Could one get a declaratory judgement on which parts of the Constitution *are* self-executing?

Question

It has recently been determined by a controversial Supreme Court decision that Section 3 of the 14th Amendment is to be enforced by legislation drafted for the purpose by Congress, and not by the states (and perhaps not by federal courts?), casting some doubt on whether it is "self-executing", with the minority asserting that it is.

This has surprised quite a lot of people, including, arguably, many of the sessions of Congress that were supposed to have been responsible for passing that legislation.

One might want to prevent this sort of surprise from happening again. In particular, one might want to know if there are any other parts of the constitution that one has been relying on being followed but which actually need enforcing legislation to operate.

Would it be possible for someone to file for a declaratory judgement in a federal court of suitable jurisdiction as to the self-executing-ness of all the remaining parts of the Constitution for which it has not been determined? Can constitutional interpretation even be done by anyone other than the Supreme Court?

Answer 1

No, a U.S. federal court will not issue a free-standing declaration of constitutional meaning outside of a case or controversy. This is a jurisdictional limit.

By way of comparison, Canada does provide a path for governments to refer what is called a "reference question" to a provincial appellate court or the Supreme Court of Canada. These are frequently asking for an answer about what the constitution would require or allow.

You also ask

Can constitutional interpretation even be done by anyone other than the Supreme Court?

Yes, this happens all the time, with varying degrees of legal significance. E.g.:

• by secretaries of state (interpreting section 3 of the 14th amendment to mean a candidate was barred from a primary ballot),
• the President (e.g. when they choose to sign or veto legislation),
• front-line executive (e.g. police officers, when they take or avoid certain actions in the belief that they are constitutional or unconstitutional),
• lower courts, and
• by society generally (e.g. academic writing and other expressions of committments).^*

Of course, many of these interpretations are subject to judicial review if challenged by a person with standing.

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^{* Comments have suggested that society plays no significant role from a legal perspective in the development of constitutional meaning. However, the theory of "democratic constitutionalism" recogizes the role that society's varied "substantive constitutional visions" play in the evolution of American constitutional law. See e.g. Robert C. Post & Riva B. Siegel, "Democratic Constitutionalism" in Jack M. Balkin & Riva B. Siegel, eds., The Constitution in 2020 (Oxford University Press, 2009). This is clearly of a different nature than the other elements on this list, but worth mentioning nonetheless.}

Answer 2

In theory, the Constitution is explicit about this. It never specifically states that a provision is self-executing, but there are numerous places where it calls out things that are not self-executing by phraseology such as "as the Congress may from time to time ordain" or "The Congress shall have Power to." The only rational interpretation is that all other provisions are self-executing. However, the Supreme Court is a political body, not a rational one.

Furthermore, unlike other courts in the US, the Supreme Court doesn't have to make decisions of law before completing its findings of fact. This means that the Supreme Court has the power to interpret the law in whatever way is favorable to their personal position on the case presently before them (or for Clarence Thomas, the personal position of his clandestine benefactors). Offering a declaratory judgement would undermine this ability by creating a precedent without advancing an agenda or appeasing wealthy donors, so is clearly against the interests of the justices and would never happen.