Geography Clause
The Constitution’s Geography Clause – DOJ Files Obscenity Suit in D.C. Will the Court Apply Local or National Community Standards?
Jul 13th
The DOJ just indicted several pornographers on charges of obscenity, choosing to file the suit in the District Court for the District of Columbia. Under Miller, what type of community standards will the court apply?
From The National Law Journal:
Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.
…
The evidence against Stagliano is two DVDs — “Jay Sin’s Milk Nymphos” and “Joey Silvera’s Storm Squirters 2″ — as well as a movie trailer downloaded from the Evil Angel site. An FBI agent bought the movies for $57.48 in December 2007.
In court papers, investigators describe the movies as having “numerous scenes of urination, use of enemas and violent bondage. In a number of scenes, participants ingested urine and excretion from the enemas.
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ( c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The Supreme Court and most lower courts have interpreted the “community standards” prong of the test to refer to the location where the material was sent. However, in October 2009, the Ninth Circuit in United States v. Kilbride held that national community standards should apply in a jury’s determination of Internet obscenity.
At the time Orin Kerr expressed some doubt about the 9th Circuit’s test:
“As a matter of law, I don’t find this particularly persuasive . . . Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.”
Yet neither Kilbride, nor United States v. Little in the 11th Circuit–which took a contrary position to the 9th Circuit–sought cert..
How will the DC District Court, and eventuallythe DC Circuit handle this case? Apply local community standards or national community standards? This case may provide a vehicle for the Supreme Court to review this doctrine, and perhaps clear up this muddled mess.
Mike Sacks has an excellent analysis at F1@1F breaking down the possible votes in this case.
I continue to question the validity of the Miller “community standards” test, and am cautious about reading a geography clause into the Constitution.
McDonald v. Chicago – The 2nd Amendment Does Not Have a Geography Clause
Jun 28th
I have argued in numerous posts that the Constitution does not have a Geography Clause. That is, how can a right in the Constitution mean one thing in one place, and mean a different thing in a different place. The Supreme Court has attached a geography clause in the context of First Amendment obscenity and Fourth Amendment reasonableness.
In today’s opinion, Justice Breyer would seek to place a geography clause on the 2nd amendment:
Third, the ability of States to reflect local preferencesand conditions—both key virtues of federalism—here hasparticular importance. The incidence of gun ownershipvaries substantially as between crowded cities and uncon-gested rural communities, as well as among the differentgeographic regions of the country. Thus, approximately 60% of adults who live in the relatively sparsely populated Western States of Alaska, Montana, and Wyoming report that their household keeps a gun, while fewer than 15% of adults in the densely populated Eastern States of RhodeIsland, New Jersey, and Massachusetts say the same.The nature of gun violence also varies as between ruralcommunities and cities. Urban centers face significantlygreater levels of firearm crime and homicide, while rural communities have proportionately greater problems with nonhomicide gun deaths, such as suicides and accidents. And idiosyncratic local factors can lead to two cities find-ing themselves in dramatically different circumstances:For example, in 2008, the murder rate was 40 timeshigher in New Orleans than it was in Lincoln, Nebraska.It is thus unsurprising that States and local communi-ties have historically differed about the need for gun regu-lation as well as about its proper level. Nor is it surpris-ing that “primarily, and historically,” the law has treatedthe exercise of police powers, including gun control, as“matter[s] of local concern.” Medtronic, 518 U. S., at 475 (internal quotation marks omitted).
The genius of our federal system ordinarily leaves this type of social problem to be worked out by state and local governments, without a nationally imposed solution excluding one choice or the other. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
The geography clause argument perverts Justice Brandeis’ argument that the states can function as laboratories.
I blogged about this issue here in some detail, but here is a snippet of my response:
A state cannot act as a laboratory by infringing a person’s freedom from unreasonable search and seizure because the person is dangerous. No more should a state be able to deny a person’s right to self-defense because it could be “dangerous.” The Federalism argument just seems rather weak.
Because the dissenters lost the battle in Heller and McDonald, if they cannot overturn these precedents, I expect future opinions to start putting limitations on this right based on the exigencies of the locality. The analogies from Second Amendment to First Amendment doctrine are quite strong. I intend to write on this much more in the future.
Grutter-izing the Second Amendment and the Constitution’s Geography Clause
Mar 15th
Professor Rick Hill wrote an interesting post on McDonald (H/T Adam U), called “Grutter-izing the Second Amendment.” Hills finds that arguments in McDonald were a modest disappointment for federalism fan.
Hill makes the argument that the contours of the Second Amendment should be defined in the laboratory of the states, and be based on the principles of federalism.
We need a theory of federalism and rights, not a theory about the proper linguistic etiquette for writing a brief. That is, we need some way to determine which governmental actor ought to regulate firearms. We have three candidates on the table — (1) federal courts using some policy-laden “balancing” test while pretending that they are interpreting the 14th Amendment; (2) Congress, using mostly the commerce clause; and (3) the States, using their reserved powers. If we focused on sensible federalism policy, then is it not obvious that the right answer, as a matter of sound federalism-and-rights policy, is (3)? And if our jurisprudence really requires us to ignore such sensible policy in favor of fly-specking of 19th century cases about oyster beds and speeches in the 39th Congress, then is our republic not truly ridiculous?
