America's Unwritten Constitution: The Precedents and Principles We Live By (92 page)

13
  In
Wesberry v. Sanders
, 376 U.S. 1 (1964), the Court, per Justice Black, held that the congressional districts within any given state had to be equipopulous, thanks to the command of Article I, section 2, that House members be elected “by the People.” Without more, this argument was implausible, because the Founders took care not to specify any fixed apportionment rule within each state. A fixed rule would have awkwardly required the document to decide how slaves should be counted within a state for congressional districting purposes. Amar,
ACAB
, 88–89, 537 n. 94.
Wesberry
’s reading of Article I became possible only after and because of the Reconstruction, which: (1) rendered the slave-apportionment issue moot, (2) obliged southern states to enfranchise blacks on a massive scale, and (3) eventually obliged all states to adopt race-neutral voting laws. Beyond Article I, it is possible to interpret malapportionment as an “abridge[ment] of the right to vote” within the meaning of the Fourteenth Amendment’s section 2, and/or as a violation of general principles of republicanism, construed very broadly post-Reconstruction. Thus,
Wesberry
is best justified as a
Bolling v. Sharp
–like reverse-incorporation
case, in which the Court read rights regarding the federal government in light of Reconstruction rights against states. In turn,
Reynolds
resembled a standard incorporation case, in which the Court simply made
Wesberry’s
rules for federal legislative elections equally applicable to state legislative elections.
Reynolds
itself framed the issue in just this way. See
Reynolds v. Sims
, 377 U.S. 533, 560–561 (1964).

14
  See Chapter 10.

15
  At one end of the plausible range, a state surely has a legitimate interest in ensuring that registered voters are bona fide residents. A constitutionalized sub-rule requiring that every state offer instantaneous registration to anyone claiming to be a new resident on Election Day might result in considerable fraud and tactical vote-shopping by persons who never were and never would become actual residents. At the other end of the plausible range, any state voting rule requiring more than, say, six months of previous state residence would undermine Americans’ basic right to change their state citizenship by moving—a right explicitly guaranteed by the opening sentence of the Fourteenth Amendment. Within this range of plausible interpretation, the modern Court has held that states can require up to fifty days of previous residence—a reasonable sub-rule that cannot be uniquely derived from the written Constitution but that sensibly operational-izes its relevant principles. See
Dunn v. Blumstein
, 405 U.S. 330 (1972);
Marston v. Lewis
, 410 U.S. 679 (1973). Here are some of the “marginal” questions raised by the general equalitarian formula of
Reynolds:
How much population deviation from strict equality should be permitted? Less than 1 percent? More than 10 percent? In exactly what respect must districts be equally populous? In actual population? Legal population? Citizen population? Eligible voting population? Registered voting population?

16
  For recent data supportive of this assessment—at least for House elections—see David Mayhew,
Partisan Balance
(2011), 22–26.

17
  See Antonin Scalia, “Originalism: The Lesser Evil,”
U. of Cincinnati LR
57 (1989): 849, 854, 861.

18
  
Rodriguez de Quijas v. Shearson/Am. Express, Inc
., 490 U.S. 477, 484 (1989);
Eberhart v. United States
, 546 U.S. 12, 19–20 (2005) (per curiam).

19
  
Planned Parenthood of Southeastern Pennsylvania v. Casey
, 505 U.S. 833, 864 (1992) (citing
Mitchell v. W. T. Grant Co
., 416 U.S. 600, 636 [1974] [Stewart, J., dissenting];
Mapp v. Ohio
, 367 U.S. 643, 677 [1961] [Harlan, J., dissenting]). The Stewart dissent focused only on overrulings linked to changing Court membership; the Harlan dissent merely urged full briefing and argument before overruling, stressing the unwisdom of overruling based on a contrary “disposition” as opposed to a settled and deliberately reached sense of prior error.

20
  See, e.g.,
Fox Film Corp. v. Doyal
, 286 U.S. 123 (1932) (overruling
Long v. Rockwood
, 277 U.S. 142 [1928]) (federal immunity from state taxation);
Erie R.R. Co. v. Tompkins
, 304 U.S. 64 (1938) (overruling
Swift v. Tyson
, 41 U.S. [16 Pet.] 1 [1842]) (federal common law);
O’Malley v. Woodrough
, 307 U.S. 277 (1939) (overruling
Evans v. Gore
, 253 U.S. 245 [1920];
Miles v. Graham
, 268 U.S. 501 [1925]) (taxation of Article III salary);
West Virginia State
Board of Education v. Barnette
319) U.S. 624 (1943) (overruling
Minersville School District v. Gobitis
, 310 U.S. 586 [1940]) (free expression);
Jones v. Alfred H. Mayer Co
., 392 U.S. 409 (1968) (overruling
Hodges v. United States
, 203 U.S. 1 [1906]) (congressional power under the Thirteenth Amendment);
Michelin Tire Corp. v. Wages
, 423 U.S. 276 (1976) (overruling
Low v. Austin
, 80 U.S. [13 Wall.] 29 [1871]) (state taxation of imports);
Daniels v
. Williams, 474 U.S. 327 (1986) (overruling
Parratt v. Taylor
, 451 U.S. 527 [1981]) (due process).

