America's Unwritten Constitution: The Precedents and Principles We Live By (89 page)

53
  Margaret Jane Radin, “Property and Personhood,”
Stanford LR
34 (1982): 957, 1013.

54
  See, generally, John Fee, “Eminent Domain and the Sanctity of Home,”
Notre Dame LR
81 (2006): 783. See also Daniel A. Farber,
Retained by the People
(2007), 166–170. In floating the idea of special eminent-domain rules to protect houses above and beyond other real property, Farber astutely highlighted several key facts about Susette Kelo: “The house had been in her family for more than one hundred years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son, who also joined in the lawsuit, lived next door with his family in the house he was given as a wedding gift.” Ibid., 168–169.

55
  Note that whether hypothetical punishment X is “cruel” as well as unusual is a separate question. Perhaps punishment X, although unusual, is less cruel than counterpart punishments in other places.

57
  Amar,
Bill of Rights
, 82, 87, 279.

57
  
Atkins v. Virginia
, 536 U.S. 304, 346 (2002) (Scalia, J., dissenting).

58
  For cases counting congressional and/or D.C. laws, see,
e.g., Atkins v. Virginia
, 536 U.S. 304, 313–314 & n. 10 (majority opinion);
Kennedy v. Louisiana
, 554 U.S. 407, 421–425 (2008);
Kennedy
, 554 U.S. at 455–457 & n. 4 (Alito, J., dissenting, joined inter alia by Scalia, J.);
Kennedy v. Louisiana
, 129 S. Ct. 1, 3 (2008) (denying rehearing);
Graham v. Florida
, 130 S. Ct 2011, 2024 (2010). In ordinary language, the word “unusual” focuses not merely on laws on the books but also on the law as actually applied. Laws exist allowing jaywalkers to be jailed; but being jailed for jaywalking in America is surely “unusual.” (Whether it is also “cruel” is another question.) Examining law as actually applied properly brings constitutional institutions other than the legislature into the frame of Eighth Amendment analysis. Criminal laws are often written in overbroad ways precisely because it is understood—and in some respects constitutionally required (see Chapter 11)—that such laws will be softened in practice by merciful discretion exercised by prosecutors, grand juries, criminal trial juries, trial judges, governors, and parole boards. Each of these institutions represents the public, too, and helps define what modern America really does believe and practice when it comes to punishment.

59
  On Congress’s broad power to find new rights, see Amar,
Bill of Rights
, 175 n
^*
; Amar, “Intratextualism,” 821–825.

60
  For a wide-ranging discussion, see Michael Abramowicz, “Constitutional Circularity,”
U.C.L.A. LR
49 (2002): 1.

61
  See
Furman v. Georgia
, 408 U.S. 238 (1972);
Gregg v. Georgia
, 428 U.S. 153 (1976);
Penry v. Lynaugh
, 492 U.S. 302 (1989);
Stanford v. Kentucky
, 492 U.S. 361 (1989);
Atkins v. Virginia
, 536 U.S. 304 (2002) (in effect overruling
Penry
);
Roper v. Simmons
, 543 U.S. 551 (2005) (overruling
Stanford
);
Kennedy v. Louisiana
, 128 S. Ct. 2641 (2008).

1
     For more on these distinct styles of constitutional argument, see Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(1982).

2
    
Brown v. Board of Education
, 347 U.S. 483 (1954);
Bolling v. Sharp
, 347 U.S. 497 (1954);
Mayor of Baltimore v. Dawson
, 350 U.S. 877 (1955) (per curiam) (beaches);
Holmes v. City of Atlanta
, 350 U.S. 879 (1955) (per curiam) (golf courses);
Gayle v. Browder
, 352 U.S. 903 (1956) (per curiam) (buses);
Loving v. Virginia
, 388 U.S. 1 (1967) (matrimony).