Since SCOTUS does not like making ridiculous policy, I suspect that they will Grutter-ize the Second Amendment – i.e., declare gun ownership to be a fundamental right that states cannot infringe without a really good reason but then allow states to regulate it all the same just so long as they are not too candid about it and undergo some ritual hazing by a federal judge to determine if their grounds for regulation are the least intrusive means for a blah, blah, blah. In short, we will get sensible decentralization but in a low, furtive, dishonest way. But perhaps you disagree with me about the policy merits of federalism for resolving our disagreements about guns. Consider, then, the following (after the jump):
The genius of our federal system ordinarily leaves this type of social problem to be worked out by state and local governments, without a nationally imposed solution excluding one choice or the other. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
I blogged about this issue here in some detail, but here is a snippet of my response:
A state cannot act as a laboratory by infringing a person’s freedom from unreasonable search and seizure because the person is dangerous. No more should a state be able to deny a person’s right to self-defense because it could be “dangerous.” The Federalism argument just seems rather weak.
Underlying Hill’s assumption is that the Second Amendment is an inferior right. While other criminal procedure protections should be held to a uniform federal standard, the right to keep and bear arms should not. I suppose Hill, like the City of Chicago, would argue that the Second Amendment is the only Amendment that results in people dying (i.e., guns kill people). I won’t contest with the empirics. I find that to be a futile process.
But how many violent criminals are released every year due to violations of Miranda and other criminal procedure violations?
During arguments in McDonald, Justice Scalia raised this point in response to Justice Breyer’s question about “balancing” the second amendment right (yes, the Justices frequently answer one another’s questions, especially Nino).
JUSTICE BREYER: To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don’t think it is several hundred and, moreover, that doesn’t matter. How do you decide the case?MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to whatJUSTICE BREYER: To be specific, suppose Chicago says, look, by banning handguns not in the hills, not hunting, nothing like that, nothing outside the city, in the city, we save several hundred human lives every year. And the other side says, we don’t think it is several hundred and, moreover, that doesn’t matter. How do you decide the case?MR. GURA: We decide that by looking, not to which side has the better statistics, but rather to what the framers said in the Constitution, because that policy choice was made for us in the Constitution.
JUSTICE BREYER: You are saying they can have — no matter what, that the city just can’t have guns even if they are saving hundreds of lives, they cannot ban them?
MR. GURA: The city cannot ban guns that are within the common use as protected by the right to arms.
JUSTICE SCALIA: There is a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?
MR. GURA: That’s correct, Justice Scalia, and as your opinion -JUSTICE
SCALIA: Well, why would this one be resolved on the basis of statistics? If there is a constitutional right, we find what the minimum constitutional right is and everything above that is up to the States. If you want to have, you know — I think we mentioned in Heller concealed carry laws. I mean, those are — those are matter that we didn’t decide in Heller. And you may have a great deal of divergence
from State to State, and on that I suppose you would do statistics, wouldn’t you? Or the legislature would.
MR. GURA: Well, Your Honor, we do agree that statistics are not important to determine whether or not a right -JUSTICE
SCALIA: For the judges. For the judges.
MR. GURA: That’s right.
JUSTICE SCALIA: But they would be for the legislatures.
MR. GURA: A legislature should respect the fact that there is a constitutional right at issue, and this Court in footnote 27 in Heller explained that under the Carolene Products paradigm, footnote 4, the rights enumerated in the Constitution are entitled to a greater measure of respect.
I like federalism. And I don’t like Judges defining contours of rights when they lack the skill. In fact, I am rather certain the Court will err on the side of over-regulation of guns. But I am conflicted when the Constitution sets a floor. To allow states to depart below that floor, whatever is, strikes me not only as bad policy, but unconstitutional. I reject the notion that the Constitution has a geography clause. Especially the 14th amendment, which meant to provide federal protection to the states. And yes, I realize this stands in tension with the Miller v. California standard.
Does the Constitution have a Geography Clause and Virginia v. Moore
Feb 11th
I don’t have time to blog about this at length, but take note of Fourth Amendment Federalism and the Silencing of the American Poor (H/T Legal Theory Blog)
In a recent case, Virginia v. Moore, the United States Supreme Court held that it was irrelevant under the Fourth Amendment that police made in arrest contrary to a state statute prohibiting arrest for certain minor violations. In doing so, the Court declared that the Fourth Amendment may not vary from “place to place.” This paper takes issue with that statement, both as being descriptively incorrect given contrary precedent and as being unwise constitutional policy. Specifically, the paper argues that poor, urban, racial minorities are ill-represented on matters of state criminal justice policy and lawmaking, though they receive better represetation of their views at the local level. To allow the state to bar arrests for minor offenses but to provide no remedy grants police discretion to violate the statute with impunity – violation most likely to be visited upon precisely the groups with the least political representation at the state level. That limited power, moreover, means that ordinary political mechanisms will not work to right this balance. Moreover, those groups most hurt by the state legislation are most likely to favor therapeutic over punitive approaches to crime. By disempowering these groups, the Court thus further amplifies excessively punitive punishment philosophies. To let the state recognize that its interest in arrest for minor offenses is too small to justify an arrest yet to ignore that conclusion in engaging in Fourth Amendment reasonableness balancing is thus to magnify existing criminal justice policy distortions and to undermine voice for those most affected by such distortions. The article ends with a response to seven likely objections to the argument.
