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Tuesday, July 08, 2008

State law as the basis for federal constitutional doctrine

Kennedy v Louisiana was the latest SCOTUS decision to survey state legislation as a basis for inferring American constitutional norms. Aside from the Eighth Amendment cases that use state legislation as the basis for inferring a national “consensus” supporting or condemning a practice, there are several important Due Process cases that survey state laws to infer whether some particular state’s law offends some evolving norm of decency, including Glucksberg, Lawrence v Texas, and Troxel.

As a certified federalism nut, I'm inclined to support this method of filling in vague constitutional provisions -- “cruel and unusual punishment,” “due process,” etc. It is easy to see how such a state survey can be an ersatz substitute for the Article V amendment process, thereby legitimizing what would otherwise be pure judicial ipse dixit. But Kennedy suggests to me that the practice presents two, perhaps insurmountable difficulties. First, by effectively nationalizing and constitutionalizing the legislative outcome in some critical mass of states, the SCOTUS raises the stakes of individual state’s legislation enormously, inducing national interest groups to exert enormous pressure on what would otherwise be purely state concerns. Second, it is a difficult business trying to interpret the sound of state legislative silence -- states' failure to enact some challenged law -- and I am doubtful that SCOTUS is equal to the task.

I’ll say a bit more about both of these two difficulties after the jump. But I should declare up front that I find myself in the unusual state of having no opinion on this issue -- yet I have promised to produce an essay on the topic by next Wednesday. Any thoughts, citations, or advice on this topic, therefore, would be even more appreciated than usual.

First, is it a good idea to nationalize state legislative debates? By counting up states to resolve federal constitutional controversies, SCOTUS raises the stakes of individual state’s legislation enormously. A proposal in the South Dakota legislature to, say, impose the death penalty for child rape or expand grandparents’ visitation now has federal constitutional consequences. The likely result is that national interest groups, Right and Left, will descend on the state house to exert pressure on the state legislative outcome wildly out of proportion to the immediate legislative stakes. I am not sure that this is a desirable outcome: When national mass-mail outfits (NARAL, the NRA, etc) battle it out in a state, the states are arguably transformed into echo chambers for D.C.-based groups, not independent assessors of local opinion. Compare the effect of giving state legislatures the power to choose federal Senators. This practice often caused state legislative elections to turn on the state legislative candidates’ pledges to support one of the state’s candidates for U.S. Senate and the national issues on which those candidates run. By the time that the Seventeenth Amendment was ratified, numerous state legislatures were effectively selected on the basis of a state-wide Senate election – destroying the ability of any state legislator to campaign on a local platform. Rather than provide state influence over Congress, state legislative selection nationalized the state legislatures.

Second, when state legislatures fail to enact some measure, this failure might be due to circumstances having nothing to do with public opinion regarding the measure – for instance, the press of more urgent business or the belief that existing SCOTUS precedent prohibits the measure. (Justice Alito plausibly complained that the latter motive – belief that Coker prohibited child rape statutes -- explained why states had not enacted such laws. If Alito was correct, then, by inferring a consensus against child rape death penalty from state inaction, the Court was simply looking in a mirror and finding its own opinions reflected back). One might usefully compare the problem of interpreting state legislative inaction with the problem of inferring whether congressional inaction suggests acquiescence in administrative agencies’ decisions not to regulate. The efforts by Massachusetts v. EPA (on pages 8-9 of the slip opinion) to distinguish FDA v. Brown & Williamson indicate how evaluating such inferences can be a colossal headache. I doubt that SCOTUS could make such inferences about legislative silence for fifty state legislatures with any degree of plausibility.

As I noted above, I really do not have any firm opinion on this topic, and I need to get one soon. So your comments are, even more than usual, very welcome.

Posted by Rick Hills on July 8, 2008 at 11:03 AM | Permalink


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I find the state-counting parts of the recent Cruel and Unusual Punishment opinions as lame as the next scholar, but I think the blame is being doled out unfairly. Here is a Clause that everyone agrees evolves over time and that textually calls for an assessment of something as subjective as "cruel[ty]." It is hard to imagine a situation in which it is more proper for the Court to use its own powers of moral reasoning (either as a test in itself or as an attempt to tap into broader cultural ideas about the relative cruelty of particular punishments). But Justice Scalia and his minions have made it so unacceptable for judges to forthrightly use their own judgment that Justice Kennedy has to trump up some clunky, faux-objective tests to cloak what's going on. Yet another classic example of Justice Bully at his worst.

Posted by: Andrew Siegel | Jul 9, 2008 5:02:47 PM

Second, it is a difficult business trying to interpret the sound of state legislative silence -- states' failure to enact some challenged law -- and I am doubtful that SCOTUS is equal to the task.