3
    See Akhil Reed Amar, “Attainder and Amendment 2:
Romer’s
Rightness,”
Michigan LR
95 (1996): 203.

4
    On “extra” clout for slave-holders, see Amar,
ACAB
, 87–98, 148–159, 344–347.

5
    Both the Fifth and the Fourteenth Amendment promised “due process of law”—the Fifth vis-à-vis the federal government and the Fourteenth vis-à-vis states. As understood by the Reconstruction generation, who in effect reglossed the Fifth Amendment by adopting a later amendment echoing it, “law” in its nature was general, equal, and
impartial; and the “due process” that generated “law” had to respect that nature by ensuring that lawmaking would be general and prospective and that the execution and adjudication of law would be impartial. Thus, implicit in due process, as understood by the Reconstruction generation, was an equality idea of sorts. Indeed, an early draft of the Fourteenth Amendment spoke of “equal protection in the rights of life, liberty, and property.”
CG
, 39-1:1034 (Feb. 26, 1866). The final draft, which featured separate equal-protection and due-process clauses, aimed not to sharply contradistinguish these two related concepts but to elaborate their interrelatedness as two sides of the same coin: Proper “law” had to be equal and pursuant to fair process. To punish or stigmatize a person on the basis of his birth status violated this vision, which the Reconstruction Congress understood as a first-principles limit that derived from the nature of law and thus bound all levels of government.

6
    See Charles L. Black Jr., “The Lawfulness of the Segregation Decisions,”
Yale LJ
69 (1960): 421.

7
    Hans L. Trefousse,
Thaddeus Stevens: Nineteenth-Century Egalitarian
(1997), xi (quoting tombstone), 244 (discussing orphanage).

8
    Although each of the main segregationist arguments persuaded some Republicans in the 1860s, none appears to have won over a majority of Republicans at that time. In embracing or accepting segregation, various Republican Congressmen in the 1860s did not need to agree upon one single plausible legal theory. Various minority theories, even if each was ultimately implausible, nevertheless gave rise to a powerful political bloc that was reinforced by diehard Democrats, who stood united in their opposition to the Fourteenth Amendment and its promise of racial equality in civil rights. But if the
Brown
Court had sought to defend segregation in a judicial opinion, the justices would have needed to articulate a particular legal reason, a principled and doctrinally acceptable reason. It would have been odd for
Brown
to have adopted one or another eccentric theory that was in fact rejected by most Republicans and that also reflected an implausible understanding of the amendment’s text.

9
    Pre-
Brown
, see, e.g.,
Missouri
ex rel.
Gaines v. Canada
, 305 U.S. 337 (1938);
Sipuel v. Board of Regents of the University of Oklahoma
, 332 U.S. 631 (1948);
Sweatt v. Painter
, 339 U.S. 629 (1950);
McLaurin v. Oklahoma State Regents
, 339 U.S. 637 (1950). Many lower-court decisions in this era also identified fact-specific inequality.

10
  See Michael J. Klarman,
From Jim Crow to Civil Rights
(2004); Randall Kennedy, “Martin Luther King’s Constitution: A Legal History of the Montgomery Bus Boycott,”
Yale LJ
98 (1989): 999.

11
  Beyond the issues raised by formally symmetric laws, the distinction between civil rights and social rights that was prominent in Reconstruction-era discourse was reflected in two additional Fourteenth Amendment ideas. First, certain commands of the amendment did not apply of their own self-executing force to various nongovernmental activities. (Hence the so-called “state action” doctrine, whose textual font is the opening “No State shall” language of the amendment’s second sentence.) Second, although Congress
would have power under section 5 to enforce the equal-birth-citizens idea of the amendment’s opening sentence (which does not use the phrase “No State shall”) against various nongovernmental practices and institutions that might threaten a regime of equal citizenship, there would remain real boundaries to this congressional power. Congress, for example, could not under section 5 require private persons to refrain from race discrimination in private dinner parties and dating. Such “social” practices lay outside the domain of equal citizenship, which could extend beyond the strictly governmental sphere (especially if Congress so provided) but which would not encompass highly private spaces governed by individual associational and social freedom.

12
  Perhaps it might be argued that in regulating its own galleries, neither house was thereby
legislating
; and that each house was therefore not bound by ordinary principles applicable to ordinary laws. But if so, segregation in the Capitol galleries loses virtually all precedential significance for other forms of segregation backed by actual legislation. More generally, America’s implicit Constitution surely imposes many obligations on Congress to abide by first principles even when Congress is not, strictly speaking, legislating. If the First Amendment’s free-speech principles apply to presidents and courts who seek to censor—notwithstanding the amendment’s limited textual command that
“Congress
shall make no
law”
—then surely these principles also constrain Congress even when Congress is not legislating but, say, regulating its galleries via the internal rules of each house. And what is true of free-speech principles is likewise true of equal-citizenship principles.

