 3 ("The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.").
152. See generally Amar, supra note 112.
153. U.S. Const. art. I, § 10, cl. 1.
154. But see infra Part III.B.1.
155. Rogers v. Tennessee, 532 U.S. 451, 456 (2001) (quoting Marks v. United States, 430 U.S. 188, 191 (1977)) (internal quotation marks omitted).
156. See Rosenkranz, supra note 3, at 1235.
157. However, two years later, the Court reverted to muddled euphemism: "[A] law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution." Stogner v. California, 539 U.S. 607, 632-33 (2003). how obscuring the who leads to confusion about the when, which in turn leads to erroneous substantive doctrine. A "law" cannot violate the Ex Post Facto Clause or any other clause of the Constitution. The Constitution forbids actions, and binds government actors. The Court should not say: "A law... violates the ex post facto clause when...." The holding should begin: "A state legislature violates the Ex Post Facto Clause when...."
158. The difference is substantive as well as semantic. Once one has the subject right, it is clear that the Court's predicate is wrong. Once one answers the who question, the answer to the when question follows. One cannot say, following the Court: "[A state legislature] violates the Ex Post Facto Clause when [a law that it passed] is applied to revive a previously time-barred prosecution." At that moment, the moment of application, the state legislature may be in recess.
159. Years may have passed since the legislature passed the law. The legislators who voted for it may have retired, or died. It makes no sense to say that they violated the Constitution at that moment, from their beds or their graves. And it makes no sense to say the current legislature violated the Constitution at that moment; after all, the current legislators may have had nothing to do with either the enactment of the law (before their time) or the application of the law (not their department).
160. The Ex Post Facto Clause is not violated "when [a law] is applied to" a particular set of facts. The Ex Post Facto Clause forbids passing certain laws. If a legislature violates this provision, then it violates the provision by passing such a law, at the moment of passage. Thus, a challenge is inherently "facial," and cannot turn on any subsequent facts. The who (legislature) dictates the when (moment of enactment), which in turn dictates the structure of judicial review (facial) and thus the nature of the doctrinal test (lex ipsa loquitur). A state legislature violates the Ex Post Facto Clause when it passes a law that is, in some sense, retroactive, on its face.
161. See Rosenkranz, supra note 3, at 1235-38.
162. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 248 (1833) (emphasis added).
163. U.S. Const. art. I, § 10, cl. 1.
164. See 1 Blackstone, supra note 89, at 249 (stating that it was "the king's prerogative to make treaties"); id. at 243 ("[T]he king... may make what treaties... he pleases...."); id. at 244 ("[T]he king may make a treaty."); The Federalist No. 47 (James Madison), supra note 2, at 302 ("[In Great Britain, the King] alone has the prerogative of making treaties with foreign sovereigns....").
165. U.S. Const. art. II, § 2, cls. 1-2 ("The President. shall have power, by and with the Advice and Consent of the Senate, to make Treaties.").
166. See, e.g., S.C. Const. of 1776, art. XXVI ("That the president and commander-in-chief shall have no power to make war or peace, or enter into any final treaty, without the consent of the general assembly and legislative council.").
167. U.S. Const. art. I, § 10, cl. 1.
168. See supra note 107.
169. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 248 (1833).
170. Id. at 250.
171. U.S. Const. amend. XIV, § 4 (emphasis added).
172. Id. amend. XIV, § 1; see Cong. Globe, 42d Cong., 1st Sess. app. 84 (1871); Amar, supra note 5, at 163-65.
173. See U.S. Const. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added)).
174. See, e.g., Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954) ("We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states." (emphasis added) (footnote omitted)).
175. See generally Amar, supra note 5.
176. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833).
177. Rosenkranz, supra note 3, at 1253.
178. Id. at 1255.
179. Id.
180. See id. at 1250-57.
181. See id. at 1257-63.
182. 494 U.S. 872 (1990); see Rosenkranz, supra note 3, at 1263-68.
183. See Rosenkranz, supra note 3, at 1268-73.
184. See supra Part I.A.
185. U.S. Const. amend. III.
186. See Custer Cnty. Action Ass'n v. Garvey, 256 F.3d 1024, 1043 (10th Cir. 2001) ("Judicial interpretation of the Third Amendment is nearly nonexistent."). Apparently, only two circuit court cases have analyzed the Third Amendment in depth. See id. at 1042-44 (rejecting claim of property owners that military flights over their property would constitute an unconsented military occupation in violation of the Third Amendment, on the ground that property owners do not have a sufficient property interest in airspace to prevent aircraft flights);
187. Engblom v. Carey, 677 F.2d 957, 961-64 (2d Cir. 1982) (sustaining, against summary judgment motion, a Third Amendment claim of striking prison workers displaced from their prison-provided residences by National Guardsmen, on the ground that an issue of material fact existed regarding the prison workers' tenancy interests in the residences).
188. See 381 U.S. 479, 484 (1965) ("The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.... The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy." (citation omitted)).
189. See, e.g., Amar, supra note 5, at 62 ("In today's world, lawyers, scholars, and judges are wont to link the Third Amendment to the Fourth rather than to the Second, despite the fact that no state constitution or convention paired antiquartering and antisearch clauses. A computer check of Supreme Court citations to the Third Amendment since Youngstown reveals seven attempts to associate the amendment with privacy and only one (dissenting) invocation of the amendment in a context involving alleged military overreaching.");
190. Morton J. Horwitz, Is the Third Amendment Obsolete?, 26 Val. U. L. Rev. 209 (1991) ("[N]o one cares about the Third Amendment; no one even has any interest in perpetuating its memory. For the record, many of my colleagues, after learning that I was to speak on the Third Amendment, sheepishly asked me what the Third Amendment is.");
191. Josh Dugan, Note, When Is a Search Not a Search? When It's a Quarter: The Third Amendment, Originalism, and NSA Wiretapping, 97 Geo. L.J. 555-557 (2009) (surveying scholarly works on the Third Amendment and finding the arguments "can be divided roughly into two categories: those that accept the basic assumption that quartering was conceived of as a very narrow, substantive protection but that seek to broaden its applications by examining the surrounding clauses in the Third Amendment, and those that present the Amendment as having only symbolic value" (footnote omitted)).
