Stanford Law Review: Volume 63, Issue 5 - May 2011

Stanford Law Review

May 2011

Stanford Law Review

Volume 63, Issue 5

May 2011

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Cataloging for Volume 63, Issue 5 – May 2011:

ISBN: 1610279700 (ePub)

ISBN-13: 9781610279703 (ePub)

CONTENTS

[Volume 63, Issue 5, May 2011]

ARTICLES

THE OBJECTS OF THE CONSTITUTION,

By Nicholas Quinn Rosenkranz

(63 STAN. L. REV. 1005)

THE LOST ORIGINS OF AMERICAN FAIR EMPLOYMENT LAW: REGULATORY CHOICE AND THE MAKING OF MODERN CIVIL RIGHTS, 1943-1972,

By David Freeman Engstrom

(63 STAN. L. REV. 1071)

NOTES

MEASURING THE EFFECTS OF SPECIALIZATION WITH CIRCUIT SPLIT RESOLUTIONS,

By Eric Hansford

(63 STAN. L. REV. 1145)

THE SUBSTANCE OF PUNISHMENT UNDER THE BILL OF ATTAINDER CLAUSE,

By Anthony Dick

(63 STAN. L. REV. 1177)

PLENARY NO LONGER: HOW THE FOURTEENTH AMENDMENT ‘AMENDED’ CONGRESSIONAL JURISDICTION-STRIPPING POWER,

By Maggie McKinley

(63 STAN. L. REV. 1213)

