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Today during oral arguments in Skinner v. Switzer, Chief Justice Roberts inquired about the meaning of the phrase “necessarily implies” in Heck v. Humphrey and several other cases. To reiterate how important the word “necessary” is, counsel argued that the Supreme Court italicized it twice in the same paragraph.

CHIEF JUSTICE ROBERTS: The critical formulation in Heck necessarily implies — is a little difficult. I mean, the adverb points one way and the verb points the other. And how — “necessarily implies” strikes me as a little less conclusive than you seem to think.

MR. OWEN: I think if that word were in isolation, Your Honor, there might be more uncertainty about what “implies” means. But if the Court looks at the cases — looks at Prieser, looks at Heck, looks at Edwards, looks at Nelson, looks at Hill — what you’ll see is the word “necessarily” is in all those cases. And, in fact, in Hill — or maybe it was Nelson; one of the two Florida cases — the court italicizes it twice in the same paragraph. And –

This video, with Eric Stoltz playing Marty McFly, blew my mind.

See also (less cool, but still pretty cool):



Professor Neil Seigel has an interesting new piece on the McDonald Plurality’s decision to rely on due process rather than the privileges or immunities clause. Here is the abstract of Prudentialism in McDonald v. City of Chicago:

At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake.
The Court’s recent decision in McDonald v. City of Chicago illustrates the practice of system-centered prudentialism. Judging from the concerns raised by several Justices at oral argument, especially Justice Scalia, members of the McDonald plurality appeared to reason prudentially in deciding to use Section One of the Fourteenth Amendment’s Due Process Clause — and not its Privileges or Immunities Clause — to apply the Second Amendment to state and local governments. But the Court reasoned prudentially in substantial part because it was troubled about the consequences for the American constitutional system of opening up a Pandora’s Box of new assertions of unenumerated rights, not because its own legitimacy was threatened.
McDonald illustrates the importance of understanding why judges may decline to fully acknowledge their own practice of prudentialism. McDonald also illustrates the need for constitutional theory to accommodate the practice.

Ilya Shapiro and I made a very similar point in our article 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, 8 Geo. J.L. & Pub. Pol’y 1 (2010) (SSRN). We published this article before McDonald was argued, but accurately predicted that based on fears of opening up a Pandora’s Box (the namesake of our article) of unenumerated positive rights, the Court would choose–incorrectly–to rely on substantive due process rather than the Privileges or Immunities Clause.

Seigel’s prudentalism analysis jives nicely with the pragmatic, and characteristically un-originalist tact that Justice Alito and his crew took.

As Shapiro, and I, along with co-author Alan Gura argued in The Tell-Tale Privileges or Immunities Clause, 2010 Cato Sup. Ct. Rev. 163 (2010) (SSRN), the Plurality, in particular Justice Scalia abandoned any sort of coherent constitutional doctrine in order to accomodate their pragmatic needs for stability in the law:

But ultimately, Justice Scalia’s familiar observations ring hollow, coming as they do as a lengthy postscript to his declaration prefer- ring application of substantive due process—a doctrine requiring him to apply those rights, and only those rights that he believes are fundamental—while scorning an originalist approach based on historical analysis of how the Fourteenth Amendment’s framers understood the text they ratified.

It is quite epic at 103 pages, but it looks like a doozy. Take a look at The Eleventh Amendment and the Nature of the Union in the Harvard Law Review. Here is the abstract:

Leading theories of the Eleventh Amendment start from the premise that its text makes no sense. These theories regard the Amendment as either under-inclusive, over-inclusive, or an incoherent compromise because it prohibits federal courts from hearing “any suit” against a state by out-of-state citizens, but does not prohibit suits against a state by its own citizens. Two of these theories would either expand or contract the immunity conferred by the text of the Amendment in order to avoid this absurd or anomalous result. This Article suggests that the Eleventh Amendment made sense as written when understood in its full historical context. In particular, the Articles of Confederation empowered Congress to require states to supply men, money, and supplies, but gave Congress no power to enforce its own commands. Prominent Founders initially argued that the only way to fix the Articles was to give Congress coercive power over states. But the Convention, and the ratifiers, ultimately rejected this idea because they feared that the introduction of such power would lead to a civil war. To avoid this danger, the Founders designed the Constitution to give Congress legislative power over individuals rather than states. This novel approach eliminated the need for coercive power over states, and provided Federalists with a key argument for adopting the Constitution rather than amending the Articles. Anti-federalists threatened to undermine this case for the Constitution by arguing that the state-citizen diversity provisions of Article III — authorizing suits “between” states and out-of-state citizens — could be construed to permit suits against states (and thus imply federal power to enforce any resulting judgments against states). Although Federalists denied this construction, the Supreme Court proceeded to read Article III to permit out-of-state citizens to sue states. Federalists and Anti-federalists quickly joined forces to restore their preferred construction of Article III. In adopting the Eleventh Amendment, they saw no anomaly in prohibiting “any suit” against a state by out-of-state citizens because they did not understand the Constitution to authorize any suits against states by in-state citizens. Federal question jurisdiction did not expressly authorize such suits, and the Founders likely would not have perceived any real need for such jurisdiction given their understanding that the Constitution conferred neither legislative nor coercive power over states. Because the Eleventh Amendment, as written, made sense in light of the nature of the Union, the absurdity doctrine cannot justify departing from the terms of the Amendment.