192. U.S. Const. amend. III.
193. Id. art. I, § 9, cl. 7 (emphasis added).
194. Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937) ("[The Appropriations Clause] was intended as a restriction upon the disbursing authority of the Executive department.").
195. U.S. Const. art. I, § 8, cls. 1, 18 (emphasis added).
196. Id. amend. I (emphasis added).
197. Id. art. I, § 9, cl. 3 (emphasis added).
198. Barron v. Baltimore, 224 U.S. (7 Pet.) 243, 247 (1833) (the passive-voice limitations on power "are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons and for different purposes").
199. U.S. Const. art. II, § 2, cl. 1.
200. See, e.g., Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) ("As commander-in-chief, [the President] is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy.").
201. U.S. Const. art. II, § 2, cl. 1.
202. Id. art. I, § 8, cl. 11.
203. Id. art. I, § 8, cl. 14.
204. See The Federalist No. 69 (Alexander Hamilton), supra note 2 at 417-18 ("The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.");
205. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425-1496 (1987) ("In England, the King theoretically had the power both to declare war and to command troops. By contrast, the Constitution split these powers between legislature and executive. The former could declare war, but the latter would serve as commander-in-chief. Similarly, Congress could lay down 'rules for the government and regulation' of military forces, but the President would execute these rules.").
206. See Amar, supra note 5, at 267 ("The Third. stood as a separation-of-powers provision, requiring legislative authorization of troop quartering in wartime.").
207. See infra Part II.E.
208. See Rosenkranz, supra note 3, at 1250-73.
209. Jordan C. Budd, A Fourth Amendment for the Poor Alone: Subconstitutional Status and the Myth of the Inviolate Home, 85 Ind. L.J. 355-360 (2010) ("The Fourth Amendment's protection against unreasonable searches and seizures, as well as the Third Amendment's bar against the quartering of soldiers in private houses, reflect a foundational commitment to the 'fierce protection of the inner sanctum of the home'." (citation omitted));
210. Darrell A.H. Miller, Guns as Smut: Defending the Home-Bound Second Amendment, 109 Colum. L. Rev. 1278-1304 (2009) (comparing the Third and Fourth Amendment's protection of the home); Dugan, supra note 153 (arguing that the Third and Fourth Amendments operate in parallel, regulating intrusions by military and civil agents, respectively).
211. See generally Amar, supra note 5, at 62 ("In today's world, lawyers, scholars, and judges are wont to link the Third Amendment to the Fourth.").
212. Amar, supra note 5, at 62 ("To be sure, there is an important connection between the Third and Fourth Amendments. Both explicitly protect 'houses'-above and beyond all other buildings-from needless and dangerous intrusions by governmental officials.").
213. U.S. Const. amend. IV.
214. See United States v. Grubbs, 547 U.S. 90, 98 (2006) (referring to searches as "ex-ercise[s] of executive power").
215. U.S. Const. art. II, § 3.
216. E.g., Controlled Substances Act § 404, 21 U.S.C. § 844 (2006) ("It shall be unlawful for any person knowingly or intentionally to possess a controlled substance.").
217. See City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) ("Absent a sufficient likelihood that he will again be [seized] in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.");
218. United States v. Salvucci, 448 U.S. 83, 85 (1980) ("Today we hold that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated." (emphasis added)); Rakas v. Illinois, 439 U.S. 128, 134 (1978) ("A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed.").
219. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 391 (1971) (emphasis added).
220. United States v. Leon, 468 U.S. 897, 906 (1984) (quoting United States v. Calan-dra, 415 U.S. 338, 354 (1974)); cf. Byars v. United States, 273 U.S. 28, 33 (1927) (holding the character of a search is determined at the moment of execution, rather than at the moment resulting evidence is introduced).
221. Sibron v. New York, 392 U.S. 40, 59 (1968).
222. Marshall v. Barlow's, Inc., 436 U.S. 307, 325 (1978) (emphasis added).
223. Cf. Illinois v. Krull, 480 U.S. 340, 351 (1987) ("There is no evidence suggesting that Congress... [has] enacted a significant number of statutes permitting warrantless administrative searches violative of the Fourth Amendment." (emphasis added)). A statute might purport to permit an unconstitutional search, but it is the search itself, not the statute, that is "violative of the Fourth Amendment."
224. Cong. Research Serv., supra note 103, at 59;
225. Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 108-17, at 2121-22, 2146 (Johnny H. Killian et al. eds., 2004). 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 id. at 630 ("[T]he Fourth and Fifth Amendments run almost into each other.").
226. U.S. Const. amend. IV.
227. See, e.g., Mincey v. Arizona, 437 U.S. 385, 390 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); Chimel v. California, 395 U.S. 752, 762 (1969) ("[W]e emphasized that 'the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure....'" (quoting Terry v. Ohio, 392 U.S. 1, 20 (1968))); Johnson v. United States, 333 U.S. 10, 14-15 (1948).
228. Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757-72 (1994) [hereinafter Amar, Fourth Amendment] ("The Amendment's Warrant Clause does not require, presuppose, or even encourage warrants-it limits them. Unless warrants meet certain strict standards, they are per se unreasonable. The Framers did not exalt warrants, for a warrant was issued ex parte by a government official on the imperial payroll and had the purpose and effect of precluding any common law trespass suit the aggrieved target might try to bring before a local jury after the search or seizure occurred.");
229. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131-1179 (1991) [hereinafter Amar, Bill of Rights] ("Because juries could be trusted far more than judges to protect against government overreaching., warrants were generally disfavored. Judges and warrants are the heavies, not the heroes, of our story.").
230. Most of the Bill of Rights is written in the passive voice, thus eliding the by whom question. The Warrant Clause is actually an even more cryptic grammatical formulation. (It is not, strictly speaking, written in the passive voice; the passive voice formulation would be "no warrants shall be issued....").
231. See Garner, supra note 17, at 612 ("The unfailing test for passive voice is this: you must have a be-verb (or get) plus a past participle (usually a verb ending in -ed)."). "Issue" is an ergative verb, "a verb that can be used (1) in the active voice with a normal subject (actor) and object (the thing acted on)... [e.g., 'the judge issued the warrant']; (2) in the passive voice, with the recipient of the verb's action as the subject of the sentence... [e.g., 'the warrant was issued by the judge']; or (3) in what one textbook called 'the third way,' active in form but passive in sense... [e.g., 'the warrant issued']."
232. Id. at 314. In the Fourth Amendment, the verb "to issue" is used in this mysterious third way. Cf. id. at 315 ("[T]he ergative verb eliminates the actor altogether.... It may be a device to hide the actor... or even to create mystery...."). The question posed by this formulation is issue from whom? Note
233. Amar, Fourth Amendment, supra note 185, at 772.
234. Id.
235. Id.
236. Id. at 779.
237. Id. at 780 (emphasis added).
238. See Amar, Bill of Rights, supra note 185, at 1178-79 ("[A] warrant, if strictly complied with, would act as a sort of declaratory judgment whose preclusive effect could be subsequently pled in any later damage action. A lawful warrant, in effect, would compel a sort of directed verdict for the defendant government official in any subsequent lawsuit for damages.").
239. U.S. Const. art. II, § 1, cl. 1 (emphasis added).
240. Id. art. II, § 3.
241. See The Federalist No. 51 (James Madison), supra note 2, at 322 ("[I]t is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.").
242. See The Federalist No. 70 (Alexander Hamilton), supra note 2, at 424 ("Those politicians and statesmen who have been the most celebrated for the soundness of their principles and for the justice of their views, have declared in favor of a single Executive.... That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.").
243. U.S. Const. art II, § 2, cl. 1 (emphasis added) ("[H]e may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices....").
244. See Morrison v. Olson, 487 U.S. 654, 681-82 n.20 (1988) ("[F]ederal courts and judges have long performed a variety of functions that... do not necessarily or directly involve adversarial proceedings within a trial or appellate court. For example,... [f]ederal courts... participate in the issuance of search warrants,... which may require a court to consider the nature and scope of criminal investigations on the basis of evidence or affidavits submitted in an ex parte proceeding.").
245. The answer to the when question follows. A judicial officer violates the second clause of the Fourth Amendment at the moment he issues an impermissible warrant. A challenge under this clause may well be ripe immediately thereafter, and the target of the warrant might well have standing, even before the search. Confusion on all these points was recently on full display in Washington, D.C.
246. See Ord v. District of Columbia, 573 F. Supp. 2d 88 (D.D.C. 2008), rev'd, 587 F.3d 1136 (D.C. Cir. 2009). The district court in Ord held that only actual searches and seizures can violate the Fourth Amendment-the mere issuance of a warrant does not. The D.C. Circuit disagreed; it correctly held that the mere issuance of a warrant might violate the Fourth Amendment's separate Warrant Clause. Similarly, the district court held that Ord lacked standing to contest the issuance of a warrant, and that the case would not ripen until an actual seizure occurred.
247. Again, the D.C. Circuit disagreed; it correctly held that mere issuance of a warrant might give rise to a cognizable injury, justiciable immediately. Yet it was Ord himself who sowed the seeds of this confusion. In his complaint, he identified the wrong constitutional subject: "[C]laiming injury from the arrest warrant, Ord... [sought] damages for a Fourth Amendment violation under 42 U.S.C. § 1983.... Ord alleged that [Metropolitan Police Department] officers filed the affidavit in support of the warrant in bad faith and without probable cause." 587 F.3d at 1139 (emphasis added). But the Warrant Clause does not prohibit law enforcement agents from seeking illegitimate warrants; it prohibits judges from issuing them.
248. See United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 316-17 (1972) ("Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates."); see also The Federalist No. 47 (James Madison), supra note 2, at 303 ("Were [the power of judging] joined to the executive power, the judge might behave with all the violence of an oppressor." (quoting Montesquieu, Spirit of the Laws 181 (1748))).
249. At one point, Akhil Amar appears to conflate them. He writes: "Even if all the minimum prerequisites spelled out in the Warrant Clause are met, a warrant is still unlawful, and may not issue, if the underlying search or seizure it would authorize would be unreasonable." Amar, Fourth Amendment, supra note 185, at 774. This is not quite right. A judge may issue such a warrant, consistent with the second clause of the Fourth Amendment. But if the President executes such a warrant with an unreasonable search, then he thereby violates the first clause of the Fourth Amendment.
250. See id. ("[A]ny official who searched or seized could be sued by the citizen target in an ordinary trespass suit-with both parties represented at trial and a jury deciding between the government and the citizen. If the jury deemed the search or seizure unreasona-ble-and reasonableness was a classic jury question-the citizen plaintiff would win and the official would be obliged to pay (often heavy) damages." (footnote omitted)); see also Bi-vens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (inferring a cause of action against federal officials for violations of the Fourth Amendment).