21
  Since 1992, the
Casey
dictum has appeared only once in
U.S. Reports
—in a dissent complaining that the Court in that case was overruling precedent in violation of the
Casey
dictum. See
Citizens United v. F.E.C
., 130 S. Ct. 836, 938 (Stevens, J., dissenting) (2010). The Court’s majority opinion, which took no notice of the
Casey
dictum, was authored by Justice Kennedy, who himself was one of the joint authors of
Casey
. For other notable
post-Casey
decisions that discuss the importance
of stare decisis
but do not repeat this specific passage from
Casey
, see
Adarand Constructors v. Pena
, 515 U.S. 200, 231–235 (1995);
Agostini v. Felton
, 521 U.S. 203, 235–236 (1997);
Dickerson v. United States
, 120 S. Ct. 2326, 2336 (2000);
Lawrence v. Texas
, 539 U.S. 558, 577 (2003). See also ibid., 587–591 (Scalia, J., dissenting) (“Today’s opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention—the paean to
stare decisis
coauthored by three Members of today’s majority in
Planned Parenthood v. Casey
.…[T]the Court has chosen today to revise the standards of
stare decisis
set forth in
Casey
. It has thereby exposed
Casey’s
extraordinary deference to precedent for the result-oriented expedient that it is.”). Note that elsewhere in
Casey
, the Court said various things about precedent that were better rooted in prior case law and constitutional structure and that have been echoed in later cases. The sole focus of analysis here is one particularly loosely worded dictum—namely, that “a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.”

22
  This phrase first appeared in an opinion of the Court in
Baker v. Carr
, 369 U.S. 186, 211 (1962). Cf.
Cooper v. Aaron
, 358 U.S. 1, 18 (1957) (proclaiming, in a context involving state defiance of the Court’s mandate rather than congressional or presidential disagreement with the Court’s judgment, that “the federal judiciary is supreme in the exposition of the law of the Constitution”);
Youngstown Sheet & Tube Co. v. Sawyer
, 343 U.S. 579, 595 (1952) (Frankfurter, J., concurring) (describing “judicial process as the ultimate authority in interpreting the Constitution”). For more recent statements, see, e.g.,
Nixon v. United States
, 506 U.S. 224, 238 (1993);
Miller v. Johnson
, 515 U.S. 900, 922 (1995);
United States v. Morrison
, 529 U.S. 598, 616–617 n. 7 (2000).

23
  The idea of “equity” is especially apt in pondering how best to remedy constitutional violations. The written Constitution says relatively little about remedies, and in both England and America, the historical concept of equity has featured prominently in a wide range of remedial contexts. Here, we deal with the interesting question of how best to “remedy” a judicial decision that was, by hypothesis, a mistake, a “violation” of sorts of the best reading of the Constitution.

24
  An exception to this general approach might be warranted if expanding a nontextual right would somehow contract a textual right.

25
  In fact, federal paper money has always been perfectly constitutional. See Amar,
ACAB
, 123. The example thus serves as a reminder that any approach that welcomes judicial overrulings when the current Court is persuaded that a past Court has erred risks false-positives—that is, situations in which today’s Court erroneously ends up overruling past decisions that in fact correctly interpreted the Constitution.

         
Although reliance interests obviously loom large in certain transactional areas involving property and contract, legitimate reliance interests in certain other contexts may well be less significant or even nonexistent. Consider the exclusionary rule. What legitimate reliance interests should impede a Court that is convinced that past cases excluding reliable evidence were plainly erroneous and should thus be overturned? The interest of an especially calculating criminal in getting out of jail free if the cops ever err in procuring compelling evidence against him? Merely to state this interest is to see its absurdity: This is not the stuff of proper reliance worthy of equitable protection. Even if this interest were to be protected, it would offer no shield to any crime committed after the Court made clear that the exclusionary rule must go.

1
    On the importance of constitutional narratives, see Jack M. Balkin,
Constitutional Redemption: Political Faith in an Unjust World
(2011), 25–32.

