Refutation Its Varieties and Pitfalls

Over the last couple of weeks, we’ve been talking about fallacies in order to help you all figure out ways in which you can criticize an argument. Sometimes, an argument might seem valid or strong. But if you recognize that it’s actually a fallacy, that’ll help you to see what’s wrong with the argument and not to be moved by it. But there are other ways of criticizing arguments besides recognizing them as fallacies or, in any case, recognizing them as the one, one of the kinds of fallacies that we’ve been discussing so far over the past couple of weeks. And this week we’re going to broaden our scope a little bit and talk about other ways of criticizing arguments. This week we’re going to talk about refutation, its varieties and pitfalls. So, what’s refutation? What are the varieties of refutation? What are the pitfalls of refutation? Let’s address those questions in order. So, first, what is refutation?

What is Refutation?

To refute an argument is to show that the argument is unsuccessful.

An argument may be unsuccessful because we are not entitled to accept its premises, do not support its conclusion.

Refutation, or to refute an argument, is to show that the argument is unsuccessful in some way or other. That’s what you’re doing when you refute an argument. You’re showing that the argument is unsuccessful in some way or other. Now, an argument might be unsuccessful because we’re not entitled to accept its premises, right? Maybe its premises are false or maybe whether they’re true or false, we just have no reason to accept them. Or an argument may be unsuccessful because whether or not its premise are true or known by us to be true, the premises don’t support the conclusion of the argument. So, the conclusion isn’t adequately supported by the premises. It doesn’t follow from the premises. It’s not something that the premises give us very powerful reason to believe. So, we can refute an argument by showing that it’s unsuccessful in any of those ways. So, because refuting an argument is just to show that it’s unsuccessful in any of those ways, there are going to be different ways to refute an argument corresponding to the different ways. In which arguments can be unsuccessful.

The Varieties of Refutation

To refute an argument is thus to show that its premises do not support its conclusion or that we are not entitled to accept its premises.

We can do the former using refutation by parallel reasoning.

We can do the latter using counterexamples or reductio ad absurdum.

So, for instance, if we’re going to show that the premises of an argument don’t support its conclusion, then we can do that by means of something that we’ll call refutation by parallel reasoning. One way of doing that, of course, is to point out that the argument is a fallacy. It might appear valid or strong but, in fact, it’s not. But another way of doing that, independently of pointing out that it’s a fallacy, is to refute the argument by parallel reasoning. And in the next lecture, we’ll talk about what refutation by parallel reasoning is. Another way that we might refute an argument is by showing that its premises are false or in any case whether they’re false or not, we’re not entitled to accept them. And we can do that; we can show that we’re not entitled to accept the premises by using things that we’ll call counter examples. Or a method that we’ll call, reductio ad absurdum. Okay. So those are the varieties of refutation. We can refute an argument by means of parallel reasoning. We can refute an argument by means of counterexamples. Or we can refute an argument by reductio ad absurdum. And we’ll talk about those different varieties of refutation this week. Now, often refutations are successful and help us to see why an argument that someone else is giving or maybe an argument that we ourselves gave is unsuccessful. But sometimes, refutations don’t work. In particular, there are a couple of different kinds of error to which refutations are especially liable. One of those kinds of error is what’s called attacking a straw man, or refuting a straw man.

The Pitfalls of Refutation

In attempting to refute an argument, we may end up attacking a straw man, on relying upon a false dichotomy.

Sometimes, when you try to refute a particular argument, you end up attacking something that isn’t quite the same as that argument. Something that might seem very similar to that argument, you might mistake it for being the same as that argument. But it’s not quite the same and the difference is significant. That’s called attacking a straw man. Your refutation of an argument also might be unsuccessful because it depends upon a false dichotomy. You assume that a particular dichotomy is true, either things have to be one way or have to be other way and you make that assumption in attempting to refute an argument. But your refutation is unsuccessful because the assumption that you’ve made, the assumption that things have to be either one way or another way, is a false assumption. That’s called a false dichotomy. Okay, so those are some dangers to which refutation is subject, and we’ll also be talking about those this week. Alright, so now that we’ve said what refutation is, what its varieties are and what its dangers are, let’s start talking about particular kinds of refutation. Next time, we’re going to talk about refutation by parallel reasoning.

Civil Procedure

So for starters, let’s get some definitions on the table. What is civil procedure? Broadly speaking civil procedure has two components, civil and procedure. Civil in this title describes the workings of our judicial system that have to do with the resolution of disputes between people, or sometimes between people and government, that are not criminal in nature. Civil disputes have to do with disputes over ownership of property, injuries that you think you’re entitled to be compensated for, contracts that you want to get enforced, so forth. That is a civil dispute.

Civil Procedure

Civil:

the workings of our judicial system that have to do with the resolution of disputes between people, or sometimes between people and government, that are not criminal in nature

Procedure:

the mechanisms by which we use our court system to resolve disputes

Procedure describes the mechanisms by which we use our court system to resolve disputes. And so the field of civil procedure, broadly speaking, is a field that relates to the use of our court systems to resolve civil disputes between people, to resolve disputes over property, over contracts, over injuries. And the mechanisms by which we resolve those disputes and the ways in which our court system operates in the resolution of those disputes. Now, the field of civil procedure encompasses a very wide array of issues that have to do with the power of courts that have to do with the ways in which people approach the resolution of their disputes, and the power that is bound up with procedure, that is to say the power that is bound up with these mechanism, mechanisms that we use for the resolution of disputes. I’d like to frame my discussion about civil procedure with a quotation from a man by the name of Karl Llewellyn. Llewelyn was a legal scholar, writing in the first part of the 20th century. And in 1929, he wrote a series of essays that were designed for incoming law students and that were in, intended to introduce law students to the fields of study that they were about to be undertaking. And it was a set of essays that were, a set of lectures that were published in a book that was called the Bramble Bush. And when he was talking about the field of procedure, he said the following.

Karl Llewellyn

legal scholar in early 20^th century

Bramble Bush, 1928

“You must learn to read your substantive courses, as it were through the spectacles of the procedure. Because what substantive laws says should be means nothing, except in terms of what procedure says you can make real.”

You must learn to read your substantive courses, as it were through the spectacles of the procedure. Because what substantive law says should be means nothing, except in terms of what procedure says you can make real. Now, Karl Llewellyn was writing at a time when the issue of procedure and procedural reform was really quite urgent. The procedures in our civil court systems in the United States have not always functioned particularly well. And the early part of the 20th century was a time when procedures were extraordinarily varied around the country and even varied within our federal court system, which is our national court system. And there were a lot of very active and elevated conversations around the country about procedural form, reform and what procedural reform might look like. And Llewellyn was specifically writing at a time when procedure was in danger of actively frustrating the ability of litigants to prevail on their claims or to, to bring their claims forward in an effective and meaningful fashion. And in particular he lived and taught in New York at the time, and New York had a really messed up set of procedures in their state courts. And for a series of historical reasons at this point in time, the federal courts looked to what state courts would do in deciding what procedures they would use in many of their cases. So we have, in the United States, two parallel court systems, a federal court system and court systems in each of the 50 states, and these are formally separate systems. And they’re allowed to use different procedures and have many different policies surrounding the resolution of civil disputes. And for a series of historical reasons in the early part of the 20th century and before, the federal courts in many respects didn’t have their own procedures; they looked to what the states did. And at the time that Llewellyn wrote that quote, state procedures were a mess. And as a consequence a lot of federal procedures were a mess as well. And so conversations about procedural reform in the first 30, 35 years of the 20th century were both conversations about what a sensible procedure system might look like. But they were also conversations about whether it would make sense to have a single uniform set of procedures in the federal courts. And largely as a consequence of the negative history, the negative experiences that lawyers and judges had with the existing procedural system, in 1934 Congress passed this very important statute, the Rules Enabling Act of 1934. And the Rules Enabling Act was the very first time that Congress had provided for a single, uniform set of civil procedures to resolve civil disputes in our federal courts.

The Rules Enabling Act of 1934

Congress provides

a single, uniform set of civil procedures to resolve civil disputes in federal courts

And several years following the enactment of this statute, rule makers carried into effect, they brought into being, the very first set of general purpose, and uniform procedural rules for the federal court what are often described as the Federal Rules of Civil Procedure. So, understanding how civil procedure works in the United States is importantly in part, about understanding how both the origins of our federal procedural system and how procedures work in the federal courts, because federal courts are very important, place where civil disputes get litigated. And also the way that our federal courts resolve civil disputes winds up providing a model, winds up providing a lot of guidance how many, many states adjudicate civil disputes as well. So, in understanding civil procedure in the United States it’s important to understand the federal system of civil procedure. And in particular, it’s important to understand three basic principles, which are going to be the focus of much of my discussion here today about the American procedural system. The first basic principle involves a term called trans-substantivity. It’s what you might think of as a philosophical principle that underlies the federal rules of civil procedure, and that has really served to shape to a significant extent, the way that we think about how a procedural system ought to operate within the American justice system. The second basic principle is the relationship between quote, unquote, procedure and quote, unquote, substance. For a lot of people, particularly before you get to law school, if you hear a term like civil procedure, you think, oh that’s going to be the really dry, boring stuff. And that’s not remotely true at all. And this boundary between what we label procedure and what we label substance, it’s a really important issue. And figuring out what it means to distinguish between procedure and substance actually winds up being one of the key issues in the administration of a civil justice system. And I’ll say a few words about that. The third issue that I’m going to discuss has to do with efforts that are increasingly important in the 21st century for litigants and in particular for powerful defendants like corporate defendants, to try to bargain their way out of the civil procedure system. And to use a mechanism called arbitration under the auspices of a very powerful federal statute called the Federal Arbitration Act to find ways to bargain their way around our civil justice system. So the three basic principles that we’ll talk about in, in figuring out how exactly our civil justice system works are, number one, this philosophical issue of trans-substantivity. Number two this sort of practical concern about the distinction between procedure and substance, and what that distinction is meant to capture.

