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Three Difficulties With Using State Constitutional Rights to Infer Federal Constitutional Rights:
I really appreciate Eugene's thoughtful response to my earlier questions about the relevance of state constitutional rights to whether courts should infer or an analogous federal constitutional right. At the same time, I'm not yet persuaded. Here's why:

  First, I have concerns with Eugene's approach from the standpoint of constitutional fidelity. I fear that looking to state constitutional provisions for new federal constitutional rights risks nullifying the decisions that Congress and the ratifying states actually made in amending the Constitution under Article V. As I understand it, the first Congress that debated and enacted the Bill of Rights looked largely to the provisions found in then-existing state constitutions for ideas. They selected the state constitutional amendments they wanted, and they declined to pick others.

  It seems to me that Eugene's proposed methodology risks effectively nullifying those decisions. It seems a bit like a constitutional version of "heads I win, tails you lose." Those state constitutional provisions actually adopted become part of the federal constitution, and those that weren't adopted become of the federal constitution anyway because they are "traditional" (at least if they are sufficiently common in the states). I would prefer a constitutional methodology that draws a sharper line between Constitutional amendments that were actually adopted and those that weren't.

  Second, I think Eugene's approach has troubling implications for federalism. If surveying state constitutions means that minority approaches tend to become constitutionally forbidden, you cause a shift in power from the states to the federal government. Diversity among the states is replaced by a one-size-fits-all rule from Washington, DC. This does happen in the Eighth Amendment setting, granted, but at least there's a textual hook: the word "unusual" suggests an inquiry into relative frequency, and state laws could help shed light on that. But here we seem to be interpreting no particular text at all, and the federalism concerns strike me as troublesome.

  Finally, the relevance of state constitutional practice seems at best modest under existing law. I agree with Eugene that legal history and tradition is often an important part of constitutional decisionmaking. But I think the role of state law in interpreting unenumerated rights is narrower than Eugene suggests. In the substantive due process context, for example, cases like Washington v. Glucksberg that have tried to root substantive due process in historical practice treat history as a necessary condition but certainly not a sufficient one. That is, newfangled rights don't get recognized, but the fact that a right has a long historical pedigree does not mean that it gets constitutionalized. Indeed, the same cases that try to root the doctrine in history warn that courts must be "reluctant" to expand substantive due process, "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court." Glucksberg.
chiefbreakevryting:
At a certain point, analysts of a particular issue have to make so many assumptions to permit them to arrive at a conclusion, that they just as well assume a conclusion in the first place. It seems to me that this is a discussion about what mechanism should be used to determine whether and what unenumerated rights are included in the Constitution. Not only are there supposedly unenumerated rights, there are also unenumerated mechanisms for incorporating those rights.

Looking to state consititutions assumes that drafters of those documents recognized those rights and we can then conclude that the ratifiers of the federal Constitution would be aware of those rights as well. Then we assume that since they didn't say anything about them, or refer to the Ninth and Tenth Amendments for support, that these rights are somehow understood to be Constitutional. Other mechanisms assume that the rights held by British subjects at the founding set a floor on rights and these therefore are incorporated in the Constitution, absent a contrary, explicit grant of power to the government. Harlan felt that penumbras of indisputable rights provided a mechanism for determining the constitutional status of other rights, Breyer thinks that anything that might be useful to his opinion performs the same function and Kennedy thinks his inherent sense of standards of decency lurks somewhere between the lines.

The difficulty with reasoning in this way is that the assumption of particular mechanisms lead to understandably varying conclusions as to whether or not a particular right is Constitutional. The seeds determine the plant.
7.18.2008 4:42pm
MarkField (mail):

I fear that looking to state constitutional provisions for new federal constitutional rights risks nullifying the decisions that Congress and the ratifying states actually made in amending the Constitution under Article V. As I understand it, the first Congress that debated and enacted the Bill of Rights looked largely to the provisions found in then-existing state constitutions for ideas. They selected the state constitutional amendments they wanted, and they declined to pick others.


I think this concern minimizes the states rights purpose of the BoR (not that that was the only purpose, but it surely was *a* purpose). If we see the BoR as a limitation on the power of the federal government ("Congress shall make no law..."), then we don't need to worry so much that some rights were omitted. At the least, we might ask ourselves first "What did they expect Congress to have power to do, and therefore what did they feel the need to guard against?" If federal power in fact expanded beyond those original expectations, we might well consider interpreting the protections to account for that.

The 9th A also seems quite relevant here. Your point is a good one, but it risks becoming an application of "inclusio unius", precisely what the 9th was intended to avoid.


