May 25, 2010 8:35AM

Ground‐​Breaking Constitutional Theories

As Larry Solum notes and Randy Barnett seconds, Georgetown law professor and friend‐​of‐​Cato Nick Rosenkranz has just published a tremendous article in the Stanford Law Review. I saw an earlier version of it and can tell you that it offers one of those singular re‐​thinks of accepted learning. As Randy puts it, “It is one of those rare pieces that hits you between the eyes and causes you to reconsider how you think about the Constitution.” The article, entitled “The Subjects of the Constitution,” argues that all of us are going about our constitutional theorizing, at least with respect to judicial review, the wrong way. Here’s the first paragraph of the 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?

In thinking about who violated (or allegedly violated) the Constitution, Rosenkranz contends, we get to a truer understanding of whether the Constitution was violated, and how. Fascinating stuff, which you can download here — and the sequel, titled “The Objects of the Constitution,” is coming soon to a legal journal near you (perhaps for next summer’s blockbuster law review article season). (Coincidentally, today the Supreme Court unanimously ruled against Nick in his first argument before the Court — a technical case regarding the award of attorneys fees under Employee Retirement Income Security Act (ERISA) — so we now know where his comparative advantage lies!)

And while I have you thinking about such high‐​fallutin’ theoretical matters, let me also direct your attention to a new article by an up‐​and‐​coming legal scholar, also a friend‐​of‐​Cato (and my sometime co‐​author), Josh Blackman. Josh argues that the Supreme Court’s relatively new “class of one” doctrine, by which a single person can present himself as a class discriminated against in violation of the Equal Protection Clause, should be used to challenge eminent domain abuse. That is, homeowners can establish a class of one (i.e., the person whose home the government takes) if their property is singled out for condemnation while other similarly situated properties are not. The singled‐​out homeowner(s) can thus challenge the arbitrariness of the government’s taking of their property.

Josh obviously hopes that some court will accept this novel strategy of borrowing equal protection jurisprudence to check rampant eminent domain abuse and vindicate property rights. Here you can download his article, which is titled “Equal Protection from Eminent Domain: Protecting the Home of Olech’s Class of One.” Coincidentally, two years ago Roger Pilon wrote an essay on the Supreme Court’s most recent “class of one” decision, which you can read here.