This article has implications on some of my previous blog posts about whether the Constitution has a geography clause. That is, can a constitutional right mean different things in different places based on different circumstances? Or should it be immutable.
Overview of Amici Supporting City of Chicago in McDonald v. Chicago
Jan 7th
Yesterday was the deadline for Amicus Briefs supporting respondent, City of Chicago in McDonald v. Chicago. Alan Gura has posted most of the briefs at ChicagoGunCase.com. It is worth noting that there were over 30 briefs supporting Petitioner, McDonald, and approximately half that supporting Petitioner. It is also worth noting that many of the high profile Amici from Heller (e.g., ABA, DOJ, and others) did not bother supporting the City of Chicago. Also, the Brady Center, as well as the NAACP LDF filed a brief in support of neither argument (essentially conceding incorporation). Here is a brief summary of the briefs, with a bit of commentary.
- Educational Fund to Stop Gun Violence-
The Second Amendment should not be incorporated. See generally Chicago Resp’ts’ Br. But if it is, this Court should clarify that the Second Amendment protects the right to bear arms only for lawful purposes. See D.C. v. Heller, 128 S. Ct. 2783, 2813, 2815-16, 2816-17 (2008); infra Section II. Advocates for unfettered access to firearms argue that there exists in the Second Amendment an individual and constitutionally-protected right to keep and bear arms for the insurrectionary purpose of attacking so-called government “tyranny.” See infra
Section III. In District of Columbia v. Heller, the Court appears to suggest that the Second Amendment protects “the existence of a ‘citizens’ militia’ ” (i.e., one that exists apart from the democraticallycontrolled State militia) “as a safeguard against tyranny.” 128 S. Ct. at 2802; see infra Section III.A.2. This understanding of the Second Amendment’s purpose and scope is historically erroneous, dangerous, and inconsistent with the Court’s other decisions. - ADL-
Extremist individuals and groups, in particular, tend to share several characteristics: an intense fascination with firearms; a paranoiac distrust of government or a deep-seated hatred for particular minority groups- or both; and a willingness to engage in acts of shocking, often deadly, violence. Armed extremism leads to violent extremism with profoundly unsettling frequency and profoundly tragic effects. [J.B. The ADL discusses recent shooters, including James Von Brunn, who shot and killed a security guard at the United States Holocaust Museum in Washington, D.C., as an example of violent extremists using guns to justify draconian gun control law. As Jew who owns firearms, I find this position ludicrous.] - U.S. Conference of Mayors-
When gang members and drug dealers cannot obtain and carry firearms with impunity, in turn, their ability to use violence as a means of competing for control of drug markets is sharply circumscribed. The eighteenth-century version of the right to bear arms codified in the Second Amendment, however, imperils law-enforcement strategies with enormous promise in the fight against violent crime. The first eight amendments are properly applied against state and local governments by virtue of the Fourteenth Amendment when they secure rights implicit in the concept of ordered liberty. The available historical evidence suggests that the eighteenth century conception of the right to bear arms has given way to a more vigorous conception of state and local police powers. Moreover, in high-crime, gang ridden neighborhoods, it may be effectively impossible to grant a right to bear arms while preserving ordered liberty. The Second Amendment’s right to bear arms accordingly is not enforceable against state and local governments by virtue of the Fourteenth Amendment. - “Public Health Organizations”-
While the numbers of non-fatal shootings are troubling, this brief focuses on the most extreme consequences of improper firearm use—that is, the taking of human life. The studies detailed below illustrate a powerful link between the prevalence of guns—especially handguns—on the one hand, and a heightened risk of suicide, homicide, and fatal gun shootings, on the other. The research further indicates that women and children, including adolescents, are particularly threatened by firearms. These data suggest that the types of
statutes challenged in this case may prevent a substantial number of murders, suicides, and unintentional firearm deaths. - Rep. Carolyn McCarthy, and 53 members of Congress-
“Reversing the decision below would not only cast doubt on the constitutionality of the decision of the citizens of Chicago that, within the confines of their city, the dangers of handguns outweigh any benefits that may be supposed to flow from their possession, but also coudl throw into question virtually every state and local firearm regulation.” - States of Illinois, Maryland, and New Jersey-
Pursuing a variety of approaches to gun-control legislation, the individual States have balanced the legitimate interests of gun owners against the need, which varies with locale, to protect their residents from the devastating effects of gun violence. In this manner, the States capably have performed their role as “‘laboratories for experimentation’” in an arena “‘where the best solution is far from clear.’” Grutter v. Bollinger, 539 U.S. 306, 342 (2003) (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)). [J.B. For my thoughts on the laboratory argument, see Point #4]Incorporating the Second Amendment would undermine these efforts, and neither that provision nor the Fourteenth Amendment was understood to demand such interference with state prerogatives. The Second Amendment was codified to protect the militia from elimination by the federal government, not from overreaching by the States. And the Fourteenth Amendment was designed to prevent discriminatory disarmament of Southern blacks, not restrict the States’ traditional authority to pass generally applicable gun laws. The Second Amendment resists incorporation for the additional reason that—as the only Bill of Rights provision conferring a right to possess an item designed to kill—the right to bear arms uniquely requires government oversight, and the democratic process in the States is far better suited than the federal courts to set limits on firearm possession and use. - “Early American History”-
The right of individual selfdefense was left unchanged by the Second Amendment. As before, it was a natural right recognized by common law and subject to appropriate regulation under the governmental contract with the people. Protecting the right to keep and bear arms for militia purposes was the dominant reason behind the SecondAmendment. - “Early English History”-