13
  Act of April 9, 1866, 14 Stat. 27. Congress enacted this statute to implement the Thirteenth Amendment’s antislavery and anti-caste principles and also to overrule the
Dred Scott
case, which had claimed that free blacks were not citizens. Democrat critics claimed that the statute went beyond Congress’s powers under the Thirteenth Amendment. Ending slavery, they argued, did not entail citizenship for all and race-neutral civil rights, as provided for in this act. Andrew Johnson vetoed the bill, and Congress overrode him by a two-thirds vote of each house—the first major override in American history. Once it became clear that Reconstruction Republicans could muster a two-thirds vote on a matter of supreme consequence, reformers proceeded to propose the Fourteenth Amendment, in part to provide an unquestionable constitutional foundation for the still-contested Civil Rights Act. The act has always been understood by lawyers and judges as intimately linked to the amendment. Under the framework of Chapter 2, the act can even be seen as part of the amendment’s very enactment process.

14
  On the Fifteenth Amendment, see Amar,
ACAB
, 400–401 & n.
^*
, 612–613 n. 106; Amar,
Bill of Rights
, 273–274 & n.
^*
. Consider also the equality component of the Fifth Amendment’s due-process clause, as glossed by the Fourteenth Amendment’s equal-protection and due-process clauses. See supra n.5. See also Amar,
Bill of Rights
, 281–283; Akhil Reed Amar, “Intratextualism,”
Harvard LR
112 (1999): 747, 766–773.

15
  
CG
, 42-2:242 (Dec. 20, 1871).

16
  William J. Brennan Jr., “The Bill of Rights and the States: The Revival of State
Constitutions as Guardians of Individual Rights,”
New York U. LR
61 (1986): 535, 535–536; Erwin N. Griswold, “Due Process Problems Today in the United States,” in Bernard Schwartz, ed.,
The Fourteenth Amendment
(1970), 161, 164 (citation omitted).

17
  For the Court’s “ordered liberty” test, see
Palko v. Connecticut
, 302 U.S. 319, 322–329 (1937).

18
  
Robinson v. California
, 370 U.S. 660 (1962) (cruel and unusual punishment);
Pointer v. Texas
, 80 U.S. 400 (1965) (confrontation);
Klopfer v. North Carolina
, 386 U.S. 213 (1967) (speedy trial);
Washington v.
Texas, 88 U.S. 14 (1967) (compulsory process);
Benton v. Maryland
, 395 U.S. 784 (1969) (double jeopardy). See also
Schlib v. Kuebel
(bail) (dictum), 404 U.S. 357 (1971), decided shortly after Warren left the Court.

19
  In the 1798–1801 period, see Act of July 14, 1798, 1 Stat. 596;
Lyon’s Case
, 15 F. Cas. 1183 (C.C.D. Vt. 1798) (No. 8,646) (Paterson, J.);
United States v. Callender
, 25 F. Cas. 239 (C.C.D. Va. 1800) (No. 14,709) (Chase, J.);
United States v. Cooper
, 25 F. Cas. 631 (C.C.D. Pa. 1800) (No. 14, 865) (Chase, J.);
United States v. Haswell
, 26 F. Cas. 218 (C.C.D. Vt. 1800) (No. 15,324) (Paterson, J.). In the World War I era, see Espionage Act of 1917, 40 Stat. 217; Sedition Act of 1918, 40 Stat. 553;
Schenck v. United States
, 249 U.S. 47 (1919);
Debs v. United States
, 249 U.S. 211 (1919);
Abrams v. United States
, 250 U.S. 616 (1919). Postincorporation, see
Lamont v. Postmaster General
, 381 U.S. 301 (1965). For an astute reminder of
Lamont’
s firstness and of the fact that “actual Bill-of-Rights invalidation of congressional legislation is a fairly recent phenomenon,” see Laurence H. Tribe,
American Constitutional Law
(1978), 3–4 & n. 8.

20
  The five were Justices Black, Douglas, Brennan, Potter Stewart, and Byron White; the sixth was Justice Harlan. Two of the three justices who voted against the
Times
in 1971—Chief Justice Burger and Justice Blackmun—had not been on the Court in 1964. Nor had Justice Thurgood Marshall, who sided with the
Times
in 1971. The 1964
New York Times
case was cited twice in the 1971
New York Times
case.
New York Times Co. v. United States
, 403 U.S. 713, 720 n. 1, 724 (1971) (Douglas, J., concurring, joined by Black, J.). For more on the first
Times
case, see Harry Kalven Jr., “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’”
Supreme Court Review
1965: 191.