In the law, there is a concept known as a “chilling effect.”  Put most simply, it means that the potential reach of the law intimidates people into not exercising a potential constitutional right for fear of the severity of the legal consequence if a court finds that the law is constitutional and covers your proposed activity.    The claim of a chilling effect is most often made in the context of the First Amendment when a statute covers speech or expressive conduct.  A person challenging a broad law can claim that — even if their activity could be barred by a valid law and potentially violates the law under some reasonable interpretation — the law is subject to other reasonable interpretations that would bar constitutionally protected speech.  But the concept of a chilling effect exists in other contexts too.

One remedy to preclude the chilling effect of an unconstitutional law is to allow the subjects of regulations raise “pre-enforcement” challenges to the law.  The essence of a pre-enforcement challenge is that the plaintiff: 1) has been doing X; 2) would continue doing X but for the law; 3) is unable to continue doing X because she does not know if the new law is valid; and 4) believes that the law is unconstitutional.  A pre-enforcement action can lead to a “stay” which allows effected individuals to continue with their activities until the challenge is resolved with no legal consequences.   In the absence of a pre-enforcement challenge, somebody has to be brave enough to violate the law and risk the consequences if the law is upheld.  In essence, they volunteer to be the “test” case for the statute.   While test cases are not unusual as the exact operation of any new law or rule is unclear until after a couple of cases have worked their way through the system, the consequences of being wrong in your belief about how the law should be interpreted can be devastating for the person alleged to have violated the law.

After the passage of the Bill of Rights, the next amendment adopted was the Eleventh Amendment.    Article III allows a federal court to hear a case based on “diversity” jurisdiction.  One early case involved a resident of one state to sue a different state.  Now, traditionally, a government was immune from being sued in its own court (commonly referred to as “sovereign immunity”).  The Eleventh Amendment overturned that initial case.  By its plain text, the Eleventh Amendment only eliminates diversity jurisdiction by barring a non-resident from suing a state.  For true textualists, nothing in the text of the Eleventh Amendment bars a suit filed by a resident of a state against his own government.  However, over the years, the court have created their own rules for what the Eleventh Amendment means. Continue Reading...