However, contrary to discredited scholarship upon which Heller relied, the right to “have arms” embodied in the
English Declaration of Rights did not intend to protect an individual’s right to possess, own, or use arms for private purposes such as to defend a home against burglars (what, in modern times, we mean when we use the term “self-defense”). Rather, it referred to a right to possess arms in defense of the realm. Accordingly, the right to own or use arms for private purposes is not a right deeply rooted in our nation’s tradition, and should not be incorporated as against the states by the Fourteenth Amendment.The evidence compiled by scholars discussed herein shows that the Second Amendment gave individual United States citizens the right to take part in the militia to defend their political liberties and to restore their Constitution should, as Blackstone wrote, “the sanctions of society and laws [be] found insufficient to restrain the violence of oppression.” It is this right of “self-preservation” and “resistance” that the Boston Town Council invoked in 1768 and the American colonies exercised when they rebelled against England
- “Historians and Legal Scholars”-
This Court should reject Petitioners’ argument that the Privileges or Immunities Clause incorporates the whole of the Bill of Rights against the States. The total incorporation theory is radical in two respects. First, particularly when viewed from the perspective of the framing-era public, it would have worked a massive realignment of power between the States and the federal government. Second, embracing total incorporation would require the Court to overrule more than 135 years of unbroken—indeed, repeatedly reaffirmed—precedent. Both of these concerns militate against accepting the total incorporation theory absent convincing evidence about what
the Clause actually meant to the States that ratified it. II. Petitioners’ evidence fails to meet this standard.
First, nothing in the plain language of the Clause suggests that an observer from the framing era would read it to incorporate the Bill of Rights. To the contrary, prevailing legal opinion at the time did not recognize the rights granted by the first eight amendments as “privileges or immunities” guaranteed against States by virtue of national citizenship. And the Clause’s closest textual analog, the Privileges and Immunities Clause of Article IV—which predated the Bill of Rights—has never been read to encompass the first eight amendments. - Villages of Winnetka & Skokie, et al.-
- Chicago Bd. of Education, et al.
The right to arms, even for personal self-defense, is fundamentally different from all other liberties retained by individuals in society, because of the inherent lethality of firearms. We tolerate few restrictions on the right to free speech because of its salutary effects, and because “sticks and stones may break my bones but words can never hurt me,” as the children’s rhyme goes. Guns, on the other hand, will kill you. - “Professional Historians”-
It would therefore be contrary to early practice under the Fourteenth Amendment to block states and cities from enacting reasonable gun regulations, including bans on specific types of dangerous weapons, such as the laws at issue in this case. As state constitution drafters, courts, legislatures, and commentators alike have agreed, our constitutional framework gives states and local governments the authority they need to balance the public safety interests impacted by the possession and use of dangerous weapons such as handguns. The regulations at issue in this case are consistent with our nation’s historical regulation of dangerous weapons. - Criminal Justice Professors-
The City of Chicago’s handgun ban has been an effective part of its efforts to reduce handgun crime since 1982. It has helped reduce handgun homicides involving family members and intimate partners. It has also favorably impacted Chicago’s overall handgun homicide rate relative to other cities once economic and demographic factors are considered. The Chicago handgun ban has saved hundreds of lives.
Chicago’s handgun ban also has reduced the supply of handguns, which reduction is correlated with a reduction in handgun crime. The ban has also protected Chicago’s citizens from the increase in crime associated with increased availability of handguns. Finally, the arguments raised by amici in support of Petitioners with respect to the efficacy of the handgun ban fail for several reasons. In particular, the data actually show that, post-ban, the number of handgun homicides in homes has decreased and that Chicago residents are now safer in their homes than they were before the ban. - Cities, Cook County, and Police Chiefs-
In other words, the Amendment’s purpose makes clear that it is essentially a “federalism provision” designed to protect the States and their citizens from excessive federal power. In view of the Second Amendment’s stated purpose, it makes no sense to incorporate the right to bear arms against the States. At bottom, the Second Amendment right cannot be considered implicit in the concept of ordered liberty, so as to justify its incorporation under the Due Process Clause of the Fourteenth Amendment. Instead of promoting social order, justice and peace, it functions in situations where the rule of law has broken down, and the States may have to call their citizens to militia duty under their emergency powers. [J.B. This is a slight variation of the Respondent's argument as to why the right to keep and bear arms is not implict in the concept of ordered liberty]While the notion of citizens using force of arms to protect themselves from harm is not unreasonable or unjustified in a vacuum, it must be tempered in a community setting in which each citizen must conduct himself so as not to cause unnecessary injury or death to fellow citizens. - Prosecuting Attorneys-
Extension of the Second Amendment’s restrictions to the states will undermine regulation of violent criminal conduct at every stage of the criminal justice process. If possession of a firearm is presumptively legal, police will be less able to intervene and prevent violent crime before it occurs. Incorporation of the Second Amendment would also promote routine challenges to firearms possession charges on Second Amendment grounds and thereby significantly increase the burden on prosecutors in obtaining convictions for violation of state firearms laws and defending them on appeal. Incorporation would cutions in litigation similar to litigation under the Fourth Amendment’s exclusionary rule. Indeed, it also would complicate Fourth Amendment litigation itself by threatening to redefine “probable cause” and “reasonable suspicion” in firearms prosecutions.
