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Constitutional Enforcement by Proxy

82 Pages Posted: 18 Mar 2009 Last revised: 15 Dec 2009

John F. Preis

University of Richmond - School of Law

Date Written: December 1, 2009


Americans love their Constitution. But love, as we all know, is blind. This might explain why we often look to constitutional law to vindicate our civil rights while ignoring the potential of sub-constitutional law. Federal courts have not ignored this possibility, however, and have increasingly forced civil rights plaintiffs to seek relief from sub-constitutional law where it is available. A victim of discrimination, for example, might be denied the chance to invoke the Equal Protection Clause and told instead to rely on a federal antidiscrimination statute. In this and other cases, courts seem to believe that the Constitution can be enforced by proxy.

This Article is the first to analyze the emerging practice of constitutional enforcement by proxy. This issue is important because it lies at the confluence of several important discourses in the federal courts field - such as the judicial duty to issue a remedy for every constitutional wrong, the role of non-Article III actors in setting constitutional norms, and the degree to which sub-constitutional law can, like the Constitution itself, be "constitutive" of the national order. The Article's central claim is that proxy enforcement, properly administered, is permissible and even advisable in a large number of cases. It is permissible because federal courts' duty to supervise the behavior of non-Article III actors does not require courts to invoke the Constitution directly (unless Congress has ordered otherwise). If courts can maintain constitutional norms using sub-constitutional law, they are entirely free to do so.

The practice is normatively attractive because it promises a partial truce in the everlasting debate over interpretive supremacy. By relying on sub-constitutional law to enforce the Constitution, federal courts allow non-Article III actors a significant role in the articulation of constitutional norms, a role normally denied them when courts enforce the Constitution directly. Thus, sub-constitutional adjudication of civil rights claims does not spurn our love of the Constitution, it preserves individual rights while honoring a principle that lies at the Constitution's very heart: popular sovereignty.

Keywords: Bivens, 1983, Article III, Monroe v. Pape, decision rules, popular constitutionalism, constitutional common law

Suggested Citation

Preis, John F., Constitutional Enforcement by Proxy (December 1, 2009). Virginia Law Review, Vol. 95, p. 1663, 2009. Available at SSRN:

John F. Preis (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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