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EDITORIAL BOARD

VOLUME 63

MASHA GODINA HANSFORD

President

SHELTON L. ABRAMSON

JANINE ANN WETZEL

Executive Editors

LAURA E. CONNIFF

ERIC HANSFORD

Managing Editors

DMITRY KARSHTEDT

Senior Symposium Editor

JENNIFER CLARK

Senior Development Editor

JENNIFER A.L. SHELDON-SHERMAN

Senior Notes Editor

ZAC ALEXANDER COX

Senior Production Editor

JOSH PATASHNIK

Senior Articles Editor

JONATHAN JAMES GOODWIN

Senior Finance Editor

Projects Editor

ALEX REESE

Technical Managing Editor

COLLIN P. WEDEL

Symposium Editors

ZACHARY ORLO JONES CARPENTER

ANYU FANG

JUSTIN T. GOODWIN

MATT KELLOGG

ALLISON M.E. PEDRAZZI

ELIZABETH LAUREN VAN PELT

Development Editors

ELISSA LINDEN GYSI

HAYLEY HUNT HEDGES

BENJAMIN T. JACKSON

KEVIN C. LO

PRIYA NAIK

NORMAN ANDREW SFEIR

JOHN CARDENAS WILLIAMS

Notes Editors

KATHERINE BEARMAN

MICHAEL CAESAR

LOREN A. CRARY

WILL EDELMAN

MATTHEW XAVIER ETCHEMENDY

MORGAN A. GALLAND

SOPHIA LIN LAKIN

MICHAEL MILLER

ERIN MOHAN

JESSICA I. ROTHSCHILD

THOMAS M. SPAHN

Articles Editors

DANIEL WILLIAM BELL

ELIZABETH BOGGS

GAYLE JENNIFER DENMAN

ALEXANDRA L. LAMPERT

KYLE W. MAURER

ESTEBAN MORIN

GOVIND C. PERSAD

EMILY O’BRIEN ROBERTS

ANDREW PAUL SCHUPANITZ

TIMOTHY H. SHAPIRO

YANBAI ANDREA WANG

Members

JONATHAN ABEL

JULIA ALLEN

ALEXANDER B.M. ARONSON

AMY KNIGHT BURNS

CHRISTOPHER BROOKS COLE

EMILY C. CURRAN-HUBERTY

ROSE LEDA EHLER

LILLY FANG

JANE E. FARRINGTON

MAGGIE ELLEN FILLER

ERIC S. FLEEKOP

JAMES FREEDMAN

J. ROBERT GARCIA

JENNIFER M. GIBSON

JUSTIN MICHAEL GONZALES

JENNIFER M. HALBLEIB

JENNIFER A. HOLMES

KATHERINE C. HUDSON

WILLIAM JACOBSON

CORINNE F. JOHNSON

CHERYL JOSEPH

ADAM KOOL

EMILY KORINEK

MELINDA LEE KOSTER

STEPHANIE LINDSAY LAKE

JONATHAN LELAND

STEWART P. LYNN

CLINTON J. MARTIN

BLAKE MASTERS

BRIGGS MATHESON

JONATHAN R. MAYER

COLIN MCDONELL

AMY R. MOTOMURA

BETH NEITZEL

JACQUES MICHEL NTONME

LARA PALANJIAN

ANDREW G. PROUT

HOLLY RAGAN

C. HARKER RHODES IV

PETER J. RICHMOND

NOAH SMITH-DRELICH

PETER SQUERI

MICHAEL TAMKIN

KATHERINE TRAVERSO

Business Manager

JULIE YEE

The Stanford University School of Law

OFFICERS OF ADMINISTRATION

John Hennessy, B.E., M.S., Ph.D., President of the University

John Etchemendy, B.A., M.A., Ph.D., Provost of the University

Larry D. Kramer, A.B., J.D., Dean and Richard E. Lang Professor of Law and Professor (by courtesy) of History

Mark G. Kelman, A.B., J.D., James C. Gaither Professor of Law and Vice Dean

Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies

Lawrence C. Marshall, B.A., J.D., Professor of Law, David and Stephanie Mills Director of Clinical Education, and Associate Dean for Public Interest and Clinical Education

Jane Schacter, A.B., J.D., William Nelson Cromwell Professor of Law and Associate Dean for Curriculum

F. Daniel Siciliano, B.A., J.D., Senior Lecturer in Law and Associate Dean for Executive Education and Special Programs

Frank F. Brucato, B.A., Senior Associate Dean for Administration and Chief Financial Officer

Diane T. Chin, B.A., J.D., Lecturer in Law and Associate Dean for Public Service and Public Interest Law

Faye Deal, A.B., Associate Dean for Admissions and Financial Aid

Catherine Glaze, A.B., J.D., Associate Dean for Student Affairs

Sabrina Johnson, B.A., Associate Dean for Communications and Public Relations

Susan C. Robinson, B.A., J.D., Associate Dean for Career Services

Scott Showalter, B.A., Associate Dean for External Relations

FACULTY EMERITI

Barbara Allen Babcock, A.B., LL.B., LL.D. (hon.), Judge John Crown Professor of Law, Emerita

Paul Brest, A.B., LL.B., LL.D. (hon.), Professor of Law, Emeritus, and former Dean

William Cohen, B.A., LL.B., C. Wendell and Edith M. Carlsmith Professor of Law, Emeritus

Lance E. Dickson, B.A., LL.B., B.Com., M.L.S., Professor of Law, Emeritus, and former Director of Robert Crown Law Library

Marc A. Franklin, A.B., LL.B., Frederick I. Richman Professor of Law, Emeritus

William B. Gould IV, A.B., LL.B., LL.D. (hon.), Charles A. Beardsley Professor of Law, Emeritus

Thomas C. Grey, B.A., B.A., LL.B., LL.D. (hon.), Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus

Thomas C. Heller, A.B., LL.B., Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, Emeritus

Miguel A. Méndez, A.A., B.A., J.D., Adelbert H. Sweet Professor of Law, Emeritus

John Henry Merryman, B.S., M.S., J.D., LL.M., J.S.D., Dr. h.c., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law, Emeritus, and Affiliated Professor of Art, Emeritus

David Rosenhan, A.B., M.A., Ph.D., Professor of Law and Psychology, Emeritus

Kenneth E. Scott, A.B., M.A., LL.B., Ralph M. Parsons Professor of Law and Business, Emeritus

Michael S. Wald, A.B., M.A., LL.B., Jackson Eli Reynolds Professor of Law, Emeritus

Howard R. Williams, A.B., LL.B., Robert E. Paradise Professor of Natural Resources Law, Emeritus

PROFESSORS

Janet Cooper Alexander, B.A., M.A., J.D., Frederick I. Richman Professor of Law

Joseph M. Bankman, A.B., J.D., Ralph M. Parsons Professor of Law and Business

R. Richard Banks, B.A., M.A., J.D., Jackson Eli Reynolds Professor of Law

Juliet M. Brodie, A.B., J.D., Professor of Law

Joshua Cohen, B.A., M.A., Ph.D., Professor of Political Science, Philosophy, and Law

G. Marcus Cole, B.S., J.D., Wm. Benjamin Scott and Luna M. Scott Professor of Law

Richard Craswell, B.A., J.D., William F. Baxter-Visa International Professor of Law

Mariano-Florentino Cuéllar, A.B., A.M., J.D., Ph.D., Professor of Law and Deane F. Johnson Faculty Scholar

Robert M. Daines, B.S., B.A., J.D., Pritzker Professor of Law and Business and Professor (by courtesy) of Finance

