America's Unwritten Constitution: The Precedents and Principles We Live By (101 page)

2
    1 Stat. 23.

3
    On the need for Congress to affirmatively authorize federal criminal punishment, see
United States v. Hudson & Goodwin
, 11 U.S. (7 Cranch) 32 (1812); Amar,
ACAB
, 63–64, 190, 304, 592–593 nn. 37–38; Amar,
Bill of Rights
, 102, 344 n. 85. On exceptions to
Hudson’s
general rule in contempts of Congress and contempts of court, see Chapter 9, nn. 2–10 and accompanying text.

4
    
Bushell’s Case
, 124 Eng. Rep. 1006 (C.P. 1670). Though Blackstone mentioned the theoretical possibility of a suit of “attaint” brought by the Crown to punish jurors and set aside their verdict,
Blackstone’s Comm
., 4:354, writs of attaint had generally fallen into disuse in England and have played no important role under America’s Constitution. Leading scholars have suggested that writs of attaint never applied to jurors in criminal cases. See, e.g., James C. Oldham, “The Origins of the Special Jury,”
U. of Chicago LR
50 (1983): 137, 162 n. 122; James B. Thayer, “The Jury and Its Development,”
Harvard LR
5 (1892): 244, 377.

5
    
Blackstone’s Comm
., 4: 238–239. See also ibid., 19 (“[J]uries, through compassion, will sometimes forget their oaths, and either acquit the guilty or mitigate the nature of the offense”).

6
    See Amar,
Bill of Rights
, 84–85 and sources cited therein.

7
    See
R. v. The Inhabitants of the County of Oxford
, 104 Eng. Rep. 429, 432 (K.B.1811) (reporter’s note [b]);
United States v. Gibert
, 25 F. Cas. 1287, 1297 (C.C.D. Mass. 1834) (No. 15,204) (Story, Circuit J.); Joseph
Chitty, A Practical Treatise on the Criminal Law
(1819), 1:
^*
654; John H. Langbein,
Origins of the Adversary Criminal Trial
(2006), 325 (“So effective was this judicial remedy that it seems to have virtually eliminated the conviction against direction as a sphere of conflict between judge and jury”).

8
    
Blackstone’s Comm
., 4:355 (emphasis in original). Though Blackstone’s passage addressed only King’s Bench proceedings—typically misdemeanor prosecutions—the basic asymmetry between jury convictions (which judges could undo, in effect) and jury acquittals (which judges could not undo) also applied to ordinary felony cases in other courts. Blackstone noted an obscure exception to this general rule of acquittal finality in the case of “appeal[] of felony”—a medieval practice in which a private party and not the
Crown brought criminal suit and as to which the Crown had no pardon power. This practice was already nearly obsolete in Blackstone’s day (ibid., 308) and is not permitted under America’s Constitution, which as a rule does not recognize the propriety of purely private federal prosecutions immune from presidential pardon power.

9
    This basic postulate was ringingly affirmed by the Supreme Court in the 1812 case of
United States v. Hudson & Goodwin
and has never thereafter been called into question by the Court. For more on that case, recall the discussion in Chapter 8, text accompanying nn. 10–11.

10
  On
Hudson’s
deep structure, see supra n. 3; on noncriminal federal common law, see, e.g.,
Bivens v. Six Unknown Named Agents
, 403 U.S. 388 (1971).

11
  See
Amar, ACAB
, 58–64. If the president vetoes a criminal law, this veto may be overridden; but in such a case the president reserves a nondefeasible pardon power.

12
  See William Baude, “The Judgment Power,”
Georgetown LJ
96 (2008): 1808.

13
  Contempt of federal court marks a partial exception to this general rule against private prosecution. See Chapter 9, n. 9.

14
  Again, note the curious exceptions of contempt of court and contempt of Senate, Chapter 9, nn. 2–10 and accompanying text. On the early flirtation with a federal common law of crimes prior to the definitive 1812
Hudson & Goodwin
case, see
Amar, Bill of Rights
, 344 n. 85.

15
  “Trial by Jury,”
Time
, Oct. 3, 1955, 19.