The implications of incorporation would be dramatic in scope. Ninety percent of firearms convictions
are obtained at the state level. These convictions are based on laws that have been carefully
calibrated to local conditions based on experience. Subjecting states and localities to an unbending national
standard concerning the right to bear arms would ignore the importance of these local solutions and substantially undermine the ability of elected representatives to take actions to ensure public safety. The position of state and local prosecutors throughout the nation is quite different from that of federal prosecutors who, by definition, operate under a single national standard. - Oak Park Citizens Committee-
This Court has incorporated against the states only those enumerated constitutional rights that are “implicit in the concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 324-25 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784 (1969). This phrase reflects not only a theoretical standard, but also a practical reality. Incorporated rights “are all to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U.S. 1, 10 (1964). Thus, as this Court observed when incorporating the right against self-incrimination against the states, incorporation makes sense when it would be “incongruous to have different standards” concerning the exercise of the right, regardless of whether it is the state or the federal government
which is threatening the personal interest the right protects. Id. at 11.
The right of self-defense has unquestionably been the subject of varying state standards throughout our nation’s history. There is nothing incongruous about states and local communities adopting different standards concerning the role handguns play, if any, in ensuring the right of selfdefense, especially in light of the vastly different circumstances that communities face regarding the public safety implications of handguns. Incorporating the Second Amendment right to own arms for self-defense would entail developing uniform federal standards for the use of those protected firearms in self-defense. To incorporate the Second Amendment
right to possess handguns in one’s home would portend a massive federal intrusion into the administration of the right to self-defense that is as unwarranted as it is unnecessary. Oak Park asks only for the right to decide for itself what weapons best protect the public health and safety of its own citizens and their homes. [J.B. this is actually an interesting argument, and ties into my previous posts about whether the Constitution has a geography clause. Can a constitutional right mean one thing in Place A, and a different thing in Place B]
New Article: Can Congress Overturn Kennedy v. Louisiana? The Fallacy of the “National Consensus”
Jan 6th
Forthcoming in the Harv. JLPP, Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence,” and here is the abstract by Richard Re(H/T Sentencing Blog):
As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.” While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis. Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy’s democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.
Re provides a very good explanation, and critique of Kennedy’s approach.
I discuss the fallacy of the “national consensus” in Pandora’s Box, pp. 57-62 beyond the context of the 8th Amendment. The “national consensus” is one of the approaches Professor Balkin and the Constitution in 2020 crowd seek to use to recognize new rights and evolving standards of decency.
The fallacy of recognizing national consensuses is highlighted by the aftermath of Kennedy v. Louisiana. If the Supreme Court could not properly analyze the extent of the consensus among state laws governing the sentencing of child rapists, an area that any first-year law student could understand with the proper Lexis search, how can we expect judges to understand consensuses on nebulous and polarizing social issues—on which public opinion ebbs and flows—such as the right to health care, the right to education, or reproductive rights?
Balkin himself acknowledges that “[i]n 1973, when Roe was decided, the right to abortion was not a privilege or immunity of national citizenship” because only four states had adopted the rules Roe laid down. He counters, however, that “most of the public now regards a basic abortion right as among the guarantees of citizenship” and, in the long run, “it should eventually be protected under the declaratory model of the Privileges or Immunities Clause.” But how is the Court to determine society’s views to a point that gives them constitutional authority?—particularly in light of the complications in as comparatively simple a task as surveying state laws regarding capital punishment for child rapists. Kennedy v. Louisiana thus belies Balkin’s attempt to portray the right to abortion as a privilege or immunity of national citizenship by virtue of a national consensus.
Moreover, what constitutes a national consensus? Half the population? Two thirds? Ninety percent? To paraphrase Justice Brennan’s quip, why not whatever five duly confirmed justices think? Should the Court commission its own Gallup Poll? What standard should the consensus be based on? How long should it exist? These are inherently subjective determinations, not reducible to judicially or legislatively manageable standards.
Finally, and perhaps most significantly from a constitutional perspective, for a court to determine that simply because “most of the public” considers some right to be among the privileges or immunities of citizenship—not that the public thinks in terms of “privileges or immunities” or any other constitutional terms of art—ignores the rights of minorities. That is, the Constitution is countermajoritarian in many ways—as would be expected from a charter that establishes a republic, not a pure democracy. The Constitution provides for the indirect election of the president through an electoral college and, before the Seventeenth Amendment, for state legislatures to select senators. Impeachment requires super-majorities, as does the constitutional amendment process—which is why Balkin, Ackerman, and others propose constructive amendment theories. All these provisions reflect a fear of oppressive majority rule and aim to prevent factions from seeking economic advantage and overwhelming our system of liberty.