Michele Landis Dauber, B.S.W., J.D., Ph.D., Professor of Law, Bernard D. Bergreen Faculty Scholar, and Professor (by courtesy) of Sociology

John J. Donohue III, B.A., J.D., Ph.D., C. Wendell and Edith M. Carlsmith Professor of Law

David Freeman Engstrom, A.B., M.Sc., J.D., Ph.D., Assistant Professor of Law

Nora Freeman Engstrom, B.A., J.D., Assistant Professor of Law

George Fisher, A.B., J.D., Judge John Crown Professor of Law

Jeffrey L. Fisher, A.B., J.D., Associate Professor of Law

Richard Thompson Ford, A.B., J.D., George E. Osborne Professor of Law

Barbara H. Fried, B.A., M.A., J.D., William W. and Gertrude H. Saunders Professor of Law

Lawrence M. Friedman, A.B., J.D., LL.M., LL.D. (hon.), Marion Rice Kirkwood Professor of Law, Professor (by courtesy) of History, and Professor (by courtesy) of Political Science

Ronald J. Gilson, A.B., J.D., Charles J. Meyers Professor of Law and Business

Paul Goldstein, A.B., LL.B., Stella W. and Ira S. Lillick Professor of Law

Henry T. Greely, A.B., J.D., Deane F. and Kate Edelman Johnson Professor of Law and Professor (by courtesy) of Genetics

Joseph A. Grundfest, B.A., M.Sc., J.D., W.A. Franke Professor of Law and Business

Deborah R. Hensler, A.B., Ph.D., Judge John W. Ford Professor of Dispute Resolution and Associate Dean for Graduate Studies

Daniel E. Ho, B.A., A.M., Ph.D., J.D., Professor of Law and Robert E. Paradise Faculty Fellow for Excellence in Teaching and Research

Pamela S. Karlan, B.A., M.A., J.D., Kenneth and Harle Montgomery Professor of Public Interest Law

Mark G. Kelman, A.B., J.D., James C. Gaither Professor of Law and Vice Dean

Amalia D. Kessler, A.B., M.A., J.D., Ph.D., Professor of Law, Helen L. Crocker Faculty Scholar, and Professor (by courtesy) of History

Daniel P. Kessler, B.A., J.D., Ph.D., Professor of Law, Senior Fellow, Hoover Institution, and Professor of Health Research and Policy (by courtesy) of School of Medicine

Michael Klausner, B.A., M.A., J.D., Nancy and Charles Munger Professor of Business and Professor of Law

William S. Koski, B.B.A., J.D., Ph.D., Eric and Nancy Wright Professor of Clinical Education and Professor (by courtesy) of Education

Larry D. Kramer, A.B., J.D., Dean and Richard E. Lang Professor of Law and Professor (by courtesy) of History

Mark A. Lemley, B.A, J.D., William H. Neukom Professor of Law

Lawrence C. Marshall, B.A., J.D., Professor of Law, David and Stephanie Mills Director of Clinical Education, and Associate Dean for Public Interest and Clinical Education

Jenny S. Martinez, B.A., J.D., Professor of Law and Justin M. Roach, Jr. Faculty Scholar

Michael W. McConnell, B.A., J.D., Richard and Frances Mallery Professor of Law, Director, Stanford Constitutional Law Center, and Senior Fellow, Hoover Institution

Jay Mitchell, B.A., J.D., Associate Professor of Law and Director, Organizations and Transactions Clinic

Alison D. Morantz, A.B., M.Sc., J.D., Ph.D., Associate Professor of Law and John A. Wilson Distinguished Faculty Scholar

Joan Petersilia, B.A., M.A., Ph.D., Adelbert H. Sweet Professor of Law

A. Mitchell Polinsky, A.B., Ph.D., M.S.L., Josephine Scott Crocker Professor of Law and Economics and Professor (by courtesy) of Economics

Robert L. Rabin, B.S., J.D., Ph.D., A. Calder Mackay Professor of Law

Deborah L. Rhode, B.A., J.D., Ernest W. McFarland Professor of Law

Jane Schacter, A.B., J.D., William Nelson Cromwell Professor of Law and Associate Dean for Curriculum

Deborah A. Sivas, A.B., M.S., J.D., Luke W. Cole Professor of Environmental Law

Norman W. Spaulding, B.A., J.D., Nelson Bowman Sweitzer and Marie B. Sweitzer Professor of Law