Basic Principles of Civil Procedure

• trans-substantivity
• the relationship between “ procedure” and “substance”
• arbitration

And third, a recent development, a recent development of great practical significance, of efforts of people and particularly defendants to bargain their way around our civil justice system, and what some of the implications are for some of those efforts.

So, let’s start our conversation about this first issue of trans-substantivity. As I mentioned, when the federal rules of civil procedure were brought into existence, procedure had been a mess. Procedure had been a mess in the federal courts and it was a mess in the state courts as well. And one of the goals of the enactment of this statute, the Rules Enabling Act, and the, the bringing into being of these federal rules of civil procedure, one of the goals was to clean up that mess. And to create a set of mechanisms by which people could bring their civil cases into court, that would be relatively uniform and relatively predictable. And the principle of trans-substantivity was one of the tools by which that goal was sought to be carried into effect. And this is a principle that has two concepts bound up in it. You might think of them as vertical trans-substantivity and horizontal trans-substantivity. These are big fancy terms, but they’re really meant to capture some very simple ideas. First of all, this, this idea of vertical trans-substantivity is basically an idea that says that procedures will operate in the same basic way. That is to say, the same procedures will apply whether a lawsuit is a big complicated lawsuit or a small, relatively simple lawsuit. And we have one set of procedures. A very fully realized and, and all the bells and whistles system of procedure, that apply regardless of whether you bring a big, expensive, complicated case into federal court or a relatively simple and relatively low-stakes case into federal court. Now why might this matter? Well, it matters because the, all the bells and whistles version of the federal rules of civil procedure can sometimes be moderately expensive. And one of the facts about the federal procedural system, which has gotten some attention recently, is that the, the completeness of it. The fact that it makes so many tools available for discovery, for learning information from the other side and getting them to turn information over to you for motion practice, for filing formal motions with the court in which you ask the court for various different kinds of relief at various stages of the litigation process. It has a fully realized system of procedure, which when it is utilized in, in, to its fullest extent, can be a relatively expensive way of resolving disputes.

Vertical Trans-substantivity

• held for 80+ years
• federal procedure system ought to work the same way for big cases as it does for small stakes cases

And so the trans-substantivity principle in this vertical orientation has held for the last 80 years or so that our federal procedure system ought to work the same way for big cases as it does for small stakes cases. Now, there are a lot of benefits that comes from that idea of vertical trans-substantivity. But also potentially some costs as well. There’s at least the possibility that smaller cases might get priced out of the federal courts in various ways and so one conversation about trans-substantivity has to do with the affordability of litigation. That is to say, whether people will have access to justice and whether one unintended consequence of creating this fully realized system of procedure that is uniform in all of its applications, is the possibility that certain types of cases might wind up getting priced out of the federal courts. This is a useful issue to start with because it focuses us on the relationship between a procedural system and the viability of enforcing a claim, right? The cost associated with for, enforcing a claim. That’s an issue that we’re going to talk about a fair amount in relation to the second and third issues that we put on the table just a moment ago. So, that’s this concept of vertical trans-substantivity. There’s also an idea of what I’ll call horizontal trans-substantivity. And here, this is a description of the way that procedure operates in different types of cases.

Horizontal Trans-substantivity

•  a description of the way that procedure operates in different types of cases
•  governed by different substantive legal principles

That is to say, different cases that are governed by different substantive legal principles and one of the core concepts one of the core philosophical principles according to which our procedure system has operated for in, its entire lifetime, is that procedures should not vary depending upon the type of claim that you’re seeking to prosecute. Procedures should not vary depending upon the substance of the claim that you’ve brought forward. So, if you’re bringing an anti-trust claim, if you’re bringing a securities law claim, if you’re bringing a civil rights claim, if you’re bringing a personal injury claim, very, very different substantive law claims, claiming very different kinds of injuries. They all use the federal rules of civil procedure if they’re brought in the federal courts, and it’s the same set of federal rules for all of these different types of claims. And at least in theory, the federal rules will operate in the same fashion according, without regard to what type of substantive claim it is that a litigant has brought forward. Now, that may sound like a fairly sensible and straightforward proposition, and indeed, in a lot of ways, this idea of horizontal trans-substantivity has in fact been a very important unifying feature of the civil procedure system in the federal courts. But there are times when it can also cause problems or at least cause some confusion. And there’s a recent case that I want to talk about, that helps to illustrate some of the problems and confusion that this idea of trans-substantivity can introduce. It’s a case called Bell Atlantic versus Twombly. Bell Atlantic versus Twombly was an anti-trust case.

Bell Atlantic Corp. v. Twombly (2007)

• anti-trust case
• deals with pleadings standards

And it was a case specifically that deals with pleadings standards. Now pleadings standards, pleadings is a description of the very, very first stage of a lawsuit where you initiate the lawsuit by filing a complaint with the court. And when you’re a plaintiff, when you’re somebody who thinks you’ve been injured and you want to start a lawsuit, you draft this document called a complaint. And because you’re right at the outset of a lawsuit, you don’t have any evidence, necessarily. You don’t necessarily have any testimony or any documents from the other side. All you can put in a complaint is allegations, right? I allege that the following things happened. A complaint is basically a promise for what it is that you think you’ll be able to prove. What it is that you’re offering to prove if you’re given an opportunity to have a lawsuit and develop evidence? It contains allegations that are supposed to show why you would be entitled to relief from the court, if you’re able to prove the things that you say happened to you. So, the question of what you have to put into a complaint in order to get into court, right? What is the threshold requirement for initiating the very powerful processes of a lawsuit is a matter of great concern and we refer to that question as the standard of pleading that you have to satisfy. So, Bell Atlantic vs Twombly was a case that involved pleading standards. It involved a dispute over whether a complaint that had been filed by an anti-trust plaintiff was an adequate complaint, whether it met the standard for getting this anti-trust plaintiff into federal court.

Bell Atlantic Corp. v. Twombly (2007)

• the complaint was inadequate
• failed to satisfy the pleading standard required

So, in the Bell Atlantic versus Twombly case, the Supreme Court wound up deciding that the complaint that the plaintiff had filed in that case was inadequate, that it failed to satisfy the pleading standard required to allow the plaintiff to initiate the litigation process to have a day in court. And specifically, what the court wound up deciding was that a very specific issue of anti-trust law. That is, how, what it is that you have to demonstrate to establish a conspiracy in anti-trust. What it is that you have to show, in order to establish that there has been a conspiracy to violate the anti-trust statute.

The Supreme Court held the pleading in the Twombly case was inadequate because the plaintiff didn’t allege enough facts to make it plausible that there was a conspiracy to violate antitrust statute. This case announced that the standard of pleading is plausibility

That aspect of the complaint was insufficient and the plaintiff had not alleged enough facts to make it, in the court’s words, plausible that there was a conspiracy to violate the anti-trust laws. Now, this was an issue in the field of anti-trust that had a particular a particular substantive context. Anti-trust policy is very concerned about fostering competition, and nonetheless, policing abuses of market power. And so the doctrines around conspiracy in the anti-trust laws seek to draw or to strike a very careful balance between the desire to foster competition, but to prevent certain kinds of abuses of market power.

Bell Atlantic Corp. v. Twombly (2007)

balancing the fostering of vigorous competition with preventing abuses of market power

And what the court had to say in the Bell Atlantic versus Twombly case, about why the complaint in that case was inadequate, were geared, to a very significant extent, to these particular substantive policy judgements that our anti-trust laws make about balancing the fostering of vigorous competition with preventing abuses of market power. So, that was Bell Atlantic versus Twombly. And after Bell Atlantic was decided, there was a question.

After Bell Atlantic Corp. v. Twombly (2007)

•  Is this a case that establishes a heightened pleading standard across the board for all kinds of lawsuits, no matter what the substantive context?
• or is it a case that was really about pleading and anti-trust cases?
• Is it really a case that was specific to concern about the substantive policy underlying the anti-trust statute and how conspiracy operates?