Update: My friend Steven Menashi made a similar argument last year about the individual nature of the 11th Amendment in the Notre Dame Law Review in his article Article III as a Constitutional Compromise: Modern Textualism and State Sovereign Immunity. Here is the abstract:

This Article challenges the scholarly consensus that a textualist reading of the Constitution cannot support a broad constitutional principle of state sovereign immunity. In doing so, it develops a fuller account of textualist constitutional interpretation, recognizing that the original public meaning of a text may be informed by commonly held philosophical presuppositions or background political principles. Legislative compromise, moreover, pervaded the whole constitutional design, whether it took the form of precisely worded provisions that enact particular policies or imprecisely worded provisions that invoke abstract political principles.

The ratification of Article III contained just such a legislative compromise over abstract principles of state sovereign immunity. A potentially ratification-blocking minority of Antifederalists opposed granting federal courts jurisdiction over suits by individuals against states. In order to win ratification of the Constitution, Federalists gave to Article III a construction that incorporates a background principle of state sovereign immunity. That construction formed the original public understanding of Article III and the compromise struck at ratification. A textualist approach should honor that compromise. The ratification process gave political minorities the right to insist on such a compromise, so it would violate the process values underlying the Constitution to conclude, as most scholars do, that Federalist assurances respecting state sovereign immunity formed no part of the constitutional bargain.

While many scholars have long criticized the Supreme Court’s state sovereign immunity jurisprudence as inconsistent with other constitutional values, modern textualism and public choice theory recognize the centrality of compromise in the lawmaking process. The Constitution, too, was the product of a ratification process that involved political compromises. This insight, however, has been applied to constitutional interpretation in only a limited way. The few scholars who have applied the insights of public choice theory to constitutional interpretation have argued that a textualist approach to state sovereign immunity would read the Eleventh Amendment narrowly in order to respect a possible legislative compromise embedded in its precise text. But the limited textualism of scholars such as John Manning and Lawrence Marshall leads to a strained and implausible reading of the Eleventh Amendment because it fails to recognize the original understanding of the initial bargain embedded in Article III.

Jess Bravin at WSJ reports that Montana is defending a provision of its campaign finance law that seems to be in tension with Citizens United. The AG of Montana argues that the facts and circumstances of Montana requires a different standard. Returning to a common theme on this blog, I ask whether the Constitution–the First Amendment in this case–shouldmean different things in different places?

After the Supreme Court freed corporations and unions to pay for advertisements supporting or attacking candidates for federal office, many states concluded that their own restrictions on such electioneering were doomed as well.

Not Montana. Sued by three corporations seeking to influence the Nov. 2 legislative election, Attorney General Steve Bullock is arguing that Montana’s Corrupt Practices Act of 1912 remains constitutional—even though the Supreme Court scotched similar provisions of the 2002 federal Bipartisan Campaign Reform Act, known after its sponsors as McCain-Feingold.

At least nine of the 24 states with campaign laws threatened by Citizens United have repealed or suspended them, according to Jennie Bowser of the National Conference of State Legislatures. Only Montana is known to be defending its law, she said.

“Montana has a record, a history and a present that’s different from what the Supreme Court had in front of it,” says Mr. Bullock, a Democrat elected in 2008. “In Montana, we have a record that shows those expenditures did corrupt and do corrupt.”

Specifically, the AG argues that the reasoning of Citizens United does not apply to his state:

Mr. Bullock says some of the Supreme Court’s reasons for overruling the federal law don’t apply to his state. Justice Kennedy’s opinion found that Federal Election Commission requirements, numbering nearly 2,000 pages, were so “onerous” that many corporations would rather not make political expenditures than risk a fine.

“In Montana,” Mr. Bullock says, “it takes two minutes to register as a political committee and our commissioner of political practices will help you fill out the form.” Instead of the FEC bureaucracy, “the whole commissioner’s office is in a converted house and it’s essentially one room.”

This issue is interesting for a few reasons. Many progressive supporters of Citizens United may find this argument appealing, in much the same way that Justice Stevens wrote that Chicago is a dangerous place, and they should be able to provide different levels of constitutional protection. But, replace campaign finance spending, with, say, the establishment clause, and look how quickly this issue turns. Let’s say Montana is a very homogeneously Christian state, and in some localities, 100% of the citizenry follows a single faith. In such a place, there is zero objection to prayer in public schools. In such a case, can the First Amendment mean something else, and permit prayer in school?