Nick Rosenkranz, Stanford Law Review:
Two centuries after Marbury v. Madison, there remains a deep confusion about quite what a court is reviewing when it engages in judicial review. Conventional wisdom has it that judicial review is the review of certain legal objects: statutes, regulations. But strictly speaking, this is not quite right. The Constitution prohibits not objects but actions. Judicial review is the review of such actions. And actions require actors: verbs require subjects. So before judicial review focuses on verbs, let alone objects, it should begin at the beginning, with subjects. Every constitutional inquiry should begin with a basic question that has been almost universally overlooked. The fundamental question, from which all else follows, is the who question: who has violated the Constitution?
As judicial review is practiced today, courts skip over this bedrock question to get to the more familiar question: how was the Constitution violated? But it makes no sense to ask how, until there is an answer to who. Indeed, in countless muddled lines of doctrine, puzzlement about the predicates of constitutional violation follows directly from more fundamental confusion about the subjects.
Confusion about the who (and, relatedly, the when) of constitutional violation has been the root cause of many of the deepest puzzles of federal jurisdiction — puzzles of ripeness, of standing, of severability, of “facial” and “as-applied” challenges. Simply by focusing attention on this crucial constitutional feature, the subjects of the Constitution, these puzzles may be solved once and for all. And as they are solved, it becomes clear that this approach constitutes a new model of judicial review.
But the implications of this new paradigm are not limited to federal jurisdiction. It turns out that confusion over the deep puzzles of federal jurisdiction has had subtle but profound feedback effects on substantive constitutional doctrine as well. Once these jurisdictional puzzles are solved, the scope of constitutional rights and powers comes into new focus as well. These implications ripple through the most important and controversial doctrines of constitutional law, from the scope of the Commerce Clause to the reach of the First Amendment, from the meaning of equal protection to the content of privileges and immunities, from the nature of due process to the shape of abortion rights.
And all of it derives from nothing more complicated than asking the right first question: who has violated the Constitution?
I’ve discussed intentionalism in legal interpretation at length — and I have made the claim repeatedly that what it is you think you are doing when you interpret is the crucial discovery that intentionalism, properly understood, helps illuminate. Championing a linguistically incoherent notion of language, I’ve argued, lends legitimacy to those who have learned to game a particular interpretive paradigm that replaces the intent of the communicator with that of the receiver as a matter of active choice — while still maintaining that “interpretation” has taken place, and that the communicator’s message “means” what the receivers of that message can plausibly claim it to mean.
In short, I’ve reframed texts-as-objects into texts-as-(implied) subjects, inasmuch as I’ve described textuality itself as a product of signification through the act of intent.
So. The question is, how might Rosenkranz respond to those assertions, do you think?
(via Legal Theory and Volokh by way of sdferr and IP)
So. The question is, how might Rosenkranz respond to those assertions, do you think?
He’ll DELVE.
Rosenkranz is dead.
Or so I heard.
Also, if the Constitution states “Congress shall pass no law” that does X, then if Congress passes a law that does X, the Congress violated the constitution.
If the Consitution states that Congress does not have jurisdiction over Y, and Congress enacts laws or establishes programs the encroach into Y, the Congress has violated the Constitution.
The Executive branch, being similarly constrained by the Constitution, can also violate it.
Given that the Constitution was written to govern the federal government—to delimit, constrain, and define it—then it follows that only the federal government can violate it.
Geez, people. How hard can it be!
So does this mean we get to toss out stingy rehnquist court standing requirements?
*wave*
Hi, meya.
Ooh, lookit! meya has a new handle!
Fess up — who keeps putting quarters in the Whack-A-Troll machine?
Slart – meya has used at least 4 different handles today.
At one web site it is Dred Scott day. SCOTUS found that a man must remain, by federal law, a slave in spite of State laws that forbade it in the places he lived.
Another good day for lawyers and the SCOTUS.
I could a handful of barley and puke a better system of law.
It has not been my lot in life to read very many law review articles, let alone legal filings, S.C. decisions, briefs to the Court and so on. In consequence, I’m thinking, I found myself wishing for a digital computer toggle that could flip from a version of Mr Rozenkranz’s article as here, with notes, citations and the rest of the background matter he provides and a version of his article stripped clean of all that and reduced to the substance.
As to the question of substance, what would Rosenkranz respond, I’d be guessing he’d find them quite agreeable on the whole. For how not? How much of the literature of semiotics and linguistics he’s read we don’t know, but if any goodly part, all the more reason to think he’d grasp what’s going on the more readily. What I wonder is whether his arguments will capture the attention of the generation currently preparing to embark on careers as lawyers and judges and if so, how long it will be before we begin to see his analysis applied in decisions?
sdferr, there’s a trick to reading an article like that, the basis of which is to avoid being sidetracked. The main article is the meal; the footnotes and references are the take-home box, to be savored at some later time over a beer. Once in a great while you find a writer who uses those things, especially footnotes, to make sly jokes, but you have to be familiar with that particular person’s work before it’s worthwhile to expect such entertainment.
As for “…how long it will be before we begin to see his analysis applied in decisions…“, I would expect it to be a year or two after the Winter Olympics are held in Gehenna, with the bobsled team from Tuvalu coming in second. It leads naturally to interpretations that are ‘way too close to what the Framers appear to have intended to be comfortable for any of today’s players.
Regards,
Ric
*
Nope, the subjects of the O!
Baaaaaah…
Rock o bah ma has a way,
With b o l o g n a.
Pass the…
…
mayo, please.
Rochester!
I responded at the other thread, jls. You aren’t quite where you want to be.
I suspect that’s because too much of Frey’s dishonest attempts to reframe intentionalism have slipped into your thought process.
I appreciate your response, as always.
I included the link on this thread because when you said:
“In short, I’ve reframed texts-as-objects into texts-as-(implied) subjects, inasmuch as I’ve described textuality itself as a product of signification through the act of intent.”
You were responding to my earlier proposed Resolution between you and Frey. The link was my retort.
I hope my thought processes haven’t been irreversibly contaminated. I did engage Frey and tried my best to discover his thoughts. We ended up going in circles and pretty much ended up right where we began. The process did raise in my own mind issue about how to assign meaning to group efforts and i have carried those thought back here. Hopefully to good purpose.
Thanks for the education.
Pass the salt, indeed.
Oh, sorry jls. When I wrote “You aren’t quite where you want to be,” I didn’t mean in terms of posting. I meant in terms of your understanding the terminology of intentionalism.
Though the confusion is, of course, interesting.