And the question was, is this a case that establishes a pleading standard, a heightened pleading standard, across the board for all kinds of lawsuits, no matter what the substantive context? Or, is it a case that was really about pleading and anti-trust cases? Is, is it really a case that was specific to this concern about the substantive policy underlying the anti-trust statute and how conspiracy operates the anti-trust statute? In a series of cases, two cases following the Supreme Court’s Bell Atlantic versus Twombly decision, the Supreme Court answered that question by invoking this principle of trans-substantivity, and saying that in fact, what Bell Atlantic represented was a racketing up of the pleading standard across the board. This is a procedural issue. And what we say about procedure in one context applies in all the other contexts as well. And so, in a pair of cases involving civil rights claims improper imprisonment claims, discrimination claims, that kind of claim. The court took these stronger and more demanding statements that it had made about pleading in the very specific context of a conspiracy to violate the anti-trust statute. It applied the same procedural doctrine to these civil rights cases, and wound up shutting several litigants, or potentially shutting several litigants, out of court because of what it viewed, what the court viewed, as the implausible nature of their allegations at the very outset of the lawsuit. And this is a very consequential procedural holding because the pleading standards not only determine whether you’re going to be able to get into court in the first place, but if your complaint gets dismissed because you have failed to satisfy the pleading standards and you can’t rehabilitate your complaint in a sufficient fashion, that’s your one shot. You get one shot to file a complaint on a given claim in the civil court system and so racketing up the pleading standard means that, potentially, litigants are going to be shut out of court and shut of court permanently. And this principle of trans-substantivity winds up producing this very consequential result. Now, there are both good and bad aspects to this principle of trans-substantivity. The virtue of this principle is that we want our procedure system to be predictable. We want it to be the case that when the courts talk about procedure doctrines in one type of lawsuit, that we can take what they say, we can take the, the holdings and the principles that they articulate in those cases, and predictably apply them to other types of cases as well, right? There is value to that kind of uniformity and predictability.

Principle of Trans-substantivity

Value

uniformity and predictability

Danger

line between procedure and substance is not always sharp

The danger is that the line between procedure and substance is not always quite so sharp. And if we have a procedural holding in one particular type of case that really seems powerfully tied to the substantive law in that case, then is it always clear that this principle of trans-substantivity should mean that it should apply to all kinds of other cases as well?

Principle of Trans-substantivity

If we have a procedural holding in one particular type of case that really seems powerfully tied to the substantive law in that case, then is it always clear that this principle of Transsubstantivity should mean that it should apply to all kinds of other cases as well?

The idea of trans-substantivity, that is, depends upon a fairly robust understanding of the distinction between substance and procedure. And Bell Atlantic versus Twombly is one case that illustrates that, perhaps sometimes, that assumption that there is this sharp distinction between procedure and substance is not always a good assumption. And that applying trans-substantivity in such a, a, a doctrinaire fashion can sometimes produce negative consequences. That illustration of trans-substantivity in this relationship to this substance procedure distinction will provide a great bridge into our next discussion of the second principle, which is, in fact, this distinction between procedure and substance.

The second issue that we will discuss is the distinction between quote, unquote substantive questions and quote, unquote procedural questions. Now the federal statue that brings into existence the Federal Rules of Civil Procedure, the statue called the Rules Enabling Act of 1934, contains in the very text of the statute an apparent requirement that we distinguish between substance and procedure.

Substance vs. Procedure

Rules Enabling Act of 1934

• requirement to distinguish between substance and procedure
• a set of rules that are designed to deal with questions of practice, procedure, and evidence.
• these rules are not allowed to abridge, enlarge, or modify substantive rights

The statute specifies that it authorizes the bringing into existence of these things the federal rules. And it says that there are rules that are designed to deal with questions of practice, procedure, and evidence. And the statute also specifies that these rules are never supposed to abridge, enlarge, or modify substantive rights. So right there in the text of the statute is an apparent requirement that we draw distinction between substance and procedure. And broadly speaking, that’s a distinction that would seem to make a fair amount of sense. Substantive questions are the questions that we might think of as having greater social policy implications, being the types of questions that legislators and other types of account, politically accountable figures, ought to be responsible for carrying into effect. Procedural questions are the types of questions that are generally involved in the administration of a civil justice system. And drawing a distinction between the types of questions that legislature should address and the types of questions that rule makers should address seems quite sensible. And that is, at base, what this substance procedure distinction is meant to capture. But it’s not always quite so easy to draw that distinction. Or at least, to draw it in a way that makes a lot of sense. And after 75 years of practice under the Federal Rules of Civil Procedure, we have learned that, in fact, it’s not always quite so easy to draw a sharp line between matters of procedure and matters of substance. As one example, the pleading standard cases that I mentioned from the previous section. Those are cases in which a procedural issue. Speaks in a very direct fashion to whether people are going to be able to get into court at all. That would seem to have some pretty significant, maybe even quote, unquote substantive implications to it. And so figuring out when it is that we can draw a distinction between substance and procedure that is satisfying is a continuing issue that gets addressed by scholars and by courts in the administration of our civil justice system. So, the example that I want to discuss to illustrate this proposition more fully is the example of class actions. Class actions are one of the most powerful, procedural mechanisms in the modern civil justice system. In the federal system, they are governed by a rule that gets discussed a lot, Federal Rule’s 23 in our civil procedure system. And, the modern version of Federal Rule 23 was brought into being just about 50 years ago in 1966. And, Rule 23 authorizes a representative lawsuit, a class action in which one or several individuals come into court with their lawyers, and they say, we’ve been injured in the following way, a contract has been violated our financial interests have be affected. We’ve been injured in some fashion, but not only have we been injured, a whole lot of other people have been injured as well. A whole lot of other people who are similarly situated to us have been injured in very much the same way. And when litigants come into court and invoke Rule 23 and seek to initiate a class action, what they say is, we don’t want to just litigate our claims. We want to litigate the claims of everybody who’s been hurt in the ways that we’ve been hurt. This is a remarkable proposition if you think about it. A couple of litigants come in with their lawyers, and often it’s the lawyers who really play a much more powerful role in, in guiding the course of these proceedings. And they say, we want to litigate a set of claims on behalf of a whole bunch of people whom we’ve never met, who we have no relationship with. But whom we think we would be adequate representatives for to adjudicate or to litigate their claims that are just like the claims of the particular people who come in, into court to initiate the proceeding. And the circumstances under which a class action is permissible, the circumstances under which a court will allow a lawsuit to proceed as a class action is an issue of major importance in the civil justice system of the United States today. Among other things, as you can well imagine, if a defendant, let’s say for example a corporate defendant, faces the claims of one or a couple or a small handful of injured individuals, then their exposure. The overall amount they might have to pay in response to these law suits is liable to be relatively modest. But if one or a couple or a handful of individuals can come into court and litigate everybody’s claims, litigate the claims of a whole class of people who they say have been injured, suddenly the corporation exposure, the corporation’s potential damages that they have to pay, is enormously magnified and it becomes a very high stakes lawsuit. Class actions serve very important functions, in that they can enable claims that nobody would otherwise be able to afford to litigate, to get adjudicated by the court. So if you’ve got one hundred thousand people. Each one of whom has been injured to the tune of $50, let’s say because of an improper billing practice from their cable company or from their cell phone company, no one person is going to be able to litigate a $50 claim in all likelihood.

Class Action Lawsuits

100,000 people, injuries $50/each

Individual claims:

• 100,000 separate lawsuits
•  unlikely to litigate

Group represented by lawyers:

•  100,000 x 50 = $5,000,000

But, if it’s possible for a couple of people to come into court, represented by lawyers who are going to bring those claims on behalf of everybody, then suddenly 100,000 people with $50 claims becomes a $5,000,000 lawsuit, and that’s a lawsuit that’s worth litigating. So class actions can have the effect of allowing claims to get enforced that wouldn’t otherwise be enforced at all. But the flip side is that class actions have the potential to create a lot of pressure, maybe even improper pressure on defendants to settle lawsuits in order to avoid what might be crippling exposure. And there are all kinds of other reasons why class action lawsuits have to be monitored very carefully, because they can be misused or even abused in various ways. Okay. So, in New York State, there are a series of provisions in their state court systems, and in their state legal framework that address class actions. And in particular, New York brought in to being its own version of the class action, the modern class action. Several years after the federal version were brought into being. But when the lawmakers in New York created their class action system, they took a look at their laws and they said, you know, we have some statutes in New York where we have penalty provisions, we have statutory damages. We, we make certain kinds of remedies available to people on the assumption that they should get paid, not necessarily based upon how much they’ve actually been injured. But, they should get paid a, a fixed amount, which might be a larger amount than the actual injury that they’ve suffered in order to create a mechanism by which people, individual people, can actually bring these lawsuits. Or in order to create disincentives for certain kinds of defendants to engage in bad behaviour. And we think these are great. We think these make a lot of sense in our laws. But if you can have a class action in a case involving statutory or penalty damages, then suddenly you’re going to be magnifying the effects of these penalties totally out of proportion with what they were intended to do when they were first enacted. Or at least there’s a danger that that could happen. And so we in New York are going to create class actions, we think class actions are a great idea. But we’re going to create a separate provision of law that says, if you’re dealing with a statute that confers penalty damages or statutory damages, where there’s this danger that a class action could magnify the liability out of all proportion then no class actions, unless the actual statute that creates the penalty or the statutory damages authorizes class actions. In other words, we’re going to say if we’ve created statutory or penalty damages, these types of damages that are really geared towards individual enforcement and could be misused or, or at least create bad consequences if they’re the subject of a class action, you can’t have a class action for that kind of substantive law dispute. Unless we specifically say in the statute itself that you can have a class action. So that’s how New York geared its class action system in the state courts. Now, in a lawsuit that recently came before the Supreme Court, in a case called Shady Grove versus Allstate Insurance, a question arose. And the question was this. Let’s say that you’re bringing a lawsuit under New York State law. And let’s say that you’re bringing that lawsuit to enforce one of these penalty provisions or one of these statutory damages provisions.