Finally, why limit this analysis to consensus among states? Why not consider consensuses among nations? For example, Justice Kennedy has looked to foreign and international law to establish norms with respect to executing minors—and thus confirm his understanding of the Eighth Amendment. Why then not look to European conventions and treaties to recognize consensuses on rights among modern, progressive peoples to confirm our understanding of the Fourteenth Amendment? These are such divisive and controversial issues that, ultimately, a consensus model would “just [be] giving effect to the [Court’s] own preferences.”
This discussion of national consensuses is closely related to my previous posts about whether the Constitution has a geography clause? Should the meaning of the Constitution change based on what legislators do, or based on different circumstances in different locations? Or is it fixed? Even self-proclaimed originalists seem to accept these doctrines without challenging them on originalism grounds. Stay tuned. I’m working on it.
Instant Analysis of the Respondent Brief of the City of Chicago in McDonald v. Chicago
Dec 31st
Here is my Instant Analysis of the city of Chicago’s Respondent Brief in McDonald v. Chicago. You can download the brief here. For my thoughts on McDonald and Privileges or Immunities, see my article, co-authored with Ilya Shapiro, titled Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States, forthcoming in the Georgetown Journal of Law & Public Policy.
In short, Chicago argues:
I. THE DUE PROCESS CLAUSE DOES NOT INCORPORATE THE SECOND AMENDMENT RIGHT TO KEEP AND BEAR ARMS.
A Provision Of The Bill Of Rights Applies To The States Under The Due Process Clause If It Is “Implicit In The Concept Of Ordered Liberty.” Regulation Or Prohibition Of Fire- arms, Particularly Handguns, May Reasonably Be Thought To Preserve, Not Intrude On, Ordered Liberty
II. THE COURT SHOULD ADHERE TO PRECEDENT REJECTING INCORPO- RATION UNDER THE PRIVILEGES OR IMMUNITIES CLAUSE
Even If Viewed De Novo, The Histor- ical Record Provides No Basis For Imposing The Second Amendment On The States. Petitioners Fail To Carry Their Bur- den Of Showing That This Court Should Abandon Its Traditional Due Process Approach To Incorporation
I have only given this brief a cursory glance, but a few things jump out at me.
1. First, the Respondents take on the “implicit in the concept of ordered liberty” incorporation test is a new one for me.
Bill of Rights provisions are incorporated into the Due Process Clause only if they are implicit in the concept of ordered liberty . . . Thus, Chicago and Oak Park may reasonably conclude that in their communities, handgun bans or other stringent regulations are the most effective means to reduce fear, violence, injury, and death, thereby enhancing, not detracting from, a system of ordered liberty
Because handguns are so well adapted for the commission of crimes and the infliction of injury and death, stringent handgun regulations, including prohibitions, can be reasonably thought to create the conditions necessary to foster ordered liberty, rather than detracting from it.
Because guns lead to violence, in order to promote liberty, the states must be able to ban guns. To eliminate the states ability to ban gun actually decreases liberty. This is a very curious definition of liberty. Under this interpretation, in order for some people to be free from violence, others need to be forcibly disarmed and denied of their liberty.
2. Second, the Respondents fall into the trap of considering originalism at the wrong time. When considering the right to keep and bear arms as applied to the states, the key year is 1868, and not 1791. Yet, they rehash the debates from Heller about the right during the time of the Revolution. While they discuss the ratification of the 14th amendment, this discussion of the ratification of the 2nd amendment has limited utility.
Second Amendment, that history does not support incorporation. Although a right to fire- arms for personal use was recognized in a variety of sources of law that pre-existed the Constitution, District of Columbia v. Heller, 128 S. Ct. 2783 (2008), makes clear that it was not included in the Bill of Rights for its own sake or to protect it against the political process; rather, it was codified to protect the militia by eliminating the threat that the federal government would take away the arms necessary for militia service. Nothing in the congressional debate over the Amendment suggests any view that a private arms right unconnected to preservation of the militia was thought implicit in the concept of ordered liberty. The scope of the Second Amendment right— weapons in common use—also reflects its purpose of protecting the militia, rather than an individual right related to self-defense, since the Second Amendment protects weapons regardless of whether they are useful for self-defense.
The congressional debate surrounding Madison’s proposal for the Second Amendment tends to confirm that conclusion. If the Second Amendment right were thought essential to protect a non-militia-related personal liberty from governmental intrusion and from the political process, some trace of that belief would likely have surfaced. But nothing in the con- gressional debate over Madison’s proposal for the Second Amendment suggests any view that a private arms right unconnected to preservation of the militia was essential. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins, 169-76, 185-91 (Cogan ed. 1997); Jack Rakove, The Second Amend- ment: The Highest Stage of Originalism, 76 Chi.-Kent L. Rev. 103, 127-28 (2000).20
3. Third, in their treatment of Slaughter-House, the Brief omits any reference to the near-universal academic consensus that it was wrongly decided. The best argument they make finds that the Justices on the Slaughter-House court were 20 years removed from the 14th amendment, and were in the best position to understand the original meaning of the P/I clause. This is mildly persuasive, but I would have preferred to see substantive responses to the literature showing how Slaughter-House was correct.
4. Fourth, their reliance on Federalism to justify the ban is questionable. While the states can, and should be, laboratories to experiment, legislatures are still bound by the Constitution as a floor.
The genius of our federal system ordinarily leaves this type of social problem to be worked out by state and local governments, without a nationally imposed solution excluding one choice or the other. See United States v. Morrison, 529 U.S. 598, 618 (2000) (“[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”).