I think Eugene's approach has troubling implications for federalism. If surveying state constitutions means that minority approaches tend to become constitutionally forbidden, you cause a shift in power from the states to the federal government. Diversity among the states is replaced by a one-size-fits-all rule from Washington, DC.


I'm not sure I see the problem here. When it comes to deciding whether something is a right, what the courts are essentially doing is limiting governmental power. It seems to me that someone committed to federalism might approve limitations on federal power.

Of course, the 14th A being what it now is, that may well impose limits on some states which didn't have those limits before. That doesn't bother me much if 49 states have a provision and 1 doesn't. At 25/25, that's a greater concern. But from a Burkean perspective, it's precisely the gradual, historical development of a practice to encompass the general expectations of the citizen body which is important. As long as due regard is given to that concern, I would think Burke himself would approve. After all, what's the point of treating states as "laboratories" if we don't ultimately accept the results of their experiments?
7.18.2008 4:48pm
OrinKerr:
Mark,

I think the trouble with your first point is that we're talking about the Due Prcoess clause (I think!), which applies to the states.

As for your second, point, federalism is about avoiding a centralized decisionmaker; it's not about limiting government power generally, but limiting federal government power. Also, I don't see the relevance of Burke here: this seems far too finely grained of an issue for Burke to be relevant. Finally, your point about laboratories seems to be that we need to stop the experiment to justify having the experiment. But that assumes the experiment is over at a particular time and there is indeed a winner; in constitutional law, unlike in science, I'm not so sure that moment is clear.
7.18.2008 5:10pm
MarkField (mail):

I think the trouble with your first point is that we're talking about the Due Prcoess clause (I think!), which applies to the states.


Fair enough, up to a point. But it's hard to apply rights against the states without at the same time applying them against the federal government. See Bolling v. Sharpe. In the absence of rights, federal power expands and there's no countervailing force.


it's not about limiting government power generally, but limiting federal government power.


Sure, but, again, it's hard to do one without doing the other under current law. I guess the SCOTUS could go back to enforcing broad limits on federal power vis a vis the states, but that seems pretty unlikely these days. The alternative, which I prefer as an individual, is that if the courts won't enforce limits on power that way, they do so via the recognition of rights. It remains an open question, of course, which rights and to what extent.


I don't see the relevance of Burke here: this seems far too finely grained of an issue for Burke to be relevant.


The way I understand Burke's view of the "rights of Englishmen", he was concerned to protect those rights which developed organically within the society over a long period of time. They are prescriptive rights in the sense of long-established traditions generally accepted by the nation.

State constitutional provisions seem to me useful as evidence of such rights. I wouldn't make them the only source, but treating them as *a* source seems justified.


Finally, your point about laboratories seems to be that we need to stop the experiment to justify having the experiment. But that assumes the experiment is over at a particular time and there is indeed a winner; in constitutional law, unlike in science, I'm not so sure that moment is clear.


I do assume that there is a winner; otherwise I wouldn't consider a right as recognized widely enough (leaving due flexibility to decide exactly when that happens).

As for stopping the experiment, I don't see it so much as stopping the experiment as recognizing the point where we've achieved an improvement. The alternative is that state governments might be unanimously constrained (extreme case) while the feds remain uninhibited in the exercise of power. That hardly seems desirable.
7.18.2008 5:50pm
OrinKerr:
Fair enough, Mark -- thanks for your interesting thoughts, as always.
7.18.2008 6:06pm
Kazinski:
OK:

I fear that looking to state constitutional provisions for new federal constitutional rights risks nullifying the decisions that Congress and the ratifying states actually made in amending the Constitution under Article V.

Except of course if you are looking at provisions that existed at the time or nearly contemporanously with the enactment of the Constitution and Bill of Rights. Of course that wouldn't be without any problems, such as the case where the Supreme Court of Massachusetts decided that John Adams wrote the right to gay marriage into the Commonwealth's constitution but nobody noticed for a few centuries.
7.18.2008 6:32pm
ReaderY:
I agree with Professor Kerr's fundamental point that the Supreme Court's substantive due process approach, by which the Court essentially gets to strike down laws a majority of its members doesn't like, is fundamentally flawed, and that the framers of Constitutions should be the ones who decide which rights are fundamental and which aren't. The framers of the Constitution carefully considered giving the Judiciary a veto over legislation, but declined to do so. The Judiciary should honor that choice.

The people are entirely capable of enacting rights into the constitution if they think them important. The fact that they haven't done so means that they haven't.