251. See Amar, Fourth Amendment, supra note 185, at 781 (suggesting that the issuance of a judicial warrant should shift liability from the searcher to the issuer of the warrant).
252. U.S. Const. art. II, § 1, cl. 1.
253. Id. art. II, § 3.
254. See Statute Limiting the President's Auth. to Supervise the Dir. of the Ctrs. for Disease Control in the Distrib. of an AIDS Pamphlet, 12 Op. O.L.C. 47, 48 (1988) ("As head of a unitary executive, the President controls all subordinate officers within the executive branch. The Constitution vests in the President of the United States 'The executive Power,' which means the whole executive power.");
255. id. ("[The President] is solely responsible for supervising and directing the activities of his subordinates in carrying out executive functions. Any attempt by Congress to constrain the President's authority to supervise and direct his subordinates in this respect, violates the Constitution.");
256. Christopher S. Yoo, Steven G. Calabresi & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 Iowa L. Rev. 601-607 (2005) ("[T]hree devices [are] generally viewed as necessary to any theory of the unitary executive: the president's power to remove subordinate policy-making officials at will, the president's power to direct the manner in which subordinate officials exercise discretionary executive power, and the president's power to veto or nullify such officials' exercises of discretionary executive power.").
257. U.S. Const. amend. V.
258. 60 U.S. (19 How.) 393 (1857).
259. See supra text accompanying notes 97-115.
260. 60 U.S. (19 How.) at 450 (emphasis added).
261. Steven G. Calabresi & Livia Fine, Two Cheers for Professor Balkin's Originalism, 103 Nw. U. L. Rev. 663-700 (2009) ("Dred Scott was nothing less than the Supreme Court's first venture in the enterprise known today as substantive due process.");
262. Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555-1559 (2004) ("Dred Scott proved to be a pretty good paradigm for the future development of what we call substantive due process.").
263. John Hart Ely, Democracy and Distrust 18 (1980) ("Familiarity breeds inattention, and we apparently need periodic reminding that 'substantive due process' is a contradiction in terms-sort of like 'green pastel redness.'").
264. U.S. Const. art. I, § 9, cl. 7 (emphasis added).
265. Id. amend. III (emphasis added).
266. Id. amend. V (emphasis added); see also id. amend. XIV, § 1.
267. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646 (1952) (Jackson, J., concurring) (omissions in original) (footnote omitted).
268. David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 272 (1985) ("On its face the term 'due process' seemed to speak of procedural regularity."); id. ("[C]onsiderable historical evidence supports the position that 'due process of law' was a separation-of-powers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law." (emphasis added)).
269. See supra Part II.B.
270. See supra Part II.C.
271. The Court has approved some deprivations by executive adjudication. See, e.g., Crowell v. Benson, 285 U.S. 22, 45-49 (1932). But even in these cases, the Court generally emphasizes the availability of (at least some) Article III judicial review. See id. at 45-46 ("Rulings of the deputy commissioner upon questions of law are without finality. So far as [they] are concerned, full opportunity is afforded for their determination by the Federal courts.");
272. id. at 48 ("An award not supported by evidence in the record is not in accordance with law."); see also Hamdi v. Rumsfeld, 542 U.S. 507, 554-55 (2004) (Scalia, J., dissenting) ("The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.");
273. Rasul v. Bush, 542 U.S. 466, 474 (2004) ("Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint." (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 218-19 (1953) (Jackson, J., dissenting))).
274. See generally Fallon et al., supra note 8, at 348 ("A final
275. See The Federalist No. 47 (James Madison), supra note 2, at 303 ("Were [the power of judging] joined to the executive power, the judge might behave with all the violence of an oppressor." (quoting Montesquieu, The Spirit of Laws 181 (1748))).
276. See supra note 217.
277. U.S. Const. amend. V.
278. See Stop the Beach Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., 130 S. Ct. 2592, 2601-10 (2010).
279. Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 494 (1987) (emphasis added).
280. Id. at 495-96 ("Petitioners thus face an uphill battle in making a facial attack on the Act as a taking. The hill is made especially steep because petitioners have not claimed, at this stage, that the Act makes it commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania." (emphasis added)). But see Rosen-kranz, supra note 3, at 1230-35.
281. See, e.g., Guggenheim v. City of Goleta, 582 F.3d 996, 1014 (9th Cir. 2009) (By-bee, J.) ("The fact that the Park Owners have characterized their facial challenge under Penn Central creates further complications. In a typical Penn Central claim, the court must consider factors that will usually not be found in the text of the statute, such as the economic impact on the claimant and the claimant's investment-backed expectations.
282. Nevertheless, when adjudicating a facial challenge, the court must be careful not to simply look at 'the effect of the application of the regulation in specific circumstances.' The Park Owner's facial Penn Central claim requires us to address this apparent paradox: we must confront the question of whether a facial challenge under Penn Central is actually a viable legal claim; and ifwe determine that it is, we must then consider what evidence the Park Owners may present to prove their claim." (citation omitted)).
283. George Tucker, Blackstone's Commentaries app. at 305-06 (Philadelphia, William Young Birch & Abraham Small 1803).
284. See, e.g., United States v. Pewee Coal Co., 341 U.S. 114, 115, 121-22 (1951) (participating Justices agreeing, in separate opinions, that a temporary physical seizure of coal plants pursuant to executive order, but without legislative authorization, constituted a taking);
285. John F. Hart, Land Use Law in the Early Republic and the Original Meaning of the Takings Clause, 94 Nw. U. L. Rev. 1099-1101 (2000);
286. William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782-803 (1995).
287. See supra Part I.B.
288. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 631-32 (1952) (Douglas, J., concurring) (emphasis added) (footnotes omitted).