A state cannot act as a laboratory by infringing a person’s freedom from unreasonable search and seizure because the person is dangerous. No more should a state be able to deny a person’s right to self-defense because it could be “dangerous.” The Federalism argument just seems rather weak.
5. Fifth, the arguments for stare decisis should have been expected. Yet, the Petitioners do not ask for the Court to displace the modern substantive due process jurisprudence, contrary to the Respondent’s assertions.
The current rule is workable and venera- ble; significant reliance interests are in place; and there is nothing petitioners cite that was not known to and considered by the Court whose Members actually lived through the Civil War and Reconstruc- tion. Adopting petitioners’ view would throw into doubt the rights of aliens and corporations; make the Grand Jury Clause and Seventh Amendment appli- cable to the States; and unsettle the legal status of unenumerated rights, both those that have been recognized and those that have not. Stare decisis concerns are of overwhelming force in this case.
Overruling Slaughter-House and its progeny at this late date would upset strong reliance interests, throw the structure of constitutional law applicable to the States into disarray, and serve no useful purpose.
Furthermore, to call Slaughter-House venerable is tenuous. It is almost universally reviled and disagreed with. But, reinvigorating the privileges or immunities clause need not necessarily upset the apple cart. The Respondents insist that PEtitioners argue that the entire Due Process Jurisprudence should be displaced. Such is not the case. In fact, Gura is very careful to say that the two doctrines can live side by side. The Pandora’s Box Respondent’s fear is not even hinted at by Gura and the Petitioners.
6. Sixth, Respondents also argue that the right to keep and bear arms should mean different things in different places, based on local concerns.
Firearms are designed to injure or kill; conditions of their use and abuse vary widely around the country; and different communities may come to widely varying conclusions about the proper approach to regulation. Although other approaches are possible and may be effective elsewhere, it cannot be concluded that easy and widespread availability of firearms everywhere is necessary to ordered liberty.
I have blogged about this elsewhere, but I reject the notion that the Constitution has a “geography clause.” A right to be free from unreasonable searches and seizures should mean the same thing in Chicago as it does in Cheboygan. The Second Amendment should receive the same treatment.
7. Seventh, I’m not quite sure why, but the brief sees fit to discuss international gun control laws in England, Canada, and Australia.
The legal systems of England, Canada, and Australia each have their roots in the same English law as does this country, and each should be seen as a country in which “ordered liberty” is valued. Yet each of them imposes stringent regulations on firearms that would be impermissible or at least suspect under Second Amendment standards.
That these countries have a similar common law origin is largely irrelevant. Since our separation from the Queen two centuries ago, our nations have diverged in may aspects, especially in gun rights.
In summary, the Constitutional Law in this brief is at a real premium. It is mostly a policy argument about the dangers of legalizing guns, an argument that has been fought, and in my opinion, lost in Heller.
I’ll provide some more analysis later.
In a word, fail.
Is Internet Obscenity Based On National or Community Standards? 9th Circuit Thinks National, and Constitution Does Not Have Geography Clause.
Oct 30th
I have previously queried whether the Constitution has a geography clause. That is, do Rights Mean Different Things in Different Places? Orin Kerr writes about a new 9th Circuit case, United States v. Kilbride that holds that national standards, and not community standards should govern Internet obscenity.
The Courts have imposed a geography clause in several areas, including fourth amendment protections, second amendment gun control laws (an oxymoron if I ever heard one), and most famously in first amendment obscenity laws.
In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ( c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In explaining the choice of community standards instead of national standards, the Court wrote:
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.
Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: “It is my belief that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’ . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”
But the 9th Circuit found different standards should apply on the Internet, and rather look to a community standard, the courts should look to a national standard. In Kilbride, Judge Fletcher writes:
The divergent reasoning of the justices in and out of the majority in Ashcroft v. ACLU, 535 U.S. 564 (2002) leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here. Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. . . .
Justices O’Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. . . . Justices O’Connor and Breyer were joined by Justice Kennedy’s opinion, as well as Justice Stevens’s dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns.
At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling.
Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. The constitutional problems identified by the five justices with applying local community standards to regulate Internet obscenity certainly generate grave constitutional doubts as to the use of such standards in applying §§ 1462 and 1465 to Defendants’ activities. Furthermore, the Court has never held that a jury may in no case be instructed to apply a national community standard in finding obscenity. To “avoid[ ] the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the Internet.
Kerr aint buying it:
“As a matter of law, I don’t find this particularly persuasive . . . Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.”
But aside from a potential misreading of 30 years of Supreme Court precedent (this is the 9th Circuit after all), does Judge Fletcher have the concept right? Especially in the context of the Internet, where information freely flows from around the world, why should a person who sends an e-mail from San Francisco to a Georgian be judged according to Macon’s community standards? While I am not sure about the validity of community standard in general, as announced in Miller, it makes even less sense to apply community standards on the Internet.
If this creates a circuit split that ultimately does go up to SCOTUS, as Kerr suggests, this may make for an interesting article. In the works, on the list.
