Constitutional rhetoric meets constitutional litigation

In an email exchange, someone highlights ¶¶ 17-19 of the SB8 Complaint:

17. At bottom, the question in this case is whether Texas may adopt a law that sets about to “do precisely that which the [Constitution] forbids.” Terry v. Adams, 345 U.S. 461, 469–70 (1953) (striking down a Texas law attempting to insulate white-only political primaries from federal court review). 

18.The answer to that question must be no. Otherwise, states and localities across the country would have free rein to target federal rights they disfavor. Today it is abortion providers and those who assist them; tomorrow it might be gun buyers who face liability for every purchase. Churches could be hauled into far-flung courts to defend their religious practices because someone somewhere disagrees with them. Same-sex couples could be sued by neighbors for obtaining a marriage license. And Black families could face lawsuits for enrolling their children in public schools. It is not hard to imagine how states and municipalities bent on defying federal law and the federal judiciary could override constitutional rights if S.B. 8 is permitted to take effect. 

19.Plaintiffs urgently need this Court to put a stop to Texas’s brazen defiance of the rule of law and the federal constitutional rights to which Texans are entitled.

That sounds nice in the abstract. But it does not describe how constitutional litigation works. Federal courts do not stand ready to strike down invalid laws (because they do not, in fact, "strike down" anything) whenever a plaintiff asks. Nor are federal courts the only forum in which constitutional litigation occurs. There is a process, beginning with someone enforcing the law. Where that enforcer is a state actor and enforcement is imminent, rights-holders can go to federal court in what is (in this case) essentially an anti-suit injunction. When enforcement is not imminent or when the enforcer is not a state actor, it must follow a different process of defensive litigation in state court. The plaintiffs' argument is that the former process is constitutionally required as a matter of due process; that has never been the case.

Here is the analogy I have been using: A state enacts a defamation statute that is inconsistent with New York Times v. Sullivan (e.g., allows liability for any plaintiff on simple negligence). That law is invalid under prevailing First Amendment doctrine. But pre-enforcement litigation would be impossible, because there is no one under color charged with enforcing that law. The First Amendment would be available as a defense if and when a speaker is sued for his protected speech. And that is true of the parade of horribles in ¶ 18. The Constitution does not require anything more.