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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.

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