This is the problem. Not only can state inaction have nothing to do with public opinion, I just don't see how you can legitimately infer from a state's choice to not make child rape a capital crime to the conclusion that that state thinks punishing that crime with execution would be cruel, wildly disproportionate, or beyond the pale of decency. Maybe the state's worried about giving child rapists an incentive to kill their victims, maybe they have some other public policy reason in mind, maybe they're just not crazy about the idea but don't think it would be fundamentally indecent. Then you have the one-way ratchet problem. How is a new consensus ever allowed to develop now that the Court's put its foot down? That is, on what basis could the Court ever overturn Kennedy now that it's made it impossible for the indicia of a different consensus to emerge? Non-binding referenda? If whatever the national consensus is is how we determine what's cruel and unusual, they might as well scrap the whole state-counting business and commission a Gallup poll. That would at least be more accurate and allow for new consensuses to emerge.

Posted by: Asher | Jul 9, 2008 12:06:34 AM

If you're larry alexander or fred schauer (which, to the best of my knowledge, you're not, but just roll with the hypothetical for a second), and perhaps if you're larry solum, you think the job of the supreme court is to "settle" socially divisive issues authoritatively, reducing political discord. If so, then I would think your supreme court would be interested to see what's happening in state courts, as evidence of conflict. But the court should then look at them as it looks at circuit splits: it should be more inclined to act where the states were deeply and irresolvably divided, not where the split is basically going to resolve itself anyway. (And maybe also step in to chasten outliers, which I know is a pretty standard story of what the court does with states...)

Also, you'd then have a very broad interpretation of cases like Michigan v. Long, so that the states couldn't keep simmering under the banner of "state" constitutional law. I think I've published that point somewhere.

Posted by: BDG | Jul 8, 2008 3:52:14 PM

Yes, the 8th Amendment cases try to make a textual argument for their reliance on state law. But the Due Process cases "count states" with just as much gusto. Consider, for instance, Justice Kennedy's opinion in Lawrence v Texas in which he totes up the number of states that have criminalized same-sex intercourse to show that our legal traditions did not support Texas's law. Consider, likewise, Glucksberg's counting up the states that had re-affirmed their bans on physician-assisted suicide. Boy Scouts of America v. Dale surveys state laws regulating public accommodations to conclude that such laws generally cover only commercially oriented enterprises. Troxel surveys state laws on visitation to determine that every state aside from Washington gives the custodial parents' views about the wisdom of grandparents' visitation special weight. And so forth: The practice of surveying states' laws to determine whether a particular state law violates some principle "deeply rooted in this Nation's history and tradition," as Moore v. City of East Cleveland puts it, is not confined to the 8th Amendment context.

And thanks for the Jacobi citation, Dan.

Posted by: Rick Hills | Jul 8, 2008 3:44:25 PM

if you haven't already seen it, there was a piece a couple years ago by Tonja Jacobi at NW.
The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus
The Supreme Court's cruel and unusual punishment jurisprudence increasingly relies on state legislation to establish whether a national consensus has evolved against particular forms of punishment. This article argues that trends in state legislation should not be a basis for interpreting the Eighth Amendment. Using state legislation to establish a national consensus is contrary to basic notions of federalism, and is so methodologically indeterminate as to be entirely subjective. The states were intended to be independent from one another's policy preferences, to allow them to act as policy-making laboratories for the nation. Resting constitutional interpretation on the preferences of a majority of states is antithetical to the federal system. In application, the use of state legislation creates doctrinal chaos. The Supreme Court cannot agree on how to characterize, group or count state legislation. Once legislation is counted, the Court cannot agree on what actually constitutes a "consensus." Although the Court justifies its reliance on state legislation on the basis of its alleged objectivity, this uncertainty means that the use of state legislation is more subjective than traditional doctrines, such as culpability and proportionality. The lack of a clear standard as to what constitutes a national consensus has resulted in questionable findings, which in turn are relied on, creating an increasingly lax standard of cruel and unusual jurisprudence.

Posted by: Dan Markel | Jul 8, 2008 2:37:20 PM

Rick -- Isn't the problem you identify unique to Eighth Amendment jurisprudence, given that "cruel and unusual" must be measured by reference to what Warren called "evolving standards of decency"? I guess I always took the Court's 8A cases not as using state practice to "fill in" the meaning of federal constitutional text, but to illuminate whether individual practices were truly "unusual." If so, doesn't that suggest that the concerns you raise aren't as pronounced, or, at least, that your real complaint might be with the current _test_ for "unusual-ness"?

Posted by: Steve Vladeck | Jul 8, 2008 2:15:22 PM

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