Jayashri Srikantiah, B.S., J.D., Associate Professor of Law

James Frank Strnad II, A.B., J.D., Ph.D., Charles A. Beardsley Professor of Law

Kathleen M. Sullivan, B.A., B.A., J.D., Stanley Morrison Professor of Law and former Dean

Alan O. Sykes, B.A., J.D., Ph.D., James and Patricia Kowal Professor of Law

Barton H. Thompson, Jr., A.B., J.D., M.B.A., Robert E. Paradise Professor of Natural Resources Law, Director, Woods Institute for the Environment, and Senior Fellow (by courtesy), Freeman Spogli Institute for International Studies

Barbara van Schewick, Ph.D., Associate Professor of Law

Michael Wara, B.A., Ph.D., J.D., Assistant Professor of Law and Research Fellow, Freeman Spogli Institute for International Studies

Robert Weisberg, A.B., A.M., Ph.D., J.D., Edwin E. Huddleson, Jr. Professor of Law

SENIOR LECTURERS

Margaret R. Caldwell, B.S., J.D., Senior Lecturer in Law and Executive Director, Center for Oceans Solutions, Woods Institute for the Environment

Janet Martinez, B.S., J.D., M.P.A., Senior Lecturer in Law

David W. Mills, B.A., J.D., Senior Lecturer in Law

F. Daniel Siciliano, B.A., J.D., Senior Lecturer in Law and Associate Dean for Executive Education and Special Programs

Allen S. Weiner, A.B., J.D., Senior Lecturer in Law

VISITING PROFESSORS & AFFILIATED FACULTY

Michael Asimow, B.S., J.D., Visiting Professor of Law

Kyle Bagwell, B.S., Ph.D., Affiliated Faculty

Alexandria Boehm, M.S., Ph.D., Affiliated Faculty

Jared R. Curhan, A.B., A.M., Ph.D., Visiting Associate Professor of Law

Nita Farahany, M.A., J.D., Ph.D., Visiting Associate Professor of Law

Siegfried Fina, J.D., J.S.D., Visiting Associate Professor of Law

Pratheepan Gulasekaram, J.D., Visiting Assistant Professor of Law

Tamar Herzog, Ph.D., Affiliated Faculty

David Holloway, B.A., M.A., Ph.D., Affiliated Faculty

Daniel Hulsebosch, J.D., Ph.D., Visiting Professor of Law

Ron Kasznik, M.S., Ph.D., Affiliated Faculty

Chimene Keitner, M.P., D.P., J.D., Visiting Associate Professor of Law

Brian Lowery, B.S., M.A., Ph.D., Affiliated Faculty

Mark McKenna, J.D., Visiting Associate Professor of Law

Bernadette Meyler, J.D., Ph.D., Visiting Professor of Law

David Patton, J.D., Visiting Assistant Professor of Law

Rogelio Perez-Perdomo, Ph.D., Visiting Professor of Law

Paul C. Pfleiderer, B.A., M.Phil., Ph.D., Professor (by courtesy) of Law

Madhav Rajan, B.A., M.S., M.B.A., Ph.D., Professor (by courtesy) of Law

Jack Rakove, A.B., Ph.D., Professor (by courtesy) of Law

Nicholas Quinn Rosenkranz, B.A., J.D., Visiting Associate Professor of Law

Lee D. Ross, B.A., Ph.D., Affiliated Faculty

Rebecca Sandefur, B.A., M.A., Ph.D., Assistant Professor (by courtesy) of Law

William Simon, A.B., J.D., Visiting Professor of Law

Helen Stacy, LL.B., Ph.D., Affiliated Faculty

Frank A. Wolak, B.A., M.S., Ph.D., Affiliated Faculty

Jonathan Zittrain, B.S., M.P.A., J.D., Visiting Professor of Law

LECTURERS AND TEACHING FELLOWS

Alvin Attles, J.D.

Dmitry Barn, J.D.

Daniel Barton, J.D.

Marilyn M. Bautista, J.D.

Jeanine Becker, J.D.

Samuel Bray, J.D.

Viola Canales, J.D.

Diane T. Chin, J.D.

Daniel Cooperman, J.D., M.B.A.

John Crawford, M.A., J.D.

Elizabeth de la Vega, J.D.

Lothar Determann, J.D.

Michael Dickstein, J.D.

Bonnie Eskenazi, J.D.

Anthony Falzone, J.D.

Randee G. Fenner, J.D.

Bertram Fields, LL.B.

Jeremy Fogel, J.D.

David Forst, J.D.

Laurence Franklin, J.D., M.B.A., C.P.A.

Michelle Galloway, J.D.