Shady Grove v. Allstate Insurance

• . lawsuit to enforce a penalty provision of statutory damages provision
• . brought to federal court
• . Rule 23, because it was a matter of “procedure,” controls the issue of class actions in federal courts and supersedes contrary law in the State of New York

But instead of bringing it in the New York State courts, let’s say you bring it in federal court. In many ways, the court systems in our country, the federal courts and the state courts, operate in parallel with each other. And there are many types of lawsuits, not all, but many types of lawsuits that could be brought either in the federal courts or in the state courts, and this was potentially one of them. And so the plaintiffs took a look at New York state law, and they said, well, Gee, we can’t have a class action in New York state court; because New York statutes make it very clear that this is the type of penalty case where a class action is not appropriate. But let’s just bring our lawsuit in federal court. And we can invoke Rule 23. And we can have a class action. Rule 23 doesn’t have any of these limitations that New York’s provisions have. And we can have our class action in federal court. And so the question I presented to the Supreme Court of the United States is that possible? Is it possible to bring a lawsuit in federal court based on a New York claim, where you wouldn’t be able to have a class action in the courts of New York, but you can have a class action in federal court, simply by pointing to this provision, Rule 23? And the case went up to the Supreme Court, and in a very fractured five to four in some places, six to three in other places, decision, the court said yes. And the court said, in fact, that Rule 23, because it was just a matter of quote, unquote procedure, controls the issue of class action in the federal courts for all purposes and trumps, or, or supersedes, any contrary law in the state of New York. And in particular, in response to the argument from the defendant in that case which was this insurance company, in response to the argument that there are these serious substantive implications to having a class action according to this New York Statue, where you couldn’t have it in the course of New York, and where it looks like New York law says that a class action shouldn’t happen. What the Supreme Court said was, but nonetheless, we have decided that class actions are a matter of quote, unquote, and procedure. And those procedural questions are governed by the Federal Rules of Civil Procedure. And any consequences that it might impose upon the policies of New York to allow a class action in this kind of case are merely incidental consequences that don’t change the character of this question as a quote, unquote procedural question. Now this is a very controversial opinion. And it’s an opinion that really highlights what could be at stake, when you draw this distinction between quotes procedure and quote substance in such sharp and rigid terms, class actions are the biggest and most important or one of the biggest and most important things going on in our procedural system today. And in the New York case in particular, the result of this decision by the Court was to take what was essentially a $500 lawsuit by an individual and turn it into a $5 million lawsuit on behalf of an entire class. How can that not have some kind of substantive implications? Good question. But if it does have substantive implications, then does that mean that class actions in the federal court are always problematic or always somehow invalid, because, after all, the Federal rules of Civil Procedure are, are only supposed to deal with procedure questions and are not supposed to deal with questions of substance. If class actions have substantive implications in, in every case, then maybe class actions are invalid across the board under the Rules Enabling Act of 1934. This was the vexing question that the Court was presented with in this Shady Grove versus Allstate Insurance case. And in that case, they wound up adopting a relatively formalistic, in a fairly rigid way of defining this distinction between procedure and substance. And they allowed a class action to happen in the federal courts that couldn’t have happened under the courts of, in the courts of New York and under the laws under New York. And so following this Shady Grove decision, the law today is that you can have a class action in the federal courts in a type of claim where you can’t have a class action in the State courts of New York. And the reason for that somewhat surprising result is this sharp distinction that the Court has felt the need to draw between questions of quote, unquote substance and questions of quote, unquote procedure. So, there are two lessons I want to focus on we can, I think take away from this particular grappling with the substance versus procedure distinction. The first is that it’s a distinction that we can’t avoid grappling with. The Rules Enabling Act of 1934, that statute that carries into effect the federal rules of civil procedure, in its very text draws this distinction between procedure and substance. We have to draw this distinction. But it is a very difficult distinction to administer in particular cases. And part of what the Shady Grove decision illustrates is that a lot can be at stake, and if we approach this question with too much formalism, with too much rigidity, it can produce answers that don’t seem to make a lot of sense on the ground.

Two Key Lessons

The Rules Enabling Act of 1934

• . Carries into effect the federal rules of civil procedure
• . draws distinction between procedure and substance

First Principle of Trans-substantivity

• . rules operate irrespective of underlying substantive law
• . gives more formalistic and more rigid answers to procedure versus substance

The second lesson goes back to this First Principle of Trans-substantivity. The idea that the rules are supposed to operate irrespective of the underlying substantive law, trans-substantivity, right, invites us I think to give more formalistic and more rigid answers to this question of procedure versus substance. Because if you think about it, one alternative in the Shady Grove case would have been to say that the type of statute involved in the New York case is one that needs to be treated differently in a federal class action than other types of statutes might be treated in different types of lawsuits. That might have produced a sensible result. But its intention with this trans-substantivity principle, the procedure is not supposed to vary, depending upon the underlying substance of the legal dispute before the court. And so administering this distinction between substance and procedure is necessary and unavoidable, but also very difficult. And operates in some tension with this important, but, but sometimes excessively applied, principle of trans-substantivity, which says the procedure is supposed to operate in the same way, no matter what the underlying law. If procedure is supposed to operate in the same way, no matter what the underlying law, that encourages more formalistic or rigid answers to this substance procedure distinction. And we’ve seen that dynamic play out many times.

Arbitration is a mechanism by which litigants can choose to have their disputes resolved, not in our court systems, but before a private decision maker. Arbitrators are men and women who are paid professionals, whose job it is to resolve disputes that would otherwise be heard in the court system, but whom the litigants decide to hire to resolve their dispute instead. Now why might a litigant want to have a case heard before an arbitrator instead of before a court? Well broadly speaking, arbitrators are sometimes less formal. There is the possibility that arbitration might be less expensive than a lawsuit. Arbitration can produce a quicker result sometimes.

Why Choose Arbitration?

• . less formal
• . less expensive
• . quicker result
• . more final
• . less opportunities to appeal

Arbitration carries the promise, at least, of being more final because the opportunities to appeal an arbitration decision are fewer; and so litigants will often get a dispute that will be completely over at a, at a, a sooner point in the process from, from an arbitrator than would be true from a civil court system. There are many reasons why, historically, arbitration has been an option that some litigants have wanted to pursue. And in the United States, there’s a federal statute, the Federal Arbitration Act, which was enacted in 1925, which grants a favoured status to arbitration.

Federal Arbitration Act

• . enacted in 1925
• . grants favored status to arbitration
• . if people sign a contract to arbitrate instead of litigate, the contract has to be enforceable

And in particular, what this federal statute says is that if people sign a contract in which they agree that if a dispute arises between them, then they’re going to arbitrate that dispute instead of litigating it in the courts. Then that contract has to be enforceable and courts are not allowed to set aside that contract simply because they’re hostile towards the idea of arbitration that they don’t like the idea of arbitration. Okay. So in recent years, the practice of arbitration has wound up being a major focus of attention among courts and commentators for a very specific reason, which is, the capacity of arbitration to wind up not just being an alternative venue or an alternative mechanism for disputes to be resolved but also the capacity of arbitration to displace some of the more powerful features of our procedure system. And indeed, in recent years, the Supreme Court has decided a series of cases that have given defendants, and in particular corporate defendants, who are the ones who usually draft contracts, a lot of powerful tools for shielding themselves from certain types of civil lawsuits, and certain types of powerful civil procedure tools that might be available in the federal courts. This is actually one of the major issues that is getting discussed in the field of civil procedure and dispute resolution today. And it’s worth taking a moment to spell out exactly what is at stake here. A lot of the attention on arbitration, in the last several years, has focused on class actions, and the ways in which arbitration can be used to prevent plaintiffs from bringing class actions in certain types of cases. Class actions, that powerful tool that we discussed in the previous section, are this mechanism by which lots and lots of claims that might not be affordable to bring on an individual basis, can be collected together and brought on a representative basis, all at once, in front of a court. So let’s, imagine that we have a series of potential claimants, a class of potential claimants, all of whom have signed a similar contract. It could be a contract with a credit card company. It could be a contract with a cell phone company. And they think that they have a potential claim. Let’s say that the company, in drafting its contract, has included an arbitration clause. A clause which says, if you have a dispute with this company, then you agree that you’re going to resolve that dispute through arbitration, rather than by bringing a lawsuit. So, let’s then imagine that somebody believes that they’ve been injured and they believe that the entire class of people had been injured. The company has engaged in an improper billing practice and it’s engaged in that improper practice with respect to everybody who gets a certain service from that company; classic case where the plaintiff might come into court and say, I’d like to represent not just myself but an entire class of people who have been harmed. If the company has put an arbitration clause into its contract, then the company can respond by saying, you’re not allowed to bring that case in a court. You have to bring that court before an arbitrator. So, a situation like this would present two questions. First of all, can the defendant really force this case to be heard in front of an arbitrator instead of in front of a court? Can the arbitration clause really be enforced?

