Framing Transactions in Constitutional Law
Levinson, Daryl J., The Yale Law Journal
Common-law rules and adjudication are structured around discrete transactions between strangers. The prevailing, classically liberal, model of tort, contract, and property cases features atomistic individuals who interact only at the point of a discontinuous event, sharply limited in space and time. In the case of a tortious collision, for example, the unit of legal analysis, or "transaction," is intuitively defined by the self-contained, harm-inflicting interaction that disrupted the otherwise unrelated lives of the two parties. The focus of adjudication is on the harm to the plaintiff, which can be measured by the marginal deviation from her position or welfare just prior to the collision with the defendant. This model of "transactional harm" operates so ubiquitously and uncontroversially in most common-law cases that we seldom even recognize its significance: Transactional harm is the basic conceptual mold that shapes human interactions into legally cognizable events.
Constitutional cases, like common-law ones, are typically conceptualized as discrete transactions in which government inflicts harm on some individual by making her worse off relative to some baseline position or, under equality rules, relative to some reference individual or group. In the constitutional context, however, the model of transactional harm becomes immediately and irremediably problematic. The problem is that in constitutional law we quickly lose our intuitive grasp on what counts as a transaction for purposes of identifying harm. Unlike the paradigmatic private parties in common-law cases, whose lives intersect only at the point of some discontinuous interaction, government and citizens are not strangers to one another. Quite the contrary, government and citizens, individually and collectively, are engaged in a continuous relationship--one that plays out over a historical time frame and over a scope as broad as the public sphere. When constitutional law borrows the model of transactional harm, it must somehow slice this ceaseless and complex course of dealings into adjudicative transactions for the purpose of evaluating whether government has inflicted a constitutionally cognizable harm. But in the absence of a discrete common-law collision between strangers, constitutional law has no criteria for isolating transactions from the background relationship between government and citizens.
As a result, the "frames" that define constitutional law transactions, when recognized as such, inevitably seem arbitrary and unjustified. And without any way of fixing frames, the entire model of transactional harm falls apart. Most constitutional law regimes ask whether some individual has been harmed by government with respect to some qualitative interest, like speech, property, or equality. Any attempt to answer this question, however, will founder on the difficulty that government and citizens, in the course of their ongoing relationship, continuously pass countless harms and benefits back and forth. The question of whether government has harmed some individual citizen (or vice versa) is meaningful only relative to some transactional frame that determines how much of that relationship, which of the multitudinous benefits and harms, should be included within the constitutionally relevant transaction. All the rest, left outside the transactional frame, will dissolve into the background or baseline from which harm is measured. (1) It all depends on how you slice it. Lacking any natural joints along which to cut, courts and theorists carving out constitutional transactions are left to rely upon inconsistent, manipulable, and normatively opaque intuitions. The results of constitutional cases turn on the location, size, and shape of often-invisible transactional frames that are positioned prior to any deliberation over the meaning or purposes of constitutional rights. This is the basic problem of "framing transactions" in constitutional law. …