Constitutional Private Law

Abstract

Constitutional private law is like ordinary private law.  It imposes relational obligations on government officials, like duties to use only reasonable force against a person or not to fire an employee for discriminatory reasons, that are analogous to the rules of tort, property, or contract.  Constitutional public law, by contrast, controls when and how governments validly change non-constitutional legal rules.  When a government violates constitutional public law, as when Congress exceeds its Article I powers, the government fails to change non-constitutional legal rules but does not breach a relational duty to anyone.  That difference should reframe both forms of constitutional law.  It explains why constitutional remedies might either under-or over-protect the interests safeguarded by constitutional public law. And it shows that the best defense of constitutional private law draws on a vision of ordinary private law as a system for redressing wrongs, and that constitutional private law should be less concerned about constitutional theory and more concerned about articulating basic norms of interpersonal justice for those with official authority.