Question of Contracted Arbitration

• . Can the defendant force a case in front of an arbitrator?
• . Can the arbitration clause really be enforced?
• . Are there limits on the ability compel its enforcement?
• . Can it be heard as a class?
• .  Is there such a thing as class arbitration?
• . What are the circumstances of a class proceeding in front of an arbitrator instead of a court?

And more to the point are there any limits on the ability of the drafter of that arbitration clause to compel its enforcement. The second question is, let’s say the case is heard in front of an arbitrator. Can it be heard as a class, nonetheless? Is there such a thing as class arbitration? And what are the circumstances under which there might be a class proceeding in front of an arbitrator, instead of a class proceeding in front of a court? In a series of decisions over the last ten years or so, the Supreme Court has addressed these questions. And it has addressed these questions in a way that severely limits the ability of plaintiffs to bring class action proceedings. And in particular, it gives defendants and the people who draft contracts, mostly corporate actors who provide services or perhaps even who employ a lot of people. It gives a lot of tools to those types of defendants to shield themselves from certain types of class or, or mass adjudication. In particular, let’s talk about two cases that the Supreme Court has decided, that addressed this question of the ability of defendants, and in particular corporate actors, to use arbitration clauses to shield themselves from certain kinds of class actions or mass disputes. One of them is called AT&T Mobility versus Concepcion and it was decided in 2011. And the second is called American Express versus Italian Colours Restaurant, which was decided in 2013.

Supreme Court Cases

ability of defendants to use arbitration clauses to shield themselves from class actions

AT&T Mobility v. Conception

• . 2011

American Express v. Italian Colours Restaurant

• . 2013

Both of these were cases in which the corporate defendant had drafted a contract. In the case of AT&T Mobility, it was a contract for cell phone services that was drafted for the company’s customers. In the case of American Express, it was a merchant agreement that American Express entered into with certain merchants, like restaurants for example, that specified the terms on which those restaurants could accept American Express cards by way of payment. And in both of these contracts, the company included an arbitration clause, that said that this lawsuit had to be litigated if at all, as arbitration rather than as a lawsuit. And, both of these contracts were also designed to explicitly prevent class actions. And the arbitration clause not only said, this case has to be arbitrated, but the arbitration clause also said no class-wide arbitration. And in the case of At&T Mobility versus Concepcion, there were some provisions in the contract that sought to make it easier for individuals to bring individual arbitrations. But that made it clear that class-wide arbitrations were not permitted. In Italian Colours, there were provisions that not only made it clear that a class action wouldn’t be possible, but there were also provisions that prevented merchants from banding together on a more individual basis, and seeking to pool their resources, and make it more affordable for them collectively to bring a lawsuit asserting what was, in that case, anti-trust claims, federal anti-trust claims against American Express. Both of these lawsuits went up to the Supreme Court, on the question of whether these arbitration clauses could be enforced. And in both cases, the argument was not just a sort of abstract question about the enforceability of the arbitration clause, but they were questions specifically about what the practical impact of the arbitration clause would be, on the ability of people to assert their claims. So in AT&T versus Concepcion, the question was whether in the absence of a class action, there was going to be any real enforcement under state law against what the plaintiffs asserted was an improper billing practice on the part of AT&T Mobility. And in the Italian Colours case, the question was whether there would be any affordable mechanism at all for these individual merchants to assert their anti-trust claims. To assert that American Express was misusing its market power in some way, in defining the terms that it extracted from merchants, this was the allegation in their, in their payment relationships. And there were very good arguments to the effect, in both of these cases, that if the arbitration clause was enforced on its terms, that the practical consequence would be that there either would be very few claims brought, in the AT&T case, or there might be no claims at all brought, in the Italian Colours case, because it simply would not be affordable for individuals to assert these claims on their own. And in both cases, the Supreme Court held that under this very powerful statute, or the statute at least that it’s interpreted in very powerful ways, the Federal Arbitration Act, that the arbitration clauses had to be enforced. That the corporate defendants could draft these clauses, which it would offer to people as what’s often called a contract of adhesion. That is to say, these are the terms on which we’re willing to do business with you.

Supreme Court Decisions

Federal Arbitration Act

• . arbitration clauses had to be enforced

Contract of Adhesion

• . terms of business
• . non-negotiable

We’re not going to negotiate these contract terms. And you’ve probably signed half a dozen contracts of adhesion in the past couple of weeks, if you’ve made reservations online, if you’ve signed up for a gym membership. All of these everyday activities that we engage in, that involve clicking online or checking a box or signing a contract, have many, many terms in them that we would never think about trying to negotiate, and that indeed, might not be subject to any negotiation. That’s often described as a contract of adhesion. And defendants have the ability now, corporate actors have the ability now, to write these arbitration clauses that shield them from some of the very powerful procedural mechanisms by which people who think they’ve been injured, might otherwise be able to seek to pursue their claims and the question that was before the court in the Concepcion case and in the Italian colours case was, are there any limits on the ability of a corporate defendant to succeed, to enforce those arbitration clauses, even if what it means is that the plaintiff is going to be deprived of any practical opportunity to enforce their claims. And in both cases, the Supreme Court said, yes. And in, in the Concepcion case, which was a state law case, the court focused a lot on the ways in which federal law trumps state law Federal law in this case being the Federal Arbitration Act. And the court said, specifically, that even if the enforcement of an arbitration clause under this federal statute might mean that certain claims might quote, unquote, fall through the cracks. But that’s not a basis for arguing around the mandate of this federal statute as the Supreme Court interpreted it. The Italian Colours case was a case in which the claims at issue were federal claims, and so you had two federal statutes potentially squaring off against each other. The Anti-Trust Statute on the one hand, the Federal Arbitration Act on the other hand. And so the plaintiffs in the Italian Colours case said, well our case is different, there has to be some kind of accommodation between these two competing federal statutes. The Supreme Court wasn’t buying it and they said once again, as in Concepcion, that the mandate, what the court viewed as the mandate of the Federal Arbitration Act, require this arbitration clause to be enforced. And the court said, in the Italian Colours case, that the mere fact that a plaintiff has a claim under a statute like the Anti-Trust Statute, doesn’t guarantee that the plaintiff will have an affordable procedural path towards the vindication of that claim. And so even if the arbitration clause is structured in such a way that, as a practical matter, it becomes impossible for a plaintiff to pursue her claim, the mere fact that, as a practical procedural matter, the claim becomes unaffordable, doesn’t mean that, that other federal statute, that competing federal statute, has somehow been improperly treated or improperly served. Now, this I think once again, has two important lessons for us. Number one, procedure really matters, and the mechanisms by which plaintiffs seek to enforce their claims are sometimes just as important as the definition of their substantive rights under the applicable law. And, this is a fact that the people who draft contracts and the people who make major financial planning understand very well.

Two Key Lessons

Procedure matters

• . mechanisms to enforce claims are sometimes as important as the definition of substantive rights under the applicable law
• . contracts and financial planning
• . focusing on how procedure operates is often just as important for corporate defendants and for plaintiff’s advocates as well as focusing on the definition of people’s substantive rights

And so, focusing on how procedure operates is often just as important for corporate defendants and indeed for plaintiff’s advocates, as well as focusing on the definition of people’s substantive rights. The second lesson that I think this has for us, is the importance of remembering our history. We started this conversation with this quote, this famous quote from Karl Llewellyn, that it is important to read the substantive law courses in law school through the spectacles of procedure.

Two Key Lessons

Procedure matters

 

Remember our history

• . important to read the substantive law courses in law school through the spectacles of procedure
• . substantive law means nothing except in terms of what procedure says that you can make real

Because substantive law means nothing except in terms of what procedure says that you can make real. In 2013, we had the Supreme Court saying something that sounds almost the polar opposite. The Supreme Court’s saying, yes, you may well have substantive rights, but having a substantive right doesn’t entitle you to an affordable procedural path for actually vindicating and enforcing that right. In saying that, the Supreme Court seems, in some ways, to have forgotten or perhaps even to have rejected the lessons that gave rise to the federal rules of civil procedure in the first place. The lessons that said that you need to understand substantive principles through the spectacles of the procedure, because substance means nothing except in terms of what procedure says that you can make real. In deciding how to administer questions of trans-substantivity, how to draw distinctions between substance and procedure, and when it should be permissible for powerful actors to opt out of the procedural system, even when it means shielding themselves from all kinds of liability. I think it’s very important for us to continue viewing the substantive law through the spectacles of the procedure. The observation that Karl Llewellyn made, way back in 1929, has proven to be just as true today as it was then.

