Why the Supremacy Clause is No Obstacle to a State-Specific Bill of Rights

Every time I present my federalism-based approach to the Cruel and Unusual Punishments Clause, where the word "unusual" refers to the law of the State where the federal crime occurred, I am hit with the same response: what about the Supremacy Clause? Inherent in my claim is that a given sentence for a federal crime might be "cruel and unusual punishment" in one State but not another given the variation in state law. Because federal law is supreme to state law, the argument goes, state law cannot dictate the content of federal law.

First, let's dispense with the notion that it is somehow novel that the Constitution might impose different constraints in different States. There are at least two areas of current jurisprudence where this is already the case: the definition of obscenity under the First and Fourteenth Amendments and the requirement of effective assistance of counsel under the Sixth and Fourteenth Amendments. In Miller v. California, the Supreme Court put its imprimateur on a definition of obscenity that hinged on the contemporary values of a particular State. Thus, the very same material might be obscene and therefore unprotected by the First and Fourteenth Amendments in one State, and non-obscene and therefore protected speech under the First and Fourteenth Amendments in another State. And as recently as last year, in Cullen v. Pinholster, the Court has judged the adequacy of a defense counsel's performance against the norms prevailing in a particular locality or jurisdiction. There, the Court chided the dissent for providing no support for the conclusion that the performance of defense counsel in that case was "inconsistent with the standard of professional competence in capital cases that prevailed in Los Angeles in 1984" (emphasis added). Distinguishing a prior case, the Court noted that "in that case the defendant's trial counsel specifically acknowledged a standard practice for capital cases in Maryland that was inconsistent with what he had done" (emphasis added).

This is not to say that the Constitution means something different in different States, for the meaning of the Constitution can be articulated in a uniform way: the First and Fourteenth Amendments mean in all States that speech is unprotected if it is patently offensive and appeals to a prurient interest based on contemporary community standards in that State; the Sixth and Fourteenth Amendments mean in all States that counsel is ineffective if her persormance falls below reasonable standards of professional performance in that State; and the Eighth Amendment means in all States that a federal punishment is cruel and unusual if it is harsher than the harshest punishment meted out (or meted out for the same offense) in that State. It is only to say that the application of these constitutional rules will be different in different States.

Second, the very reason the Bill of Rights was demanded by the Anti-Federalists was that they feared the vast expanse of power granted to the federal government by the Commerce, Necessary and Proper, and Supremacy Clauses of the Constitution. The combination of these Clauses, they felt, would lead to the annihiliation of the States. They demanded the Bill of Rights to carve out particular areas of state sovereignty in the face of what they saw as the assumption of absolute federal sovereignty by virtue of the Supremacy Clause. Centinel, one of the most influential Anti-Federalist writers, intoned ominously:

Lest the foregoing powers should not suffice to consolidate the United States into one empire, the Convention[,] as if determined to prevent the possibility of a doubt, as if to prevent all clashing by the opposition of state powers, as if to preclude all struggle for state importance, as if to level all obstacles to the supremacy of universal sway, which in so extensive a territory, would be an iron-handed despotism,

included the Supremacy Clause. It would be ironic in the extreme if the Anti-Federalist vision of the Bill of Rights were deemed defeated by one of the very provisions that prompted their demand for a Bill of Rights. To put it another way, the Supremacy Clause cannot trump the Bill of Rights, because the Bill of Rights trumps the Supremacy Clause.

Ultimately, the Supremacy Clause is irrelevant to this issue. If the best interpretation of a particular provision of the Bill of Rights is that its constraints differ from State to State, the Supremacy Clause cannot change that. So the federalism-based construction of the Cruel and Unusual Punishments Clause stands or falls on its own. Either it is a valid view of what at least the Anti-Federalists contemplated by the Clause, in which case the Supremacy Clause can stand as no impediment, or it is not, in which case the Supremacy Clause is unnecessary.