289. U.S. Const. amend. VI.
290. Id. art. III, § 2, cl. 1.
291. Id. art. III, § 2, cl. 3.
292. See Amar, supra note 5, at 105 ("But why, then, was the jury trial language of the amendment necessary?... The historical answer is unequivocal: to guarantee, among other things, a right to a trial by a jury from the 'district' of the crime. Article III had not specified jury trial of 'the vicinage,' as did the prevailing common law, and many Anti-Federalists wanted an explicit guarantee that juries would be organized around local rather than statewide communities." (citing 3 Debates on the Adoption of the Federal Constitution 545, 568-69, 678-79 (Jonathan Elliot ed., Ayer Co. reprt. ed. 1987) (1836) (remarks of Patrick Henry and William Grayson in Virginia ratification debates); 4 id. at 150, 154 (remarks of Joseph McDowall and Samuel Spencer in North Carolina ratifying convention); 2 id. at 400 (remarks of Thomas Tredwell in New York ratifying convention); id. at 109-10 (remarks of Mr. Holmes in Massachusetts ratifying convention);
293. Edward Dumbauld, The Bill of Rights and What It Means Today 183-200 (1957) (declarations of rights of Virginia, New York, and North Carolina ratifying conventions);
294. Cecelia M. Kenyon, The Antifederalists 36-51 (1985) (report of Pennsylvania convention minority);
295. Letters from the Federal Farmer (II-IV), reprinted in 2 The Complete Anti-Federalist 230-249 (Herbert J. Storing ed., 1981);
296. Letters of Agrippa (V), reprinted in 4 The Complete Anti-Federalist, supra, at 77-79));
297. Nicholas Quinn Rosenkranz, Condorcet and the Constitution: A Response to The Law of Other States, 59 Stan. L. Rev. 1281-99 (2007) ("[Article III] guarantees a jury, and a local trial-but, by its terms, it does not guarantee a local jury. This oversight was evidently considered so serious that it was immediately corrected by the Sixth Amendment, which guarantees a 'trial[] by an impartial jury of the State and district wherein the crime shall have been committed.'" (second alteration in original) (citation omitted)).
298. Perhaps Congress could violate the Jury Trial Clause by purporting to preside over a nonjury trial itself (rather than merely authorizing such a trial). Cf. U.S. Const. art. III, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...." (emphasis added)). But the key point is that such a congressional trial would be unconstitutional anyway, regardless of the Sixth Amendment, because Congress is nowhere granted such a power. By contrast, the Jury Trial Clause cuts across and restrains a power that is otherwise vested in the judiciary.
299. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (holding that federal courts do not have jurisdiction to create federal common law crimes).
300. 543 U.S. 220 (2005).
301. See, e.g., id. at 250 ("[T]his provision of the statute, along with those inextricably connected to it, are constitutionally invalid, and fall outside of Congress' power to enact.").
302. See id. at 265 ("We do not doubt that Congress, when it wrote the Sentencing Act, intended to create a form of mandatory Guidelines system. But, we repeat, given today's constitutional holding, that is not a choice that remains open. Hence we have examined the statute in depth to determine Congress' likely intent in light of today's holding." (citation omitted)).
303. See id. ("In our view, it is more consistent with Congress' likely intent in enacting the Sentencing Reform Act (1) to preserve important elements of that system while severing and excising two provisions than (2) to maintain all provisions of the Act and engraft today's constitutional requirement onto that statutory scheme." (citation omitted)).
304. See id. at 283 (Stevens, J., dissenting) ("When a provision of a statute is unconstitutional, that provision is void, and the Judiciary is therefore not bound by it in a particular case. Here, however, the provisions the majority has excised from the statute are perfectly valid: Congress could pass the identical statute tomorrow and it would be binding on this Court so long as it were administered in compliance with the Sixth Amendment.
305. Because the statute itself is not repugnant to the Constitution and can by its terms comport with the Sixth Amendment, the Court does not have the constitutional authority to invalidate it." (emphasis added) (citation omitted)); id. at 272-73 ("[I]t is appropriate to explain how the violation of the Sixth Amendment that occurred in Booker's case could readily have been avoided without making any change in the Guidelines.... [I]f the two facts, which in this case actually established two separate crimes, had both been found by the jury, the judicial factfinding that produced the actual sentence would not have violated the Constitution." (emphasis added)).
306. See id. at 314 (Thomas, J., dissenting in part) ("In effect, [Booker] contends that the Guidelines supporting the enhancements, and the Sentencing Reform Act of 1984 (SRA) that makes the Guidelines enhancements mandatory, were unconstitutionally applied to him." (emphasis added)).
307. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 179 (1803).
308. Id. at 179-80; see also James Madison, Report on the Virginia Resolutions (1800), reprinted in 4 State Convention Debates, at 546, 549 ("[T]he judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution....").
309. See, e.g., U.S. Const. art. III, § 3, cl. 1 ("No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."); Marbury, 5 U.S. (1 Cranch) at 179-80 ("Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from.").
310. See 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));
311. Alexander M. Bickel, The Least Dangerous Branch 1 (1962) ("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)).
312. Nicholas Quinn Rosenkranz, The Subjects of the Constitution (forthcoming 2012).
313. Rosenkranz, supra note 3, at 1250.
314. Id. at 1255.
315. Id.
316. Id. at 1267.
317. Id. at 1268.
318. 494 U.S. 872, 879 (1990) ("[T]he right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring in the judgment))); see Rosenkranz, supra note 3, at 1263-68.
319. See, e.g., Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (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, 346-47 (1936) (Brandeis, J., concurring))); 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....").