Criminal Law Part Four

Let us begin with the affirmative defences of excuse. In cases of excuse, defendants have done wrong, but they are not held accountable because we think there is some reason that they are not responsible for what they did. In cases of justification, the defendant is a responsible person who has done the right thing or the permissible thing. In cases of excuse, a non-responsible person has done the wrong thing. Examples of excuses are infancy, insanity and duress.

Excuses

            Infancy

            Insanity

            Duress

Understanding them requires an explanation of what the law means by a responsible person. I believe that the criminal law quite precisely agrees with the ordinary morality criteria for responsibility and excuse. Recall our discussion of the types of creatures we are, the types of creatures who can rationally be guided by reason. Now think about your implicit standards for believing that someone is the type of person, who would be blameworthy if they did wrong. You expect such people to have the capacity to be reasonably rational and to have acted without compulsion. If they have this rational capacity and were not compelled, then you would consider them responsible. In contrast, if the person does not have the capacity to be rational, or if they were compelled to act, you would be inclined to excuse and forgive them. The criminal laws excuses mirror these everyday criteria. We excuse young children who intentionally do wrong, because their capacity for rationality is not fully developed. We excuse some people with mental disorder, because the disorder undermines their capacity to act rationally even if they are prima facie guilty. Suppose someone threatens to kill you unless you kill someone else. If you yield to the threat and kill the innocent third person, we might excuse your intentional killing; because we would conclude that the threat produced such a hard compelling choice that we couldn’t expect you not to kill and thus you are not responsible for the intentional killing. A particularly hard question about excuses is raised when a wrongdoer’s capacity for rationality was seemingly fine and no one was threatening him, but he claims that he couldn’t control himself or couldn’t help himself when he committed the crime. Cases of addiction or child molestation are examples. But exploring this topic of self control, excuses are for an advanced and not an introductory lecture. Indeed the whole issue of excuses is theoretically and factually complex, but once again, you must have the general idea. I have not previously mentioned free will in this lecture. Free will is not a criterion for any criminal law doctrine. And our whole system of criminal blame and punishment, does not depend on a presumption of so called metaphysical free will in the strong sense. That is the ability of people to act uncaused by anything but us. When we excuse, it is actually because defendants lack rational capacity or are compelled to act, and not because they lack free will. There is a philosophical metaphysical debate about free will and it’s relation to responsibility in some ultimate sense. But it is not a debate within criminal law. Now let us return to Eric Clark. Permit me to change the facts a bit. Supposed Clark knew Marts was a person and a police officer, but as a result of a severe mental disorder, he in a delusional way believed that when Marts stopped him, Marts was about to kill him. He therefore shot and killed Marts in the belief he needed to do so, to save his own life. In this case he purposely took the life of a victim, he knew was a person and a police officer, but he acted for a crazy reason: His delusional belief that was a product of his disorder, rather than being caused by his carelessness or the like. His capacity for rationality, under the circumstances, was severely compromised, and he is a candidate for the excuse of legal insanity. The criteria for this excuse, and recall that all justifications and excuses have their own criteria, are that he was suffering from a mental disorder and, more importantly, as a result did not know right from wrong. In this hypothetical case if we believe him, he did suffer from a mental disorder and as a result he didn’t know that killing Marts was wrong. He “delusionally” and genuinely believed that his own life was wrongfully in danger, and that he had a legal right to kill Marts to save his own life. Never the less, it was wrong to kill Marks because the officer was not threatening Clark. But Clark was not a responsible person because he did not know that he was doing wrong and it was not his fault that he made this mistake, thus he will be acquitted by reason of the excuse of legal insanity. Assume that its prosecution is able to prove its case beyond a reasonable doubt and that no affirmative defence is established. The defendant will then be found guilty of the crime charged and deserves to be punished. At this stage we are ready for the last part of our discussion, sentencing the imposition of the proper punishment.

Sentencing

the imposition of the proper punishment

Most experienced criminal defence attorneys will tell you that their clients care far more about whether they will go to prison, and for how long than about whether they are convicted. Yes, a conviction imposes blame and stigma, but for most people, going to prison, the primary punishment in the United States is profoundly painful and to be avoided for the many reasons that are not difficult to imagine. Thus, the possible punishments, and the process by which they are imposed, are of the utmost importance to the state and to the individual. The goals of sentencing are generally the same goals that generally justify criminal blame and punishment. Giving offenders their just dessert and preventing crime. But sentencing schemes are seldom precisely clear on how these goals should be weighed and balanced in general, or how they should be applied in individual cases. Recent decades have seen greater emphasis on retribution and less indeterminate sentences. But the pendulum may be swinging towards more evidence based crime control that focuses on the offender’s risk of future criminal behaviour. The punishments that may be imposed for crimes are set by the legislature, or by an administrative agency the legislature authorizes to do this. The Supreme Court has repeatedly held that the 8th amendment’s prohibition of cruel and unusual punishments sets almost no constraints on the terms of years legislatures may authorize.

Supreme Court Rulings

8th Amendment’s prohibition of cruel and unusual punishments sets almost no constraints on the terms of years legislatures may authorize.

California’s “three strikes” law

Permitted 25+ years for a third felony, even if felonies were not so serious

The Supreme Court has held some exceedingly severe sentencing schemes, such as California’s original three strikes and you’re out law. Which permitted a sentence of 25 years to life, for a defendant convicted of a third felony, even if the third felony was relatively minor, and the prior two felonies were not so serious. There is enormous disparity across and within jurisdictions concerning the proper sentences for various crimes. Once again, the federal laboratory is at work. Juries decide whether the defendant is legally innocent or guilty, and with the primary exception of capital sentencing, judges impose sentences. Generally, the legislature provides for a range of sentences for each crime, but is often unclear what sentences, retribution or crime control demand. Judges therefore, have wide discretion to decide what sentence to impose within the statutorily authorized range. They’re typically aided in this by non-binding pre-sentence reports prepared by probation officers, or other court personnel that address the defendant’s background, the circumstances of the crime, and other sentencing considerations. In some jurisdictions, judicial discretion is constrained by legislatively mandated guidelines, or by required mandatory minimum sentences that must be imposed. Despite attempts to rain in unjustified discretion, inequality in sentencing for similar crimes committed by similar defendants remains a disturbing phenomenon. There has been a great deal concerning sentencing in recent decades, reflecting the recognition of how important it is to individual lives and to the society as a whole. Everyone hopes that the attention paid and the thought given will produce a more just and effective sentencing system. But whether that result will be achieved is an open question. Let me conclude this section on sentencing by pointing out another way in which the United States is distinctive. Imprisonment and fines is a common feature across a wide range of nations, but what sets apart sentences in the United States, compared to other developed nations, is the much greater length of prison terms we impose for most crimes. I leave aside here, capital punishment, which among western developed nations, only the United States imposes. Despite the controversy concerning the moral appropriateness and crime-control effectiveness of the death penalty, and the distinctiveness of our imposing it, it applies to so few cases that for this lecture I will simply treat it as an example of comparative harshness of our punishments. Let me therefore return to the example of imprisonment to illustrate my point about the length of sentences. Please compare Bernard Madoff, whose massive fraud harmed in impoverished large numbers of innocent people, wiping out retirement savings and other crucial forms of investment, and security. To Anders Breivik, the young Norwegian internationalist, who killed eight people in Oslo bombings to create a diversion, invaded a summer youth camp for members of a political party he despised and systematically slaughtered 69 people at the camp. Madoff, who was 71 years at the old at the time of sentencing for his fraud, received 150 years in prison for his Ponzi scheme. Breivik, who is 32, received 21 years for his mass murders of 77 people. Breivik would have to serve at least ten of the 21 years, although, he could be detained for much longer in Norway on non-penal grounds. Non-penal grounds, if he were found to still be dangerous with no lack of compassion or respect for Madoff’s victims. I can safely say that what Madoff did was far less blameworthy and harmful, but our law permitted a vastly greater sentence than Norwegian law provided for Breviks multiple murders. Of course, Madoff was much older and likely to effectively serve less time, but that is beside the point. If he had been Brevick’s age the sentence disparity would be even clearer. It goes beyond the scope of this lecture to explain why our sentences are so comparatively severe. And I’m here taking no position on whether such severity is justified, but it is simply a fact that sentences in the United States tend to be comparatively severe. Let me say a few words in conclusion about the future of criminal law. We have covered a lot of territory. Here is a brief speculation about the future. As we all know from reading the newspapers and other media, there have been major advances from the various sciences in our understanding of the causes of human behaviour. Hardly a day goes by without a revelation from psychology, genetics, neuroscience, and other disciplines that study human behavior. Our criminal law is based as we have seen on our ordinary understanding of ourselves as persons. As we learn more and more about ourselves, will we come to see ourselves as the non-responsible victims of casual forces over which we have no control. If so, this would justify abandoning our practices of blame and punishment that take people seriously as moral agents. Many think that this development is possible and even desirable. In contrast, I think that this is highly unlikely for many reasons. And I believe that our view of us as creatures who act for and can be guided by reason, which is the basis of criminal law and ordinary morality as, is here to stay. And it’s a good thing too. Our current concept of personhood is at the core of concepts like liberty dignity and respect and concern for people that contributes to the richness of our lives. I believe it would be a human disaster to abandon these concepts, and there is no scientific or moral justification for doing so. Criminal law is a complex and fascinating topic. I hope that you found this lecture interesting, and that it had provided you with tools to think about criminal justice issues as concerned citizens.