2
    The American flag has proved to be a particularly protean and slippery symbol—a kind of Rorschach blot that has seduced some otherwise disciplined constitutionalists to drift into embarrassing solipsism rather than deep engagement with the concrete message of a specific text. For details, see Akhil Reed Amar, “The Case of the Missing Amendments,”
Harvard LR
106 (1992): 124, 132–146 (critiquing the unlawyerly—nearly lawless—dissenting opinions of Chief Justice Rehnquist and Justice Stevens in the flag-burning case,
Texas v. Johnson
, 491 U.S. 397 [1989]).

3
    For a kindred effort to draw attention to and muse on various exemplary texts that constitute the constitutional canon, see Philip Bobbitt, “The Constitutional Canon,” in J. M. Balkin and Sanford Levinson, eds.,
Legal Canons
(2000), 331–373.

4
    On Jefferson, see Pauline Maier,
American Scripture: Making the Declaration of Independence
(1998), 160–175; Philip F. Detweiler, “The Changing Reputation of the Declaration of Independence: The First Fifty Years,”
William & Mary Quarterly
19 (1962, 3d ser.): 557. On Wilson, see Pauline Maier,
Ratification
(2010), 78–81. On the mid-twentieth-century political competition for black votes, see Amar,
ACAB
, 441. See also infra Chapter 10, text accompanying nn. 10–11.

5
    On Washington’s and other presidents’ inaugurations, see Chapter 2, n. 37 and accompanying text. For an artistic depiction of Washington’s use of the Bible at his 1789 swearing-in, see the opening picture of Chapter 8.

6
    See Amar,
Bill of Rights
, 247–250.

7
    For citation data, see Dan T. Coenen,
The Story of the Federalist: How Hamilton and Madison Reconceived America
(2007), 208–215, and sources cited therein.

8
    Beyond its generic meaning of “the public man,” “Publius” also referred to a particular Roman hero, Publius Valerius Publicola, who had helped to found the Roman Republic.

9
    Story,
Commentaries
, I:v–vi.

10
  True, Publius was typically not cited by name or by
Federalist
number in the ratification debates, and thus does not appear in crude computer word-searches. But a close look at the words and themes of several ratifying convention speeches—especially in Virginia and New York—suggests that several leading delegates literally had
The Federalist
in hand or at hand. See, e.g.,
Amar, ACAB
, 69, 81, 536 n. 76.

11
  The fact that the Northwest Ordinance is not prominent in today’s pop culture does not disqualify it from inclusion in the constitutional canon. After all, many specific clauses of the written Constitution no longer capture the popular imagination, despite the fact that several of these clauses were at earlier moments in American history at the very center of popular discourse (as was the Ordinance itself). Recall that America’s symbolic Constitution encompasses texts that
“at some point in American history
won the hearts and minds of a wide swath of the American people, thereby helping to bind citizens together as a legal and political entity,” supra text accompanying n. 2. For modern citations to the Ordinance, see, e.g.,
Engel v. Vitale
, 370 U.S. 421, 442–443 & n. 9 (1962) (Douglas, J., concurring) (establishment clause);
Reynolds v. Sims
, 377 U.S. 533, 573 & n. 54 (1964) (one-person, one-vote);
Williams v. Florida
, 399 U.S. 78, 97–98 n. 44 (1970) (criminal jury trial);
Furman v. Georgia
, 408 U.S. 238, 244 & n. 6 (1972) (Douglas, J., concurring) (death penalty);
Milliken v. Bradley
, 418 U.S. 717, 794 (1974) (Marshall, J., dissenting, joined by Douglas, Brennan, and White, JJ.) (educational equality);
Parklane Hosiery Co., Inc., v. Shore
, 439 U.S. 322, 341 n. 5 (1979) (Rehnquist, J., dissenting) (collateral estoppel in civil jury suits);
Immigration and Naturalization Service v. Chadha
, 462 U.S. 919, 982–984 n. 18 (1983) (White, J., dissenting) (legislative vetoes);
Wallace v. Jaffree
, 472 U.S. 38, 100 (1985) (Rehnquist, J., dissenting) (establishment clause);
Rosenberger v. Rector and Visitors of the University of Virginia
, 515 U.S. 819, 862–863 (1995) (Thomas, J., concurring) (establishment clause);
City of Boerne v. Flores
, 521 U.S. 507, 538–539 (1997) (Scalia, J., concurring in part, joined by Stevens, J.) (free exercise of religion);
Kelo v. City of New London
, 545 U.S. 469, 509–510 (2005) (Thomas, J., dissenting) (takings clause);
Boumediene v. Bush
, 553 U.S. 723, 756 (2008) (habeas corpus). The citation number mentioned in the text—125—does not include the many dozens of Court cases in which justices have built upon precepts of the Ordinance, such as the equal-footing doctrine, but have not explicitly cited the Ordinance as the deep source of these precepts.