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Law Review: The Subjects of the Constitution

By Alliance Alert

Nicholas Quinn Rosenkranz, The Subjects of the Constitution (May 18, 2010). Stanford Law Review, Vol. 62, No. 5, 2010; Georgetown Public Law Research Paper No. 10-25. Available at SSRN: http://ssrn.com/abstract=1611210 "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?"

Full post as published by Constitutionally Correct on May 25, 2010 (boomark / email).