320. See Hein v. Freedom from Religion Found., 551 U.S. 587, 609 (2007) (plurality opinion) ("We have declined to lower the taxpayer standing bar in suits alleging violations of any constitutional provision apart from the Establishment Clause."); Salerno, 481 U.S. at 745 ("[W]e have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."); Rosenkranz, supra note 3, at 1251, 1257-58.
321. U.S. Const. amend. XIV, § 1.
322. McDonald v. City of Chicago, 130 S. Ct. 3020, 3034-35 (2010) ("The Court [in the modern era] also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights. Only a handful of the Bill of Rights protections remain unincorporated." (footnote omitted)).
323. See, e.g., Amar, supra note 5, at 163-74;
324. Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 195-203 (2004); Ely, supra note 212, at 22-30;
325. Laurence H. Tribe, American Constitutional Law § 7-6 (3d ed. 2000);
326. Akhil Reed Amar, Substance and Method in the Year 2000, 28 Pepp. L. Rev. 601-631 n.178 (2001) ("Virtually no serious modern scholar-left, right, and center-thinks that [the SlaughterHouse Cases interpretation] is a plausible reading of the Amendment.");
327. Richard L. Aynes, Ink Blot or Not: The Meaning of Privileges and/or Immunities, 11 U. Pa. J. Const. L. 1295-1310 (2009);
328. Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291-318 (2007);
329. Brief of Constitutional Law Professors as Amici Curiae in Support of Petitioners at 1, McDonald, 130 S. Ct. 3020 (No. 08-1521) ("Amici submit this brief to bring to the foreground of this case a remarkable scholarly consensus and well-documented history that shows that the Privileges or Immunities Clause of the Fourteenth Amendment was intended to protect substantive, fundamental rights....").
330. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 249 (1833) (emphasis added).
331. Id. at 250.
332. See Amar, supra note 5, at 182-83 (describing the way the text of the Fourteenth Amendment tracks the language in Barron and noting that "[i]n a speech in January 1867, while the amendment was pending in the states, Bingham again reminded his audience that his amendment would overrule Barron").
333. By contrast, the states ratified the First Amendment promptly after the ratification of the Constitution. Indeed, proposing the Bill of Rights was at the top of the first Congress's agenda. So there was no need to prohibit the enforcement of speech-infringing laws already on the books, because there were no speech-infringing laws already on the books. Thus: "Congress shall make no law...."
334. See United States v. Raines, 362 U.S. 17, 25 (1960) ("It is... established as a fundamental proposition that every state official, high and low, is bound by the Fourteenth and Fifteenth Amendments.").
335. William J. Brennan, Why Have a Bill of Rights?, 26 Val. U. L. Rev. 1-12 (1991) ("[The] salient purpose [of a bill of rights] is. to protect minorities. from the passions or fears of political majorities.").
336. See McDonald v. City of Chicago, 130 S. Ct. 3020, 3034-35 (2010) ("[I]ncorporated Bill of Rights protections 'are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.'" (quoting Malloy v. Hogan, 378 U.S. 1, 10 (1964))).
337. See supra note 115.
338. See, e.g., id. at 46 ("As with our First Amendment, the text of the Second is broad enough to protect rights of private individuals and discrete minorities; but, as with the First, the Second's core concerns are populism and federalism. At heart, the amendment reflects a deep anxiety about a potentially abusive federal military, an anxiety also reflected in the Third Amendment." (emphasis added));
339. id. at 88 ("The jury [in the Fifth, Sixth, and Seventh Amendments] was not simply a popular body but a local one as well.... [G]rand and petit jurors could interpose themselves against central tyranny...." (emphasis added)). See generally id. at xii ("A close look at the Bill reveals structural ideas tightly interconnected with language of rights; states' rights and majority rights alongside individual and minority rights...." (emphasis added)).
340. See id. at xiv ("But not all of the provisions of the original Bill of Rights were indeed rights of citizens. Some instead were at least in part rights of states, and as such, awkward to fully incorporate against states.").
341. Amar briefly adverts to the possibility of refined subjects, but only in his analysis of the First Amendment. See id. at 43 ("Though the language of the Fourteenth Amendment at first seems to track that of the First Amendment... the Fourteenth focuses not just on making laws but on enforcing them, which may suggest that we should look [for violations] not just at the time of enactment but at the moment of application, too.").
342. U.S. Const. art. I, § 9, cl. 3.
343. 32 U.S. (7 Pet.) 243, 249 (1833).
344. U.S. Const. art. I, § 1 (emphasis added).
345. Id. art. I, § 8, cl. 18 (emphasis added).
346. Id. art. I, § 7 (emphasis added).
347. Id. art. I, § 1.
348. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472 (2001).
349. See U.S. Const. art. IV, § 4.
350. Cf. Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 568 (1916) ("[S]o far as the state had the power to do it, the referendum constituted a part of the state constitution and laws and was contained within the legislative power.").
351. Jed Rubenfeld, The Paradigm-Case Method, 115 Yale L.J. 1977-1986 (2006) ("For any particular constitutional provision, some Application Understandings may have played a special, central, definitive role at the time of enactment. Many of our constitutional rights were enacted with core original purposes. These foundational Application Understandings are the ones I have been referring to so far. And they not only are intact in contemporary constitutional law. They have, more significantly, served as paradigm cases, shaping the doctrine as exemplary holdings around which the rest of the case law is organized.").
352. Ross v. Oregon, 227 U.S. 150, 162-63 (1913).
353. U.S. Const. amend. I.
354. Id. art. IV, § 4; see also Bush v. Gore, 531 U.S. 98, 112 (2000) (Rehnquist, C.J., concurring) ("[I]n ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law."); Dreyer v. Illinois, 187 U.S. 71, 83-84 (1902).