Criminal Law Part Three

Let’s begin this section with the discussion of the structure of criminal guilt. That is, how the state establishes criminal liability. The structure of guilt, criminal guilt, includes what is known as the prosecution’s prima facie case, and what are termed affirmative defences.

Structure of Criminal Guilt

Prosecution’s prima facia case

defendant guilty if prosecutor proves case

Affirmative Defences

defined by their elements

 At first I’ll be speaking rather abstractly, but don’t worry, I’ll soon give concrete examples. The definitional criteria for culpability for criminal offenses are what lawyers call the elements of the crime. They are typically defined by statute, although courts may later interpret the meaning of these criteria. These elements are known as the prima facie case. The constitution requires that the prosecution must prove the definitional elements of an offense beyond reasonable doubt. If the prosecution cannot prove any one of the elements of the charged crime, the defendant will be acquitted of that crime. Although the defendant may be guilty of some other crime, for which the prosecution can prove all the elements. If the prosecution can prove the prima facie case, all the definitional elements of the crime beyond a reasonable doubt, the defendant will be guilty unless, and it is a very big unless, the defendant can establish what is known as an affirmative defence. Affirmative defences are also defined by their elements. Even if the defendants conduct met the prima facie case, the defendant will avoid guilt if an affirmative defence is established. The United States Constitution permits the placing of the burden of proof for affirmative defences, on the defendant, if a jurisdiction wants to do this and many do for some affirmative defences. In some, criminal guilt requires proof beyond reasonable doubt of the prima facie case, and the failure to establish an affirmative defence. Guilt is avoided, the defendant will be acquitted and legally innocent of the crime charged, if either the prosecution cannot prove the prima facie case beyond a reasonable doubt or an affirmative defence is established. Let us now use a concrete example based on a real case, Clark versus Arizona that reached the United States Supreme Court. Eric Clark was riding in his pick-up truck in Flagstaff, Arizona when he was stopped on a routine traffic stop by Officer Jeffrey Moritz who was in full uniform and driving his police cruiser. The stop quickly turned deadly as Clark shot and killed Moritz. Clark was charged with the murder of a police officer. In Arizona, the crime was defined as follows, intentionally, or knowingly killing a law enforcement officer, who also had to be a person, obviously, in the line of duty. Note that this particular form of homicide focuses on the identity of the victim. It carries enhanced penalties because we believe that killing an official member of the government, who serves to protect all of us, is more serious than the already serious killing of a civilian. Thus, such defendants are more culpable if all of these elements are proven, and we want to deter such conduct with higher penalties, especially to protect police officers. Thus, the prosecution’s case was to prove that Clark killed Moritz, that Clark killed Moritz purposely or knowingly. And that Clark knew that Moritz was a human being and a police officer acting in the line of duty. But even if the prosecution was able to prove this prima facie case, suppose Clark killed because someone threatened to kill him if he didn’t kill Moritz. Or suppose Clark suffered from a severe mental illness, and in delusion believed that Moritz was about to kill him, Clark. In either case, maybe Clark shouldn’t be found guilty. Even if the prosecution can prove that he intentionally killed a police officer, knowing he was a police officer in the line of duty. We shall use this example as we examine the prima facie case, and affirmative defences in more detail. In this section I will discuss each type of element in the definition of a crime and how the defence can try to show that the element did not exist, and thus that the element is innocent of the crime requiring that element.

The Prima Facie Case

• each type of element is definition of a crime

• defence can show element did not exist

• defendant is innocent of crime requiring that element

• conduct element: prohibited type of behaviour

Each crime includes a conduct element, a prohibited type of intentional behaviour. In the Clark case, the conduct is any type of intentional killing conduct. So, it wouldn’t matter if Clark intentionally shot Moritz, stabbed him, bludgeoned him, strangled him, or pushed him off a cliff. This requirement that the defendant intentionally engaged in prohibited conduct is known as the act requirement. After all, if the defendant’s bodily movement was not an action, how can we blame the defendant? Suppose for example after the traffic stop, Clarks, Clark and Moritz were talking about the ticket. Suddenly, as a result of an unforeseeable neurological event, Clark’s arm had a spasm! and struck Moritz in the head, killing him. We would say in such cases that Clark didn’t act at all, and can’t be blamed for Moritz’s death. In our actual case, there is simply no reason to believe that Clark shooting at Moritz wasn’t an intentional action. So the prosecution will have little trouble proving the act requirement. As we saw, mental states are the primary fault criteria. Guilt under the homicide statute in Clark requires that when Clark intentionally shot at Moritz, he did so with the purpose of killing Clark or knowing that a gunshot was practically certain to kill him. This looks like another easy win for the cross persecution, but Clark undisputedly suffered from paranoid schizophrenia. There was evidence they had delusional beliefs that space aliens were persecuting them. Clark claimed that he genuinely believed that Moritz was a space alien. If we believe him, then he did not purposely or knowingly kill a human being. His purpose or knowledge concerns space aliens, and killing a space alien with any mental state is not a crime, at least not yet. Clark also had to know that a particular so-called circumstance element existed, namely that Moritz was an officer acting in the line of duty. But even though Moritz was in uniform and in a police cruiser, if Clark genuinely believed he was a space alien impersonating a police officer, then Clark really didn’t know Moritz was an officer acting in the line of duty. Indeed, if he really had this belief, he wouldn’t be guilty of reckless homicide, because he was not aware that he was risking the life of a person by shooting at a supposed space alien. At most, he would have been guilty of negligent homicide because he made an unreasonable mistake about the nature of his victim. A reasonable person would have been aware, as Clark arguably was not, because he was acting under the influence of a delusion, that Moritz was a person and police officer, and not a space alien. There are other elements the prosecution must prove to establish guilt for criminal homicide. And there are many ways other than introducing mental disorder evidence, that a defendant can try to cast reasonable doubt on the elements of the prosecution’s prima facie case, but I’m sure you get the general picture. In the event, this case was tried before a judge. Clark waived his right to a jury presumably because he thought a judge, who on average is more highly educated than a juror, would better understand and sympathize with expert psychiatric or psychological testimony. But the judge thought that the prosecution had proven that Clark knew that Moritz was a person and a police officer, and that Clark had killed Moritz on purpose. Thus Clark, Clark was prima facie guilty, and would be convicted of murder unless he was able to establish an affirmative defence. Let us now therefore turn to understanding the affirmative defences. In essence, the elements of the prima facie case do not require proving why a defendant acted as he or she did. It is simple prima facie wrong, for example, to kill another human being intentionally. If you do that, you are prima facie guilty of murder. But we all understand from our ordinary experience that people sometimes do things that at first appear wrong, but then, when we understand why the person did them, we may think that it was not wrong after all. Or, even if we think that it was wrong, we may think that the person was not blameworthy because there was something amiss about the defendant, or the situation. There are two classes of affirmative defences. Justifications and excuses that follow from these observations, that sometimes these things that appear wrong, may not be wrong.

Affirmative Defences

Justifications

Excuses

And sometimes the person, who does wrong, may not be a responsible person. Let us consider them in order, beginning with justifications. Justifications exist when conduct that is ordinarily wrongful, such as the intentional killing of a human being, is in fact right or at least permissible under the specific circumstances. To succeed with a justification, the defendant must have had a reasonable belief that he had an objectively good reason in these circumstances to act in ways that are ordinarily wrong. By an objectively good reason, I mean a reason that we as a society think is a good reason. Not simply a reason an individual thinks is acceptable from his own idiosyncratic point of view. Justifications do not require that the person formed a correct belief about the need to act in ways that would otherwise be wrongful. It is sufficient if their belief is objectively reasonable. That is all we can expect of fallible creature such as ourselves. Self-defence is a perfect example of a justification. We as a society believe that people are justified in using intentional force to prevent immediate wrongful aggression against them. Suppose I wrongfully threatened to kill someone with immediate deadly force. My innocent victim would be justified in protecting his own life with deadly force. He would be justified in intentionally killing me, because the intentional killing of a wrongful aggressor when there really is no alternative is preferable to an innocent life being taken by a wrong doer. Intentional killing is thus right, or at least permissible under the circumstances. Imagine, for example, that Moritz, the police officer, hated Clark and stopped him for the purpose of killing Clark, and Clark responded more quickly to kill Moritz. If that had really happened, Clark’s killing of Moritz would be justified self defence, and he would be fully acquitted even though the prosecution prima facie case could be established. Other examples of justification that include defence of others, and defence of property: Intentional harming of others is considered right or permissible under limited conditions in these situations. But, once again, what all justifications have in common is that otherwise wrongful conduct is right, or permissible under the circumstance. Notice that there is nothing wrong with the defendant in these cases. The defendant was a responsible person, and was simply doing the right or permissible thing in the circumstances of the case. Before we turn to our discussion of the affirmative defences of excuse and the remaining topics in this introduction, let us take a final break.

