Crónicas e informaciones

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JURISPRUDENCIA

That the principle is structural and implicit in our constitutional system does

not render it any less enforceable. To the contrary, our Supreme Court has recogni-

zed that “[t]here are many [] constitutional doctrines that are not spelled out in the

Constitution” but are nonetheless enforceable as “historically rooted principle[s]

embedded in the text and structure of the Constitution.” Franchise Tax Bd. of Cali-

fornia v. Hyatt, 139 S. Ct. 1485, 1498–99 (2019). For instance, the Constitution does

not in express terms provide for judicial review, Marbury v. Madison, 5 U.S. 137,

176–77 (1803); sovereign immunity (outside of the Eleventh Amendment’s explicit

restriction), Alden, 527 U.S. at 735– 36; the anticommandeering doctrine, Murphy v.

NCAA, 138 S. Ct. 1461, 1477 (2018); or the regimented tiers of scrutiny applicable

to many constitutional rights, see, e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,

641–42 (1994). Yet these doctrines, as well as many other implicit principles, have

become firmly entrenched in our constitutional landscape. And, in an otherwise

justiciable case, a private litigant may seek to vindicate such structural principles,

for they “protect the individual as well” as the Nation. See Bond v. United States, 564

U.S. 211, 222, 225–26 (2011); INS. v. Chadha, 462 U.S. 919, 935–36 (1983).

In Hyatt, for instance, the Supreme Court held that a state could not be sued

in another state’s courts without its consent. Although nothing in the text of the

Constitution expressly forbids such suits, the Court concluded that they contrave-

ned “the ‘implicit ordering of relationships within the federal system necessary to

make the Constitution a workable governing charter and to give each provision

within that document the full effect intended by the Framers.’” Hyatt, 139 S. Ct. at

1492 (quoting Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting)).

So too here.

Nor can the perpetuity principle be rejected simply because the Court has not

yet had occasion to enforce it as a limitation on government conduct. Only over

time, as the Nation confronts new challenges, are constitutional principles tested.

For instance, courts did not recognize the anticommandeering doctrine until the

1970s because “[f]ederal commandeering of state governments [was] such a novel

phenomenon.” Printz v. United States, 521 U.S. 898, 925 (1997). And the Court did

not recognize that cell-site data fell within the Fourth Amendment until 2018. In so

holding, the Court rejected “a ‘mechanical interpretation’ of the Fourth Amendment”

because “technology has enhanced the Government’s capacity to encroach upon

areas normally guarded from inquisitive eyes[.]” Carpenter v. United States, 138 S.

Ct. 2206, 2214 (2018). Thus, it should come as no surprise that the Constitution’s

commitment to perpetuity only now faces judicial scrutiny, for never before has the

it is not triggered absent an existential threat to the country arising from a “point of no return” that

is, at least in part, of the government’s own making.