355. The Constitution singles out branches of state government only when granting specific powers or imposing specific duties, generally only by way of specifying who will represent the state in intergovernmental matters. See, e.g., U.S. Const. art. I, § 2, cl. 4 ("When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." (emphasis added));
356. id. art. II, § 1, cl. 2 ("Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...." (emphasis added)); id. art. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence." (emphasis added)).
357. See U.S. Const. art. I, § 10, cl. 1 ("No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." (emphasis added));
358. id. art. I, § 10, cl. 2 ("No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress." (emphasis added));
359. id. art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." (emphasis added)); id. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (emphasis added));
360. id. amend. XIV, § 4 ("[N]either the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave...." (emphasis added)); id. amend. XV, § 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." (emphasis added)); id. amend. XIX ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex." (emphasis added));
361. id. amend. XXIV, § 1 ("The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax." (emphasis added)); id. amend. XXVI, § 1 ("The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age." (emphasis added)).
362. See Amar, supra note 5, at 148 ("To a nineteenth-century believer in natural rights, the Bill [of Rights] was not simply an enactment of We the People as the Sovereign Legislature bringing new legal rights into existence, but rather a declaratory judgment by We the People as the Sovereign High Court that certain natural or fundamental rights already existed.").
363. See Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 247 (1833) (emphasis added).
364. U.S. Const. art. I, § 9, cl. 3.
365. Id. art. I, § 10, cl. 1.
366. Id. art. IV, § 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government.").
367. U.S. Const. amend. I.
368. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring in the judgment) ("The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments."); Amar, supra note 5, at 32 ("Its mandate that Congress shall make no law 'respecting an establishment of religion' also prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments.").
369. U.S. Const. amend. XIV, § 1 (emphasis added).
370. Elk Grove Unified Sch. Dist., 542 U.S. at 49 (Thomas, J., concurring in the judgment) ("The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.");
371. Amar, supra note 5, at 33-34 ("[T]he nature of the states' establishment clause right against federal disestablishment makes it quite awkward to mechanically 'incorporate' the clause against the states via the Fourteenth Amendment. Incorporation of the free-speech clause against states does not negate state legislators' own First Amendment rights to freedom of speech in the legislative assembly. But incorporation of the establishment clause has precisely this kind of paradoxical effect; to apply the clause against a state government is precisely to eliminate its right to choose whether to establish a religion-a right clearly confirmed by the establishment clause itself. [H]ow can such a local option clause be mechanically incorporated against localities, requiring them to pass no laws (either way) on the issue of-'respecting'-establishment?").
372. U.S. Const. amend. I.
373. Id. amend. XIV.
374. Id. amend. I.
375. Id. amend. XIV.
376. Cf. Amar, supra note 5, at 43 ("[P]erhaps a sensitive reading of the text, history, and structure of the Reconstruction Amendment calls for a broader protection [than the First Amendment's] of some forms of religious worship, even against neutral, secular laws.").
377. U.S. Const. amend. XIV.
378. Id. amend. I.
379. Id. amend. XIV.
380. See supra Part III.A.
381. Rosenkranz, supra note 3, at 1255.
382. A harder question is whether this refinement, in turn, refines the substance of the free speech or free exercise right. On the one hand, if the Fourteenth Amendment binds state executive officials, then one might be tempted to say, for example, that a state policeman cannot enforce a religion-neutral law in a manner that abridges the free exercise of religion.
383. See Amar, supra note 5, at 43 ("[T]he Fourteenth focuses not just on making laws but on enforcing them, which may suggest that we should look at the clash between church and state not just at the time of enactment but at the moment of application, too. And perhaps some religious practices that affect only the religious community itself (with no externalities imposed on religious nonbelievers) might be deemed 'privileges' and 'immunities'-islands of institutional privacy and communal autonomy against general laws.");
384. McConnell, supra note 8, at 268. On the other hand, though, even under the "enforce[ment]" prong of the Privileges or Immunities Clause, it is the "law," not the enforcement of the law, which must not abridge the freedom of religion: "No State shall... enforce any law which shall abridge [the free exercise of religion]...." It is difficult to see how a religion-neutral law could fit that description. After all, if any such law did, then every law would. See Rosenkranz, supra note 3, at 1266-67.
385. See Amar, supra note 5, at 220 ("For the Third Amendment, a plausible explanation for failure to incorporate is that a proper case never materialized: the right rarely arises in modern litigation.").
386. U.S. Const. art. I, § 8, cls. 12, 14.
387. Id. art. I, § 10, cl. 3.
388. See Amar, supra note 5, at 267 ("The Third... stood as a separation-of-powers provision, requiring legislative authorization of troop quartering in wartime. Th[is] basic fea-ture[] make[s] the Third a poor candidate for unrefined, mechanical incorporation:... surely Reconstructors did not mean to impose every aspect of federal separation of powers onto states.").
389. U.S. Const. amend. IV.
390. See Amar, Fourth Amendment, supra note 185, at 772-73 ("In England, certain Crown executive officials regularly exercised this warrant power. We need only recall the facts of the 1763 English case, Wilkes v. Wood, whose plot and cast of characters were familiar to every schoolboy in America, and whose lessons the Fourth Amendment was undeniably designed to embody.... In Wilkes, a sweeping warrant had been issued by a Crown officer, Secretary of State Lord Halifax.
391. In colonial America, Crown executive officials, including royal Governors, also claimed authority to issue warrants. Well into the twentieth century, states vested warrant-issuing authority in justices of the peace-even when such justices also served as prosecutors...." (footnotes omitted)); see also 4 Blackstone, supra note 89, at 287 ("A warrant may be granted in extraordinary cases by the privy council, or secretaries of state; but ordinarily by justices of the peace." (footnote omitted)).