Mei Gechlik, LL.B., LL.M., J.S.D., J.S.M., M.B.A.

Thomas C. Goldstein, J.D.

Richard Goldstone, LL.B.

Jonathan D. Greenberg, J.D.

Timothy H. Hallahan, J.D.

Brad Handler, J.D.

Keith Hennessey, M.P.P.

Brooke Heymach, J.D.

Amy Howe, M.A., J.D.

John Huhs, J.D., M.B.A.

Ivan Humphreys, J.D.

Erik Jensen, J.D.

David Johnson, J.D., J.S.M.

Danielle Jones, J.D.

Stephen Juelsgaard, D.V.M., J.D.

Kathleen Kelly, J.D.

Julie Matlof Kennedy, J.D.

Jason Kipnis, J.D.

Suzanne McKechnie Klahr, J.D.

Jeffrey W. Kobrick, J.D.

Charles Koob, J.D.

Phillip Levine, J.D.

Donald Lewis, J.D., LL.M.

Galit Lipa, J.D., LL.M.

J. Paul Lomio, J.D., LL.M., M.L.I.S.

Brian Love, J.D.

Steven Lucas, J.D.

Beth McLellan, J.D.

Jeanne Merino, J.D.

Roberta Morris, J.D., Ph.D.

Linda Netsch, J.D.

Thomas J. Nolan, J.D.

Jessica Notini, J.D.

Ralph Pais, J.D.

Moria Paz, J.S.D., LL.M.

B. Howard Pearson, J.D.

Lisa M. Pearson, J.D., J.S.M.

Pamela Phan, J.D.

Joe Pitts III, J.D.

Duane Quaini, J.D.

Stephan Ray, J.D.

Claudio Rechden, LL.B., LL.M.

Michael Romano, J.D.

Andrew Roper, M.A., Ph.D.

Stephen Rosenbaum, J.D.

Matthew Rossiter, J.D.

Thomas Rubin, J.D.

Kevin Russell, J.D.

Richard Salgado, J.D.

Ticien Sassoubre, Ph.D.

Rachelle Silverberg, J.D.

Smita Singh, Ph.D.

Stephanie E. Smith, J.D.

Steven Smith, M.P., LL.B., J.D.

Dee Smythe, LL.B., J.S.D., J.S.M

Sergio Stone, J.D., M.L.I.S.

Kimberly Summe, M.S., M.A., LL.B., J.D.

Stuart Taylor Jr., J.D.

Peter Thiel, J.D.

Jean Thomas, M.A., J.D., LL.M., J.S.D.

Dan Torres, J.D.

Erika V. Wayne, J.D., M.S.

Dana Weintraub, M.D.

Robert Wexler, J.D.

Katherine Wright, J.D.

PROFESSIONAL LIBRARY STAFF

Annie Chen, B.A., M.L.S.

Alba Holgado, B.A.

J. Paul Lomio, B.A., J.D., LL.M., M.L.I.S.

Rachael Samberg, J.D.

Sergio Stone, J.D., M.L.I.S.

Erika V. Wayne, A.B., J.D., M.S.

George D. Wilson, B.A., J.D., M.L.I.S.

Sarah Wilson, B.A., M.L.I.S.

Kathleen M. Winzer, B.A., M.L.S.

Naheed Zaheer, B.S., M.S., M.L.I.S.

ARTICLES

THE OBJECTS OF THE CONSTITUTION

Nicholas Quinn Rosenkranz*

[Cite as 63 STAN. L. REV. 1005 (2011)]

INTRODUCTION

I. THE TWO DIMENSIONS OF THE WHO QUESTION

A. Barron v. Baltimore

B. Beyond Barron

1. Federal subjects

a. The objects of Article I, Section 8

b. The objects of Article I, Section 9

2. State subjects

II. THE OBJECTS OF THE BILL OF RIGHTS

A. The Subject of the First Amendment

B. The Object of the Third Amendment

C. The Objects of the Fourth Amendment

1. The object of searches and seizures

2. The object of warrants

3. The Fourth Amendment as a whole

D. The Objects of the Fifth Amendment

1. The objects of due process

2. The objects of takings

E. The Objects of Procedure

F. The Bill of Rights as a Whole

III. THE OBJECTS OF THE FOURTEENTH AMENDMENT

A. Objective Incorporation

B. Changing the Subject

1. Protoincorporation, ex post facto

2. Incorporating the First Amendment

3. Incorporating quartering

4. Incorporating warrants

5. Incorporating takings

CONCLUSION

The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments.¹

The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer.²

INTRODUCTION

The Constitution empowers and restricts different officials differently. A constitutional claim is a claim that a particular government actor has exceeded a grant of power or transgressed a restriction. But because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Current practice speaks, euphemistically, of challenges to statutes, thus obscuring the subjects of constitutional claims. But the Constitution does not prohibit statutes; it prohibits actions—the actions of particular government actors. Thus, every constitutional inquiry should begin with the subject of the constitutional claim. And the first question in any such inquiry should be the who question: who has allegedly violated the Constitution?