That said, I am entirely in favor of construing new legislation strictly and not denigrating the common law, including traditional rights, unless the legislation is very clear. But if the legislature wants to do it they can.
7.18.2008 7:11pm
Clayton E. Cramer (mail) (www):

I think this concern minimizes the states rights purpose of the BoR (not that that was the only purpose, but it surely was *a* purpose).
Uh, no. Madison's introductory speech specifically rejected a states rights purpose. See 1 Annals of Congress 451, 1st Cong., 1st sess.

Madison explained that there were some "respectable characters" who opposed the Constitution because it "controls the ordinary powers of the State Governments." But he rejected that reason for a Bill of Rights, and explained that "the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have long been accustomed to have interposed between them and the magistrate who exercises the sovereign power..."

The only part of the Bill of Rights that could be in any sense considered to be states rights is the Tenth Amendment--one out of ten.
7.18.2008 7:42pm
MarkField (mail):

Uh, no. Madison's introductory speech specifically rejected a states rights purpose. See 1 Annals of Congress 451, 1st Cong., 1st sess.


Madison may have, but that doesn't mean everyone did. *Some* of the ratifiers had a states rights purpose.
7.18.2008 8:22pm
J. Aldridge:
First, I have concerns with Eugene's approach from the standpoint of constitutional fidelity. I fear that looking to state constitutional provisions for new federal constitutional rights risks nullifying the decisions that Congress and the ratifying states actually made in amending the Constitution under Article V.

Lemme ask you something, Orin... Why is there State constitutions, bill of rights, state supreme courts, and even armed defense forces?
7.19.2008 8:01am
devil's advocate (mail):
I tend to take Orin's point , especially in the pre-incorporation environment that ought to be presupposed for discussion of first principles of the applicability of state practice aas dictating federal rights -- especially to the extent that federal rights, once found, impose a bar to state action.

In a federalist sense, the idea of state and federal competition, not just state vs. state experimentation is of course fundamental, but should be guided by the constitutional provisions that enact it. And any imposition simply on the basis of ht emajority of states adopting it does not necessarily evoke this competitive mechanism that was supposed to protect the individual. In point of fact it has every chance of being a majority faction having its way with the minority.

It seems to me obvious that trends in half, or two thirds of the states are just that. The experiment is complete not when the federal government tells states what policies to adopt, but when all the states adopt a certain policy.

So if you have some holdout, Alabama or [insert name of state].... that doesn't want to integrate its schools, I don't see a deprivation of life, liberty or property. Thus even if 49 other states have decided the question differently, the solution is not for the federal government to impose the will or tradition of the majority on the minority.

If blacks who decide to set up their own schools in Alabama or engage in other property and liberty based self-empowerment are attacked or deprived of life, liberty or property, I have no problem with federal enforcement.

In my mind the distinction tends between negative and positive rights insofar as substantive due process and/or unenumerated rights. Thus rights against interference, including minimum wage laws, and doctor and patient deciding on abortion are properly lumped in this area.

I don't mean to restart the abortion debate, and obviously a Burkean approach might suggest that the settled tradition of society was to protect the life of the fetus essentially to the extent of recognizing its rights to life. I am unswayed by the idea of equivalence with the adult mother's rights but it is certainly a strong argument of tradition and respect that might inform an inquery. Protection of those unable to protect themselves is not necessarily a rights argument but is a very serious tradition argument underlying prohibitions on animal cruelty and the like. I do think it is possible for society to constrain such behaviors and find this a close call (much closer than the obvious right to contract and the other solutions or realities that made the switch in time largely window dressing. see, e.g., epstein's How the Progressive Rewrote the Constitution citing the downward spiral in child labor, length of workweek, and other areas of labor law thought by progressives to be solved by the overthrowing the court and the constitution -- and all well prior to approval of laws on these subjects.)

In any event the idea is that it may be the predilections of the judges but substantive due process limits government. To the extent that the rights of the people to express themselves through democratic government are frustrated, I do not see that as a life, liberty or property question. Essentially the 'right' to elect and obtain certain dispositions through government is a positive right, i.e. not a right at all. See also the absurd prohibition on traditional 'senates' in the states that the courts have imposed.

