More Ground‐Breaking Constitutional Theories
Last year I blogged about a fascinating new approach to constitutional interpretation that Georgetown law professor Nicholas Quinn Rosenkranz was developing, in a Stanford Law Review article called “The Subjects of the Constitution.” Now Nick has a sequel, titled, naturally, “The Objects of the Constitution.” Here’s an excerpt from the abstract:
In short, this Article and its predecessor, The Subjects of the Constitution, 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 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. 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.
Josh Blackman (on whom more shortly) called the piece a “gem” and Larry Solum of Legal Theory Blog labeled it a Download of the Week. Given that this approach takes seriously constitutional text and structure, it’s quite libertarian‐friendly. And if these two articles aren’t enough, Nick has an expanded treatment coming out as a book to be published by the Oxford University Press. Pre‐order yours today!
But that’s not all; like last year, I’d like to offer Josh Blackman’s latest article as the undercard in the same post as the one covering Nick Rosenkranz’s latest. “The Constitutionality of Social Cost,” to be published in the Harvard Journal of Law & Public Policy, looks at “the constitutional dimensions of the social cost of liberty.” Here’s a bit of the abstract:
Although some have suggested that courts should look to the First Amendment for interpretational guidance for the Second Amendment, I propose a more holistic approach: look to the entire Bill of Rights. Liberty interests certainly vary by type, but the Court’s precedents balancing those interests against society’s need for safety and security coalesce into different schools. By reconceptualizing the right to keep and bear arms through the lens of social cost, in light of over a century of Supreme Court jurisprudence, one can see that despite its dangerous potential, the Second Amendment is not so different from all other rights; accordingly, it should not be treated differently.
Josh (my sometime co‐author and a friend of Cato) asks why the right to keep and bear arms, for example, just because its abuse can harm people and impose costs on society, is any different from any number of constitutional protections for liberty that also impose social costs. (The most obvious example is that we tolerate a certain number of guilty people going free to maintain the Fourth Amendment, due process, the presumption of innocence, etc.) It isn’t, he concludes.
Good stuff! And ground‐breaking constitutional theory!