This Article’s predecessor, The Subjects of the Constitution,³ demonstrated the analytical power of this seemingly innocuous question. To begin with, the who question reveals constitutional culprits, triggering the essential backstops of constitutional accountability. If the Constitution has been violated, the People must know who has violated it, so that they can know whom to blame, whom to vote against, whom to impeach.⁴

But that is not all. The who question also establishes the two basic forms of judicial review. In the typical constitutional case, the legislature will make a law, the executive will execute it, and someone will claim that his constitutional rights have been violated. The first question to ask such a claimant is who has violated the Constitution? The legislature, by making the law? Or the executive, by executing it?

This fundamental dichotomy, between judicial review of legislative action and judicial review of executive action, is the organizing dichotomy of constitutional law. It is this dichotomy that the Court has obscured with its anthropomorphic trope that statutes—rather than government actors—violate the Constitution. And it is this dichotomy that the Court has been grasping for with its muddled distinction between facial challenges to statutes and as-applied challenges to statutes. Properly understood, a facial challenge is nothing more nor less than a challenge to legislative action, and an as-applied challenge is nothing more nor less than a challenge to executive action.

Judicial review of legislative action and judicial review of executive action are two fundamentally different enterprises—formally, structurally, temporally different. And these basic differences dictate both the structure and the substance of judicial review. Clear thinking about the who question thus solves deep jurisdictional riddles. And the solutions to these riddles, in turn, have profound feedback effects on the substantive scope of constitutional rights and powers.

To demonstrate all this, The Subjects of the Constitution took as its primary examples the Commerce Clause, Section 5 of the Fourteenth Amendment, and the six clauses of the First Amendment. These examples were apt, because each of these clauses is written in the active voice, with the same express subject. Under each of these clauses, there can be only one answer to the who question: Congress. But the examples chosen were also, in a sense, the easiest clauses for this approach. Most clauses, unfortunately, are not so clear.

This Article picks up where its predecessor left off. The predecessor established the primacy of the who question; this Article shows how to answer it. Part I begins with the intellectual primogenitor of this approach: Chief Justice Marshall’s masterful opinion for the Court in Barron v. Baltimore. It then presses beyond Barron, using Marshall’s method to address the questions that he left unanswered. Part II analyzes several of the passive-voice clauses of the Bill of Rights, in the first systematic effort to identify their implied objects. As it turns out, these objects form a pattern, which amounts to a central, structural theme of the Bill of Rights that has long been overlooked. Part III turns to Section 1 of the Fourteenth Amendment. Its key sentence, unlike the bulk of the Bill of Rights, is written in the active voice, with an explicit subject (State), but the who question is nevertheless quite subtle, because the sentence does not specify the relevant branch of state government. This Part shows how the answer informs the incorporation debate. It builds on Akhil Amar’s insight that the Bill of Rights underwent refinement when incorporated against the states by the Fourteenth Amendment,⁵ and it identifies perhaps the most important refinement of all: refinement of the actors bound by the Bill—refinement of its objects.

In short, this Article and its predecessor amount to a new model of constitutional review, a new lens through which to read the Constitution. This approach begins with a grammatical exercise: identifying the subjects and objects of the Constitution. But this is hardly linguistic casuistry or grammatical fetishism. The subjects and objects of the Constitution are not merely features of constitutional text; they are the very pillars of constitutional structure. The very words federalism and separation of powers are simply shorthand for the deep truth that the Constitution empowers and restricts different governmental actors in different ways. Indeed, this is the primary strategy that the Constitution deploys to constrain governmental power; more than any other principle of institutional design, the Framers pinned their hopes on the axiom that ambition may counteract ambition.⁶ And so, in allocating each governmental power—and in giv[ing] to each [branch] a constitutional control over the others⁷ —the first question was, inevitably, who?⁸ To elide the who question is to overlook the central feature of our constitutional structure. And it is this structure, above all, that is the object of the Constitution.⁹

I. THE TWO DIMENSIONS OF THE WHO QUESTION

Every government official is bound by the Constitution. [United States] Senators and Representatives ..., and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, [are] bound by Oath or Affirmation, to support th[e] Constitution....¹⁰ It binds them all, and any of them might violate it. Any branch of state or federal government could be the answer to the who question.

