As the folks on the Senate Judiciary Committee get ready to question Elena Kagan, they'd all be well advised to review the ground-breaking new article I had the pleasure of reading this afternoon, The Subjects of the Constitution (SSRN), by my law school classmate Nick Rosenkranz. In his common-sense logical-textualist approach to judicial review, Professor Rosenkranz suggests that courts should look first to the subject of a constitutional violation, i.e., who violated the constitution?
As his article makes clear, the answer to that question profoundly shapes how we might think about the Court's confusing jurisdictional doctrine (e.g., questions of ripeness, standing, and facial vs. "as applied" constitutional challenges) and also substantive questions of law. In this paper, Rosenkranz looks in some depth at those cases in which Congress is the clear "who": cases involving the First Amendment (an express limitation on Congressional power) and the Article I, Section 8 enumerated powers and Article 5, Fourteenth Amendment powers (each express grants of Congressional power, otherwise limited by the Tenth Amendment). He promises further analysis in a forthcoming follow-up paper, The Objects of the Constitution, as well as a forthcoming book (2011).
Obviously, the methodology suggested by Rosenkranz could shed interesting light on the constitutional questions of major interest to many of the readers of this site, including constitutional limits on punitive damages, federal preemption, and the impending honest-services fraud cases. I'll certainly be re-examining my thoughts in light of Nick's paper.
One interesting tidbit in the article regarding tort law comes in on page 1219, where Nick notes that the Supreme Court has regularly found constitutional violations without identifying a constitutional violator, and notes a hypothetical link to tort: "This habit of mind is also abetted, perhaps, by the modern indulgence (unknown to the Framers) of plaintiffs who cannot identify their tortfeasors" (citing examples including DES and asbestos market-share liability cases).
Others including Lawrence Solum, Randy Barnett, and Ilya Shapiro are also taking notice.