392. See supra note 202.
393. See id. at 781 (suggesting that the issuance of a judicial warrant should shift liability from the searcher to the issuer of the warrant).
394. U.S. Const. art. II, § 1, cl. 1.
395. See The Federalist No. 70 (Alexander Hamilton) (contrasting the unity of the federal executive with the executive unity "destroyed" by eleven of the thirteen state constitutions); see also Ohio Const. art. III, § 1 ("The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of state, treasurer of state, and an attorney general....");
396. Pa. Const. art. IV, § 1 ("The Executive Department of this Commonwealth shall consist of a Governor, Lieutenant Governor, Attorney General, Auditor General, State Treasurer, and Superintendent of Public Instruction and such other officers as the General Assembly may from time to time prescribe."); Tex. Const. art. IV, § 1 ("The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General.").
397. Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. Chi. L. Rev. 1385-1386 (2008) ("Most states directly elect state attorneys general-as well as numerous other executive officers.");
398. see, e.g., Cal. Const. art. V, § 11 ("The Lieutenant Governor, Attorney General, Controller, Secretary of State, and Treasurer shall be elected at the same time and places and for the same term as the Governor."); Md. Const. art. V, § 1 ("There shall be an Attorney-General elected by the qualified voters of the State, on general ticket... who shall hold his office for four years from the time of his election and qualification, and until his successor is elected and qualified, and shall be re-eligible thereto, and shall be subject to removal for incompetency, willful neglect of duty or misdemeanor in office, on conviction in a Court of Law.");
399. id. art. V, § 3(d) ("The Governor may not employ any additional counsel, in any case whatever, unless authorized by the General Assembly."); N.Y. Const. art. V, § 1 ("The comptroller and attorney-general shall be chosen at the same general election as the governor and hold office for the same term...."); Va. Const. art. V, § 15 ("An Attorney General shall be elected by the qualified voters of the Commonwealth at the same time and for the same term as the Governor; and the fact of his election shall be ascertained in the same manner.... He shall perform such duties and receive such compensation as may be prescribed by law, which compensation shall neither be increased nor diminished during the period for which he shall have been elected. There shall be no limit on the terms of the Attorney General.").
400. See U.S. Const. art. III, § 1 ("The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.").
401. See Republican Party of Minn. v. White, 536 U.S. 765, 785 (2002) ("Starting with Georgia in 1812, States began to provide for judicial election, a development rapidly accelerated by Jacksonian democracy. By the time of the Civil War, the great majority of States elected their judges.");
402. Kurt E. Scheuerman, Comment, Rethinking Judicial Elections, 72 Or. L. Rev. 459-465 (1993) ("Mississippi became the first state to adopt a completely elective judiciary in 1832. New York followed suit in 1846. In the following ten years, fifteen of the existing twenty-nine states amended their constitutions to provide for a popularly elected judiciary. The trend towards an elected judiciary has thus far proven irreversible; every state which entered the union after 1846 has provided for popular election of at least a portion of its judiciary." (footnotes omitted)).
403. In 1868, many state court judges enjoyed only fixed terms and lacked tenure protection. See, e.g., Miss. Const. of 1832, art. IV, §§ 2, 3 (providing limited terms for elected judges); N.Y. Const. of 1846, art. VI, § 2 (same); id. art. VI, § 11 (permitting removal of justices of the supreme court and judges of the court of appeals by concurrent resolution of the legislature).
404. See U.S. Const. amend. XIV, § 2 (reducing state representation "when the right to vote at any election for the choice of... Judicial officers of a State... is denied" (emphasis added)); see also White, 536 U.S. at 783 ("[T]he Due Process Clause of the Fourteenth Amendment... has coexisted with the election of judges ever since it was adopted....").
405. U.S. Const. art. II, § 3.
406. Gregory A. Huber & Sanford C. Gordon, Accountability and Coercion: Is Justice Blind When It Runs for Office?, 48 Am. J. Pol. Sci. 247-58 (2004) (comparing discretionary sentencing in Pennsylvania's elected judges over nine years, and finding that "all judges, even the most punitive, increase their sentences as reelection nears").
407. Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972) (quoting Johnson v. United States, 333 U.S. 10, 14 (1948)); see also Johnson, 333 U.S. at 13-14 ("The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.").
408. Shadwick, 407 U.S. at 353 n.12.
409. See id. at 352 ("Nor need we determine whether a State may lodge warrant authority in someone entirely outside the sphere of the judicial branch.").
410. See, e.g., United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 316-17 (1972) (invalidating certain warrantless wiretaps, and remarking that "Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch" and that "[t]he Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates").
411. See Amar, Fourth Amendment, supra note 185, at 772-73 ("In colonial America, Crown executive officials, including royal Governors, also claimed authority to issue warrants. Well into the twentieth century, states vested warrant-issuing authority in justices of the peace-even when such justices also served as prosecutors...." (footnote omitted)).
412. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833); see supra text accompanying notes 135-37.
413. See Treanor, supra note 229, at 782 ("The original understanding of the Takings Clause of the Fifth Amendment... required compensation when the federal government physically took private property, but not when government regulations limited the ways in which property could be used.").
414. See 1 Tucker, supra note 228, app. at 305-06.
415. See U.S. Const. art. I, § 9, cl. 7; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 631-32 (1952) (Douglas, J., concurring); see also supra Part II.D.2.
416. See Monongahela Navigation Co. v. United States, 148 U.S. 312, 327 (1893) ("By this legislation, Congress seems to have assumed the right to determine what shall be the measure of compensation. But this is a judicial, and not a legislative, question. The legislature may determine what private property is needed for public purposes-that is a question of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry.").
417. Michael B. Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729-57 (2008).
418. U.S. Const. amend. XIV, § 1.