None of this is too fine-grained for Burke, I think, as he understood the fundamental minuet of the multitude of small traditions that formed the foundation of society as the very subjects that he would protect from radical change but yet subject to progress and additively this might protect or ultimately allow change at the macro level. At the risk of alienating those who hate long posts [that's alright, they stopped reading 3 paragraphs ago], here is, in my opinion (IMO for those who forgot what that means), the central philosophical passage from the Reflections saying as much:


You will observe, that from Magna Charta to the Declaration of Right, it has been the uniform policy of our constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts. We have an inheritable crown; an inheritable peerage; and a House of Commons and a people inheriting privileges, franchises, and liberties, from a long line of ancestors.
This policy appears to me to be the result of profound reflection; or rather the happy effect of following nature, which is wisdom without reflection, and above it. A spirit of innovation is generally the result of a selfish temper, and confined views. People will not look forward to posterity, who never look backward to their ancestors. Besides, the people of England well know, that the idea of inheritance furnishes a sure principle of conservation, and a sure principle of transmission; without at all excluding a principle of improvement. It leaves acquisition free; but it secures what it acquires. Whatever advantages are obtained by a state proceeding on these maxims, are locked fast as in a sort of family settlement; grasped as in a kind of mortmain for ever. By a constitutional policy, working after the pattern of nature, we receive, we hold, we transmit our government and our privileges, in the same manner in which we enjoy and transmit our property and our lives. The institutions of policy, the goods of fortune, the gifts of providence, are handed down to us, and from us, in the same course and order. Our political system is placed in a just correspondence and symmetry with the order of the world, and with the mode of existence decreed to a permanent body composed of transitory parts; wherein, by the disposition of a stupendous wisdom, moulding together the great mysterious incorporation of the human race, the whole, at one time, is never old, or middle-aged, or young, but, in a condition of unchangeable constancy, moves on through the varied tenor of perpetual decay, fall, renovation, and progression. Thus, by preserving the method of nature in the conduct of the state, in what we improve, we are never wholly new; in what we retain, we are never wholly obsolete. By adhering in this manner and on those principles to our forefathers, we are guided not by the superstition of antiquarians, but by the spirit of philosophic analogy. In this choice of inheritance we have given to our frame of polity the image of a relation in blood; binding up the constitution of our country with our dearest domestic ties; adopting our fundamental laws into the bosom of our family affections; keeping inseparable, and cherishing with the warmth of all their combined and mutually reflected charities, our state, our hearths, our sepulchres, and our altars.



I don't believe he was speaking only of the large things enumerated, i.e. the monarchy and other aspects of constitutional government in england, as the very notion is that change would be small and incremental and thus might ultimately reflect the purported elnlightened elements championed by revolutionaries in France without the glaringly absurd and grotesquely inhumane inconsistencies.

Indeed, I do not think the US constitution, written quite contemporaneously with the foregoing citation, adopted english law without the monarchy. Some of the change inherent in the experience of America was reflected while much of the antecedent Britsh experience was incorporated.

Given that Burke gave rhetorical support to the American Revolution (and the Glorious Revolution for that matter), the idea that even in the less fine grained realm, that he per se opposed resort to arms to enforce emergent tradition (oxymoron of the post) against the status-quo government is not even a useful macro concept.

This points towards ad hoc empowerment of citizens which inevitably creates not a uniformity of tradition -- other than through time. And it puts to bed the clever if disingenuous attempt to jump to the right of the right by Carl Bogus and similar progressives in their last ditch stand in Heller and public discourse surrounding it in claiming that those with a conservative mindset traced to Burke and Madison cannot endorse the insurrectionist premise of the 2nd amendment.

I digress as usual.

Brian
7.19.2008 10:27am
a knight (mail) (www):
For those without easy access to a high-quality law university library, James Madison's comments in Congress on June 8, 1789, referenced previously in this thread by Clayton E. Cramer, can be freely accessed and read via Google books.

United States, and Joseph Gales. 1834. The debates and proceedings in the Congress of the United States: with an appendix, containing important state papers and public documents, and all the laws of a public nature; with a copious index. Washington: Gales and Seaton.
Volume II: (With Vol I) March 3, 1789, To March 3, 1791


beginning on page 448
7.20.2008 4:10pm
a knight (mail) (www):
Professor Kerr, I am not a law scholar, but am one who has in the past generally believed that originalism is a proper form of Constitutional Interpretation. Recently however, I happened to read an article from a past issue of The Georgetown Law Journal which has caused me a bit of bewilderment regarding what exactly is germane for consideration under originalism:
Kesavan, Vasan and Stokes Paulsen, Michael, "The Interpretive Force of the Constitution's Secret Drafting History"; Georgetown Law Journal, Vol. 91, 2003
Available for download at SSRN

A future post of your opinion regarding what constitutes originalism would be greatly appreciated by me. Apologies from this paleo-geek, if this is considered to be 1st year law school curriculum.
7.20.2008 4:20pm