The Frightening Permissiveness of Rosenkranz’s “The Subjects of the Constitution”

Professor Nicholas Quinn Rosenkranz’s “The Subjects of the Constitution” is a hot, new law review article making the rounds and garnering some well-deserved attention. For those who haven’t read it, and who have even a passing interest in the United States Constitution and judicial review, I heartedly recommend it. Rosenkranz’s article is long, but, as these things go, it’s an easy read. His theory is intriguing and clear and powerful — but it’s also troubling in its permissiveness of broad government action, especially into areas we all agree the government should play no role. Most troubling, his proposed doctrine appears to grant the state the ability to eviscerate the First Amendment, provided Congress is crafty when drafting laws to do so.

Who violates the Constitution?

Rosenkranz’s argument is actually rather simple — and, he claims, simplifying. He sets it out in the paper’s abstract.

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?

The First Amendment begins with “Congress shall make no law…” For Rosenkranz, this means that any First Amendment violation must happen when Congress makes a law. And, given that Congress makes laws before they are enforced, the constitutional violation must occur at the moment of enactment. The First Amendment does not prohibit the President from abridging speech. It is only a prohibition on lawmaking behavior by Congress (hence the active voice construction).

What this means (and Rosenkranz is happy to admit it means) is that the only laws that can violate the First Amendment are those that do so facially. In other words, they are laws that, when the text of them is placed next to the text of the Constitution, a clear violation is apparent. A law that does not abridge freedom of speech on its face, but later does when applied by the President, is not in violation of the First Amendment.

The end of the First Amendment?

This ought to be immediately concerning for those of us to think the courts have done too little to limit the powers of the state within the framework of the Constitution. Under the Rosenkranz doctrine, if Congress enacted a law saying, “Citizens are prohibited from engaging in the act of Holy Communion,” that law would be facially invalid as the text of the law at the time of enactment clearly abridges the free exercise of (the Catholic) religion.

But what if Congress were more subtle? What if it wrote a law that instead read, “Citizens are prohibited from ingesting wine on Sunday mornings, when gathered in groups of more than five and when the wine is ingested in one ounce or smaller amounts as provided by a leader within the group?” Because the law does not facially violate the constitution — it doesn’t mention free exercise of religion, or religion at all — a Catholic could not succeed in a challenge. If the court asking him Rosenkranz’s “who” question, he couldn’t say Congress (the law didn’t violate the constitution at the moment of enactment) and he couldn’t say the President (the First Amendment only prohibits Congress from acting).

Congress employs a lot of smart lawyers to draft its legislation. Should the Supreme Court adopt Rosenkranz’s new doctrine for judicial review, I see no reason why those smart lawyers couldn’t intentionally structure the language of bills to always make them immune to First Amendment challenge. And the problem doesn’t stop with the First Amendment. It cascades through the rest of the Constitution.

Who has rights?

In his refactoring of judicial review, Rosenkranz risks doing away with the very rights the Constitution was created to protect. If it is true that, by nature of being human, we have a right to free expression, then it shouldn’t matter how the government violates that right. Rather, what matters is that a violation occurred and that the violation was at the hands of the government. It seems absurd to think that religious freedom could be trampled and the state could respond with, “Well, sorry, but your right to free exercise only protects you from Congress, not the President’s goon squads.”

These problems exist for the current judicial review doctrine, true. But Rosenkranz’s theory, while potentially clarifying, makes these problems worse. What he has done is grant Congress philosophical grounding for making the type of argument a thug might make when charged with killing a rival. “Don’t look at me,” the thug says. “I didn’t kill that guy — the bullet did.”