The Paradoxical Structure of Constitutional Litigation

doctrines that undercut its central goal of intelligently and efficiently refining broad constitutional commands.Constitutional law is primarily a way of regulating governments.With respect to those constitutional provisions that confer rights on specific individuals, 4 one need not insist that these rights must inevitably trump countervailing governmental interests 5 to recognize that they should generally be protected by more than mere "liability rules" under which the government is entitled to "destroy the initial entitlement if [it] is willing to pay an objectively determined value for it."'6 Put differently, the overarching purpose of constitutional law is to deter or prevent deprivations of individuals' rights, and not simply to induce the government to internalize their costs or to compensate individuals who suffer them after the fact.7 Constitutional litigation is paradoxical in at least two important ways.First, the litigation system contains gaps between the incentives and 4. Some constitutional provisions are entirely structural and do not give rise to justiciable individual claims at all.For example, the Guarantee Clause provides that "[t]he United States shall grant to every State in this Union a Republican Form of Government."U.S. Const.art.IV, § 4. The Supreme Court has consistently held that the Clause confers no justiciable right on individual citizens who wish to challenge their states' form of government.See, e.g., Baker v. Carr, 369 U.S. 186 (1962); Pac.States Tel.& Tel.Co. v. Oregon, 223 U.S. 118 (1912); Luther v. Borden, 48 U.S. (7 How.) 1 ( 1849).By contrast, other constitutional provisions contain explicit "rights creating" language.(For an explanation of this term in the context of statutory interpretation, see Alexander v. Sandoval, 532 U.S. 275, 288-89 (2001).)For example, the First Amendment refers to "the right of the people peaceably to assemble," U.S. Const.amend.I, the Fourth Amendment refers to the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," U.S. Const.amend.IV, and the Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments refer to the right of citizens of the United States to vote, U.S. Const.amends.XV, XIX, XXIV, XXVI.Others use slightly less explicit language whose rights creation is nonetheless clear.For example, the Fourteenth Amendment prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law" or "deny[ing] to any person.., the equal protection of the laws," thereby clearly conferring an enforceable entitlement on individual citizens.5. This is the position taken in Ronald Dworkin's influential work.See