But—and this is the crucial point—the Constitution restricts these different actors differently.¹¹ Some constitutional clauses restrict the actions of Congress; others restrict the actions of the President; still others restrict the actions of the judiciary; yet others restrict the actions of the corresponding branches of state governments. These restrictions differ in their subject matter from clause to clause. But even more important, they differ in their fundamental form. The universe of actors that can violate the Constitution is large, but the universe that can violate any given clause is substantially smaller. Each clause is carefully tailored, not only to its subject matter, but also to its subject—that is, to the governmental actor that it addresses and binds.

The Constitution binds six sorts of entities, so there are six sorts of entities that can violate the Constitution, six possible answers to the who question: (1) Congress; (2) the President; (3) the federal courts; (4) state legislatures; (5) state executives; and (6) state courts.¹²

These six can, of course, be divided across two dimensions, reflecting the two great structural themes of the Constitution, separation of powers and federalism. So the potential answers to the who question may be categorized as federal (Congress, the President, the federal courts) versus state (state legislatures, state executives, state courts); and they may be categorized as legislative (Congress, state legislatures), executive (the President, state executives), and judicial (federal courts, state courts).

All of this is, on one level, utterly familiar. After all, in the typical law school curriculum, the subject of Constitutional Law I is constitutional structure. The entire course is, in a sense, dedicated to asking who questions and categorizing the answers across these two dimensions. But in Constitutional Law II, this analysis is largely forgotten. The study of constitutional rights is almost entirely limited to the scope of the rights, and the great structural questions, the who questions—rights against whom?—are almost entirely overlooked.¹³

It was not always so. Chief Justice Marshall knew that the rights provisions of the Constitution, no less than the structural provisions, have specific objects—that they bind some government actors and not others. One of his most masterful, most understudied opinions elucidates just this point.

This Part will begin with Marshall’s opinion in Barron v. Baltimore¹⁴ to recover Marshall’s conclusions and Marshall’s method. Then it will move beyond Barron, applying Marshall’s method to the questions that he did not answer.

A.   Barron v. Baltimore

Some clauses bind federal actors; other clauses bind state actors; and still other clauses bind both. Sometimes it is easy to tell, because some clauses are written in the active voice, with express subjects. "Congress shall make no law ...."¹⁵ "No State shall ...."¹⁶ These clauses explicitly indicate who is bound—federal or state—and thus who can violate these clauses.

But not all cases are so simple. Many of the most important constitutional clauses are written in the passive voice. As incomparable grammarian Bryan Garner explains, "The unfailing test for passive voice is this: you must have a be-verb ... plus a past participle (usually a verb ending in -ed)."¹⁷ This was well understood at the time of the Framing,¹⁸ and the Bill of Rights is rife with such passive-voice formulations: be infringed,¹⁹ be quartered,²⁰ be violated,²¹ be held,²² be subject,²³ be compelled,²⁴ be deprived,²⁵ be taken,²⁶ be informed,²⁷ be confronted,²⁸ be preserved,²⁹ be ... reexamined,³⁰ be required ... imposed ... inflicted.³¹ These clauses are easy to identify.

But the actors to whom they apply are not. Each of these clauses does have an identifiable subject, but the distinctive feature of the passive voice is that the subject of the clause doesn’t perform the action of the verb.³² In the passive voice, the grammatical subject is not the logical subject,³³ the doer,³⁴ the agent.³⁵ The passive voice can take a prepositional phrase that answers the who question expressly—with its object—as in: "shall not be prohibited by the Congress."³⁶ But this sort of prepositional phrase is usually omitted, thus inviting the question by whom?³⁷ As Garner explains, in the passive form, it’s possible to omit the actor altogether—a prime source of unclarity, a fail[ure] to say squarely who has done what.³⁸

Only a few scholars have noted the pervasive constitutional use of the passive voice, most deeming it unfortunate and imprecise.³⁹ And it is true that almost all of the clauses written in the passive voice do not expressly answer the by whom question. But it does not follow that such clauses are terminally ambiguous. To the contrary, despite the passive voice, grammatical and structural logic often point to particular, identifiable constitutional actors.