16
  See Chapter 7, n. 9 and accompanying text.

17
  On small-town and/or self-informing juries, see
Blackstone’s Comm
., 3:375 (“[I]f a juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court”); Langbein,
Origins
, 319–320.

18
  
Swain v. Alabama
, 380 U.S. 202 (1965);
Batson v. Kentucky
, 476 U.S. 79 (1986) (putting some teeth in the rule prohibiting race-based peremptories);
Georgia v. McCollum
, 505 U.S. 42 (1992) (extending
Batson’s
limits on race-based peremptories to jury challenges by criminal defense counsel);
J.E.B. v. Alabama ex rel. T. B
., 511 U.S. 127 (1994) (extending
Batson’s
approach to sex-based peremptories).

19
  For arguments that peremptories should be abolished, see
Batson
, 476 U.S. 102–108 (Marshall, J., concurring);
Miller-El v. Dretke
, 545 U.S. 231, 266–273 (2005) (Breyer, J., concurring);
Rice v. Collins
, 546 U.S. 333, 342–344 (2006) (Breyer, J., concurring, joined by Souter, J.).

20
  See
Williams v. Florida
, 399 U.S. 78 (1970) (six is okay, even in a case involving a sentence of life imprisonment…);
Ballew v. Georgia
, 435 U.S. 223 (1978) (…but five is too small).

21
  See
Williams
, 399 U.S. at 98–99 n. 45.

22
  The phrase “social conscience” is used as a reminder that the judge is indeed part of a larger
society
—a person who has been
socialized
by the norms of society in general and especially by the norms of America’s written and unwritten Constitution. For more on conscience, see Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(1982); Philip Bobbitt,
Constitutional Interpretation
(1991).

23
  
Callins v. Collins
, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting from denial of cert.). Justice Stevens was more guarded; he announced his opposition to the death penalty except in cases where settled Court precedent dictated otherwise.
Baze v. Rees
, 553 U.S. 35, 86–87 (2008) (Stevens, J., concurring in the judgment). See also
Thompson v. McNeil
, 129 S. Ct. 1299–1301 (2009) (Stevens, J., respecting the denial of cert.).

1
    These data are also discussed in
Amar, ACAB
, 69–70, 164–165, 219.

2
    Ibid., 164–165.

3
    For details, see ibid., 342, 409–412.

4
    Actually, Mississippi has a variant of the electoral college: Unless a gubernatorial candidate wins both a statewide popular majority and a majority of legislative districts, the race is decided by the state legislature. Miss. Const., secs. 140–141. But this system, designed in 1890, was conceived in sin—craftily crafted to prevent a black from ever winning the governorship. A close look at the federal electoral college shows that its roots, too, lie in political racism, with states being allowed to disfranchise blacks without penalty in presidential elections. See generally
Amar, ACAB
, 156–159, 344–347.

5
    To put the point in the language of Professor Bobbitt, certain amendment proposals are likely to be seen as “un-ethical” in the sense that they run strongly counter to the “ethos” of the American people as expressed in the mass of state constitutions. See Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(1982), 93–177.

6
    See Chapter 2, n. 15 and accompanying text. See John J. Dinan,
The American State Constitutional Tradition
(2009), 30–31, 55–63.

7
    Ibid., 184–221.

8
    Ibid., 94–96.

9
    Some might wonder whether such an amendment is even permissible. Article V, which lays down general rules for constitutional amendment, explicitly provides that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

         
Formally, this proviso does not prohibit our envisioned amendment, but merely requires that every state “Consent” to such an amendment—presumably during the ratification process, in which all fifty states (rather than the usual thirty-eight) would need to say yes. In reality, however, it would be almost impossible to achieve unanimity among the states for our envisioned amendment—or almost any proposed amendment on any topic, for that matter. Under the Articles of Confederation, whose amendment clause required unanimity among the thirteen extant states, unanimity was never achieved. Indeed, the Articles failed precisely because the amendment bar was set too high, inducing reformers to abandon the Confederation altogether in favor of the Philadelphia Constitution, whose ratification required only nine states to say yes.