Do Rights Mean Different Things in Different Places? My Friend's Harv.L.Rev. Note Says Yes, and Persuades Me
Oct 15th
This morning I blogged, and asked whether the Constitution has a geography clause, and whether it was correct that constitutional liberties should mean different things in different places. I argued that the Fourth Amendment means the same thing in Bismarck, North Dakota, as it does in Chicago. So why should First and Second Amendment rights mean different things in different places.
But am I right about the Fourth Amendment?
A good friend pointed me to a Harvard Law Review note he published.
Check out the unsigned note THE FOURTH AMENDMENT’S THIRD WAY. The author notes:
This Note confronts a “fundamental question about the fourth
amendment” that lies beneath all of its doctrinal puzzles, namely, “what method should be used to identify the range of law enforcement practices that it governs and the abuses of those practices that it restrains.” 4 It does so, in particular, by examining the relationship between the Fourth Amendment and state law. This Note argues that the Amendment should be interpreted as dynamically incorporating state law, and it explains how this interpretive method injects substantive
legal content into the vague constitutional text and reconciles the tension between the Amendment’s two clauses.5 It contends that the dynamic incorporation method is pragmatically and normatively superior to the major alternatives while remaining justified by constitutional theory.Among the numerous potential sources of legal content for the
Fourth Amendment, one in particular has firm roots in the Amendment’s jurisprudence yet has been subject to very little scholarly analysis. That source is state law.From a textual perspective, dynamic incorporation offers clarity and common sense. The first clause of the Amendment provides the general rule: unreasonable searches by state actors are unconstitutional. Reasonableness should not be a fuzzy term with fluctuating meaning and does not call upon the federal judiciary to engage in value judgments or to balance competing interests. Rather, what is reasonable is that which is lawful under state law; inversely, what is unreasonable is that which is unlawful under state law. This interpretation is sensible, given that the “English common-law tradition to which the [American] revolutionaries appealed often tied legality to ‘reasonableness.’”40
How would this work in practice?
First, courts would ask whether, under state law, the challenged police actions would constitute an actionable offense if a private party had committed them.42 If the answer is yes — for example, if the search would have been actionable trespass — then the search would violate the Fourth Amendment. If the answer is no — for example, if common law decisions of
the state’s judiciary had established an exception or defense to the trespass — then the actions would be constitutional.Second, searches or seizures conducted pursuant to a warrant
would be constitutional provided that the warrant had been validly issued. Ancillary questions concerning the procedures for actions taken under a warrant, such as the applicability of the knock-and-announce requirement,43 obviously cannot be tested under state law because private actors do not obtain warrants, and therefore no analogous body of state law deals with how private actors may interact when one has a warrant.44 Accordingly, questions surrounding the constitutionality of searches conducted pursuant to warrants cannot be analyzed using the dynamic incorporation approach. This constitutes a gap in the method, and answers would have to be sought elsewhere.45
I like the idea, but I do not think the dynamic incorporation approach would apply to the First and Second amendment, from a textualist perspective, in the way the note argues it applies to the Fourth Amendment.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As the note discusses, the magic word of reasonableness lends itself well to a reference to state law and dynamic incorporation. I agree thus far.
But I do not see the First and Second amendments, from a textualist perspective, being susceptible to a dynamic incorporation method referring to state law.
First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Second Amendment (got this one memorized by now):
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
These rights do not seem to allow a referent to state law to understand the boundary of the right, whereas the Fourth Amendment speaks of reasonableness.
So I will modify my original thesis. A right can mean different things in different places if the text of the amendment lends itself to such an analysis.
On further reflection, the “contemporary community standards” makes no sense under the First Amendment as written. The text of the amendment would foreclose any referent to state or local law. Same for the Second Amendment. These tests seem largely untenable.
I definitely plan on writing about this in the future. Stay tuned.
Does the Constitution have a Geography Clause? How can rights mean different things in different places?
Oct 15th
If the Constitution is in fact the Supreme Law of the land, why should it mean different things in different places.
This concept is most prevalent in First Amendment jurisprudence where obscenity law considers “contemporary community standards.” Something may be obscene in Bismarck, North Dakota, but not obscence in San Francisco, California based on some nebulous concept of local standards.
This is clearly correct under modern First Amendment Supreme Court jurisprudence, but is it correct constitutionally? Does the Constitution permit the rights of a citizen of North Dakota to free speech to differ from the rights of a Californian? Does this seem right.
The Government takes full advantage of these different standards, and frequently prosecute obscenity trials in more socially conservative areas. See this Volokh post on the Obama Administration shifting away from this tactic.
Another common application of this doctrine pervades gun control laws. Pundits frequently argue that Chicago needs different gun laws than Cheyenne. Candidate Obama frequently made this point on the campaign trail. Heller seems to adopt this notion. But why? Where in the Second Amendment is there a carve-out for local concerns.
Does the Fourth, Fifth, or Sixth Amendment mean something different in New York or Los Angeles? All other rights seem to be universal, except the First and Second Amendments. These are two of my favorite liberties, so this is troubling.
As an aside, it strikes me that one could make a plausible argument that the “contemporary community standards” test for obscenity violates the Equal Protection Clause to the extent that it necessarily results in different determinations of what is obscene, depending upon locale. Yes, I know that geographic location is not a suspect class, but I see no reason why it couldn’t be, especially when it results in rather arbitrary distinctions as to what is or is not criminal under Federal Law.
This is a topic I would like to develop further. Stay tuned.
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