Chief Justice Marshall applied just such logic in Barron v. Baltimore.⁴⁰ The issue in that case was whether the Takings Clause restrain[s] the legislative power of a state, as well as that of the United States.⁴¹ The question was difficult, because, like most of the Bill of Rights, the Takings Clause is written in the passive voice: "[N]or shall private property be taken for public use, without just compensation."⁴² This clause invites the question taken by whom?

Conventional wisdom may have it that the passive voice is ambiguous, but Chief Justice Marshall was undeterred. He knew that the Constitution must be read as a whole. Looking to the original, pre-amendment Constitution as a Rosetta stone, he began by juxtaposing two sections of Article I. He noted that Section 9 is written, like the Takings Clause, in general terms, which is to say the passive voice.⁴³ It provides, for example, that "[n]o Bill of Attainder or ex post facto Law shall be passed."⁴⁴ But the very next section of the Constitution includes a clause identical in subject matter but different in subject: "No State shall ... pass any Bill of Attainder, [or] ex post facto Law ...."⁴⁵ This clause, unlike the Section 9 version, is written in the active voice, and it has a clear subject: State. Marshall reasoned that the passive-voice version of this clause must not restrict states, because otherwise the active, No State shall version would be superfluous.⁴⁶ Thus, Article I, Section 9, however comprehensive its language, contains no restriction on state legislation.⁴⁷

The next step was to generalize the principle. Chief Justice Marshall had already adopted a presumption of semantic consistency years before in McCulloch v. Maryland.⁴⁸ But in Barron, Marshall adopted an equally important presumption of grammatical consistency:

If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the state; if in every inhibition intended to act on state power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments, before that departure can be assumed.

We search in vain for that reason.⁴⁹

So Marshall’s analysis of Article I, Section 9, could be applied throughout the document—even to provisions ratified after the original Constitution. He thus derived an essential principle of constitutional interpretation, a partial answer to the by whom question: limitations on power, if expressed in general terms—the passive voice—are naturally, and ... necessarily applicable to the government created by [the Constitution itself]—that is, to the federal government, not to the states.⁵⁰

The point is a structural one as well as a grammatical one; as always, constitutional structure and constitutional grammar are mutually reinforcing. Indeed, Alexander Hamilton had made the same point years before, both structurally and grammatically, by all-caps double entendre: The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer.⁵¹ The federal government is the object of the implied preposition; the federal structure is the object of the Constitution.

This analysis answered the Takings Clause question at issue in Barron, because the Takings Clause, like Article I, Section 9, is written in the passive voice. And the same logic applied equally to the rest of the Bill of Rights, almost all of which is likewise written in the passive voice. Thus, the Bill of Rights binds only the federal government, not the states.

And Marshall’s converse point was equally important. Article I, Section 10, unlike Section 9, is written in the active voice, and the emphatic first words of each clause are "No State shall."⁵² As Marshall noted, "the restrictions contained in [Article I, Section 10,] are in direct words ... applied to the states.⁵³ And here, too, Marshall’s presumption of grammatical consistency allowed him to generalize the principle: [I]n every inhibition intended to act on state power, words are employed which directly express that intent ....⁵⁴ In other words, when the Constitution restricts the states, it does so expressly, usually with the words No State shall." The subject of such clauses is the subject of Part III.

Most constitutional law casebooks give Barron v. Baltimore short shrift. And the leading federal courts casebook—which covers almost 2000 cases—does not mention Barron even once.⁵⁵ But even if the Fourteenth Amendment has diminished the practical effect of its holding, Barron’s lessons about constitutional structure and interpretive method remain vital.

In Barron, Chief Justice Marshall recognized what so many subsequent Justices and scholars have not: the who question cannot be skipped over. It is indeed, as Marshall insisted, of great importance.⁵⁶ To answer it, Marshall employed a holistic textual approach, presuming logical, structural, and grammatical consistency throughout the document.

He thus developed some of the most basic canons of constitutional interpretation. And by applying those canons, he discovered and elaborated the crucial distinction between clauses that bind federal actors and clauses that bind state actors.

B.   Beyond Barron

But the vertical, federal/state dichotomy, the federalism dichotomy, is not a complete answer to the who question. Another dimension of the question is equally important. The other dimension of the who question is the horizontal, separation of powers dimension.

Do the federal clauses bind all branches of the federal government? Or are some of them limited to two branches, or one? Most such clauses are written in the passive voice, so they do not expressly specify a particular branch of the federal government. Do they necessarily bind all three?

Likewise, do the state clauses apply to all branches of state government? These clauses are written in the active voice, but the most important ones say only No State shall,⁵⁷ without specifying a particular branch. Again, the question remains: which branch or branches of state