         
But wait. Read at face value, the Article V unanimity proviso turns out to be an easily outflanked Maginot Line. The proviso’s words do not apply to an amendment
that preserves the Senate’s existing apportionment while transferring virtually all current Senate powers to a newly created, more proportionately representative entity. In response, it might be thought that unwritten constitutional principles—the spirit of the proviso—should bar any such outflanking. But several substantial “spiritual” principles argue otherwise. First, although small states are lawfully entitled to what they were able to bargain for or extort in 1787–1788, it is doubtful that they are entitled to any more. In this view, a deal is a deal, and the Article V proviso deal means exactly what it says and not one ounce more. Second, the Article V proviso is a remnant of the failed Articles of Confederation system, and that very failure provides a strong cautionary note against reading the proviso broadly. Third, a proper account of the Constitution’s spirit must factor in the enhanced nationalism of post-Founding deeds and texts—especially the Reconstruction Amendments and the egalitarian ideology underlying
Reynolds v. Sims
and its progeny. Fourth, the Constitution has in fact already been amended at least once, using ordinary (thirty-eight-state) amendment rules, in a way that drained some power from the Senate in favor of a more proportionately representative entity. (For details, see Amar,
ACAB
, at 589 & n. 13.) Fifth, once we move past the clear (but easily outflanked) words of the proviso, there is no comparably clear line separating special amendments that require fifty-state approval from ordinary amendments that require thirty-eight-state approval. Finally, small states are well protected by the ordinary rules of Article V, in which Wyoming counts equally with California in both the existing Senate and the ratification process. In a world where two-thirds of the Senate, as currently composed, and three-fourths of the states actually adopted our envisioned amendment in the ordinary way, wouldn’t this fact itself be decisive evidence of America’s spirit?

         
Regardless of one’s ultimate position on the theoretical questions raised by the Article V proviso, one point should be clear to all: Proper constitutional interpretation here pivots not only on the Constitution’s explicit words, but on a sensitive interpretation of America’s unwritten Constitution, based on implicit principles, past amendment practices and protocols, bedrock ideas from the Warren Court era, and so on.

10
  Dinan,
The American State Constitutional Tradition
, 98, 122–123. Note also that in roughly one-quarter of the states, the legislature needs less than a two-thirds vote to override a gubernatorial veto. Ibid., 113. And note further the distinctive gubernatorial election rules in Mississippi. See n. 4.

11
  Although the federal independent-counsel statute ill fit the architecture of the federal Constitution, it initially seemed not “foreign” but natural, because it resembled schemes that had worked in various state constitutions that seemed at first almost identical to the federal model. In fact, however, these constitutions are different in key respects, and so piecemeal borrowing here was a big mistake. See Akhil Reed Amar, “Scandalized,”
The New Republic
, Oct. 11, 1999.

12
  See Basile S. Uddo, “‘Who’s in Charge?’: The Louisiana Governor’s Power to Act in Absentia,”
Loyola LR
29 (1983): 1.

13
  For more details on the sources of the federal ban on advisory opinions, see Chapter 8, n. 22.

14
  Dinan,
The American State Constitutional Tradition
, 98.

15
  For one possible argument against incorporation of the grand-jury right, see Chapter 4, n. 32 and accompanying text.

16
  Cf. Jed Rubenfeld,
Freedom and Time
(2001).

17
  See John Rawls,
A Theory of Justice
(1971). See also Lawrence G. Sager,
Justice in Plain-clothes
(2004), 8–9, 161–193.

18
  
Farrand’s Records
, 1:49 (punctuation altered).

19
  Ibid., 529, 531 (Gouverneur Morris, claiming that “he came here as a Representative of America; he flattered himself he came here in some degree as a Representative of the whole human race,” and urging fellow delegates to rise above parochialism because they or their posterity would one day likely live elsewhere); 405, 413 (Wilson, noting likely impact of Convention on the entire planet and distant, “multiplied posterity”). See also ibid., 2:125 (Wilson: “We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the moment”). For similar musings of James Madison and Alexander Hamilton, see ibid., 1:421–224.