Thread by @michaelmorley11

Just read Charles Black’s Structure and Relationship in Constitutional Law. It’s surprisingly focused on individual rights since it pre-dated modern federalism jurisprudence, and doesn’t really address using structural approach for separation of powers issues.

The book offers two surprising (from a modern perspective) suggestions:
I. rights incorporated through 14th Amd should sometimes be narrower than when directly applied against federal gov’t
II. Constitutional cases should sometimes turn on which entity took or authorized actions

(II) means that a search, for example, might be unconstitutional if done by a police officer on her own initiative, but more likely to be upheld if searches of that type specifically authorized by legislature or especially congress.

The book points out (w/o using the terminology) that the constitutional avoidance canon often leads to a comparable outcome: construing broad delegations of power as excluding constitutionally dubious areas, thereby forcing legislature/Congress to expressly authorize such acts

I think modern originalists can get benefits of structural approach b/c they can argue such outcomes are within the original public meaning of the Const’n, even if they can’t point to particular provisions being interpreted for things like sovereign immunity or anticommandeering

Black doesn’t really put limits on his structural approach. I think it could easily be applied to argue for numerous affirmative federal rights to government subsidized necessities, a point he doesn’t address.

One of the most fascinating things about the book is that he argues that many important constitutional rulings are fairly unpersuasive as a matter of pure clause-bound textualism, and could be explained much more persuasively through a structural approach.

He also contends that many rulings concerning substantive rights could've come out the same way under a structural theory, even if there were no Fourteenth Amendment. I think this argument is least persuasive as applied to criminal procedure rulings, which he addresses in passing

Black posits a list of hypothetical state laws burdening or discriminating against federal officials, arguing either a structural approach is needed to render them invalid or the 14th Amd must be stretched to prohibit them since they don't violate a particular Const'l provision

He seems to overlook the possibility of Congress passing laws barring such interference w/ fed'l functions & officials.Textualists/originalists would generally agree Congress can do so. If Congress doesn't, it's not clear courts must invalidate such interference as const'l matter

Black points out that Dormant Commerce Clause theory makes much more sense as as a structural interpretation of the Constitution than a textualist interpretation of the Commerce Clause.

The most fascinating descriptive thesis of Black's book is that many supposedly textual opinions are really implicitly based on a structural theory, but for institutional or legitimacy reasons the Court doesn't want to acknowledge that.

Some final thoughts for today about Black's book. He suggests some provisions in Bill of Rights may apply more extensively against fed'l gov't than when incorporated against states

One of his main reasons for structuralism is that it avoids 14th Amd state action requirement

His conception of structuralism at several points seems to blend into purposivism.

One major objection is that (in addition to overlooking separation of powers) his book does not identify any structural implications of the existence, importance, or sovereignty of states.

All of the aspects of structuralism he explores - the nature of the federal gov't, the gvt's relationships w/ citizens & states, and the nature of nationhood - result in limitations on state power. But he doesn't explore how structuralism can work the other way, in states' favor