Criminal Law Part Two

With the goals of criminal law that we discussed before the break, retribution and crime control, in mind. Let us turn to how society defines criminal behaviour. It is often said that the entire body of criminal law can be described by two principles: The harm principle and the fault principle. The harm principle tries to pick out those behaviours that produce such substantial and unjustified harms, or such risk of harm, that the criminal law is the appropriate response.

How Society Defines Criminal Behaviour

Entire Body can be described by two principles:

•                         The harm principle
•                         The fault principle

Some harm, such as the use of force, theft, and fraud are the so called core of the criminal law. Familiar examples are homicide, rape, arson, and stealing another’s property. They involve substantial harm to others, and their prohibition is uncontroversial and found in all mature systems of criminal law. In the last century however, and increasingly in recent decades, criminal law is used to address a wide variety of potentially problematic activities that are none the less not obviously sufficiently clear violations of the duties we owe each other to warrant societal blame and punishment. For example, do you think that a person should be convicted of a crime and sentenced to prison for passing oneself off as the war hero by wearing medals the person did not earn? It’s insensitive and immoral behaviour like intentional emotional cruelty, but should it be regulated with criminal law and potential imprisonment? Congress thought so and passed the stolen valour act of 2013, which the President signed into law. Should prostitution be a crime? Or should it be dealt with by public health measures and other forms of non criminal regulation? Such expansive use of the criminal law is controversial. Because it is not clear that criminal law regulation is morally appropriate and necessary. And employing the criminal law when it is not appropriate and not necessary tends to undermine the moral message that the criminal law distinctively is meant to convey. A current example of the issue of the appropriate use of the criminal law is the extensive law enforcement approach to branding the use recreational use of abusable drugs, other than alcohol and nicotine, of course. There’s substantial debate about whether criminal law regulation as the primary means to prevent drug use is a wise and cost effective policy. More generally, criminal law as a regulatory tool has become so expansive. That is unclear that the harm principle is now using to limit the proper reach of the criminal law. It is often said that our Federal system provides 51 laboratories, the 50 states, and the Federal Penal Code for trying to produce the best policies. This permits substantial experimentation and responsiveness to differing values and attitudes in different jurisdictions rather than a one size fits all approach. Moreover in our legal order, the Constitution places almost no limits on the ability of a jurisdiction to criminalize an activity. That is, the various states and the federal government have essentially no restrictions on the type of conduct within their jurisdiction, that they can prohibit using the criminal law. Exceptions are infrequent, are never usually based on a conflict between the prohibition and another constitutional value. To return to the example of the stolen valour act raised shortly ago. The Supreme Court found an earlier version of the act that prohibited lying about military heroics unconstitutional, because it violated the First Amendment’s protection of free speech. Otherwise, it would have been perfectly acceptable to criticize such unsavoury, but not terribly harmful behaviour. Another unusual example is a case in which the Supreme Court held that it was unconstitutional to blame and punishes a person simply for the status of being a drug addict. Not for use, not for possession, but simply for the status of being a drug addict. because statuses are not actions. They are not behaviour and thus they are beyond the reach of the criminal law. But such instances are indeed unusual. Despite the variation that our federal system permits there are none the less substantial similarities among the various criminal codes that they all start from similar legal and cultural heritage. Now let us turn to the fault principle.

The Fault Principle

Guides who deserve criminal blame and punishment for behaviour prevented using criminal law.

This is the principle that guides who deserves criminal blame and punishment for the behaviour that we wish to prevent using the criminal law. Examples of such behaviours are killing conduct, non-consensual sexual contacts, burning of buildings, takings of another property, and the like. All these harms can be caused without fault if a person was acting as carefully as one could expect under the circumstances, but caused an accident nonetheless. Accidents happen without fault. Indeed, the only way to prevent all accidents would be to completely cease all interpersonal human interaction. When innocently cause harms occur such cases are occasions for regret, but hardly for criminal blame and punishment. Indeed if the harm doer, and note that I say harm doer and not wrong doer was sufficiently careful victims of the accident would not even be entitled to tort damages, because the harm doer did not violate the reasonable standard of care that is the touchstone of tort liability. So if causing a harmful result by one’s behaviour is not a sufficient condition for blame and punishment, what is the essence of the fault principle? We can best start to explore this question with a quote from former Supreme Court Justice Oliver Wendell Holmes. Justice Holmes wrote that even a dog knows the difference between being stumbled over and being kicked.

Essence of the Fault Principle

“Even a dog knows the difference between being stumbled over and being kicked.”

Justice Oliver Wendell Holmes

 

Mental state with which the person acted.

            Intended harm vs. accidental harm

Just so the law and ordinary morality, I should add, assess for not just on the basis of results or outcomes of our behaviour, but more importantly on the basis of the mental state with which the person acted. An intended harm, a violent kick of an enemy is vastly more blameworthy than an accidental kick that is equally painful to the victim. Mental states are the royal road to moral fall. The mental state with which a person engages in potentially harmful behaviour is the best indication of the person’s attitudes towards the rights and interests of fellow people. If someone is being as careful as humanly possible, then the person has manifested complete respect for the rights and interests of others. If the person has intentionally caused the harm without any justification then the person has demonstrated that the rights and interests of the victim do not matter. Such indifference is the essence of moral fault and blameworthiness. The mental states that make conduct criminal violations are knows as the mens rea. This is an old Latin term that literally means a guilty mind. But this is misleading.

Moral Fault and Blameworthiness

Mens rea

•  “guilty mind”
• mental state that is part of the definition that makes a specific behaviour a crime.

A more precise meaning would be the mental state that is part of the definition that makes a specific behaviour a crime. There is nothing problematic about forming intentions. We do it unproblematically all the time. I am intentionally delivering this lecture and you are intentionally listening to it. But there is nothing criminal about delivering or viewing an academic lecture. But as we just saw, the mental states that accompany various potentially harmful behaviours distinguish how blameworthy the person is. Is the combination of acting in prohibited ways coupled with a mental state indicating culpability that are the pre-conditions for fault. The criminal law is littered with mental state terms that are parts of the criteria for crime. Often such terms are confusing. But, in the last half century, a law reform organization based in Philadelphia, the American Law Institute has published a model penal code that identifies blame worthy mental states with some care. Although it is only a model code, and it is not binding on any jurisdiction,. It has had enormous influence on the reform and evolution of criminal law, since it was published in the early 1960’s. It identifies four culpable Mental States: Purpose, Knowledge, Recklessness, and Negligence.

Mental States

1.             Purpose
2.             Knowledge
3.             Recklessness
4.             Negligence

Let me use an oversimplified example of homicide to define them for you. Purpose has its ordinary language meaning. That is, to do something on purpose. The result is your conscious goal. So if I kill purposely, this means that I meant to kill the victim, I did it on purpose. Knowledge means simply that you are aware of some fact, or practically certain that it is true. Suppose for example I want to blow up a plane to destroy the cargo so that I can collect insurance proceeds. The crew, of course, dies in the explosion. Was it my true purpose to kill them? Not necessarily, I may even have foolishly hoped that a miracle would occur, and that they wouldn’t die. Nevertheless, I knew it was practically certain that the crew would die and I would be guilty of knowing homicide. To define the other culpable mental state terms, recklessness and negligence. Let us return to the example of our speeding driver which this lecture used earlier. The driver certainly did not have the goal that someone should die and he was not practically certain that someone would be killed as a result of his enormously dangerous driving. But he created an immense amount of risk of death. That was completely unjustified under the circumstances. Recklessness means that the person is actually aware of a risk he is creating. It is actually in his mind, but he decides to run that risk despite recognizing the danger. The driver would thus be guilty of reckless homicide if he was actually aware of the risk of set, of death or serious bodily injury, but he decided to run the light anyhow for no reason with any social justification. Negligence is defined as being unaware of a risk a person has created. But under conditions in which a reasonable law abiding citizen should have been aware of the risk. The person that’s failed to pay the kind of attention we expect of each other when creating unjustified risks. Even if our driver was somehow not aware of the risk of death or serious bodily harm he was creating by his dangerous driving. He certainly should have been aware. In criminal law, the amount of risk that must be created for criminal liability is greater than in tort law, reflecting the criminal law’s concern with sufficient culpability to justify, state blame, and punishment. Remember that I said that the mental states acc, mental state accompanying behaviour is an indication of the person’s attitudes towards the rights and interests of others who might be affected by the behaviour. The more indifferent someone is, the more blame worthy. And they are almost certainly more dangerous if they are more indifferent. The four mental states I have defined, purpose, knowledge, recklessness, negligence, represent an imperfect, but good hierarchy of different levels of blame worthiness. To continue the homicide example, killing purposely or knowingly is more indifferent and generally more dangerous than killing by the creation of risk with awareness of the risk,  which is in turn more blameworthy than killing without awareness of risk, but one, but when one should have been aware of the risk. And the severity of punishments that may be imposed reflect such different levels of blame worthiness, even when the result, such as death, is the same. There is one major exception to the full principle in the United States criminal law so called crimes of strict liability. These permit criminal blame and punishment, simply for engaging  in the prohibited conduct. Even if one’s behaviour was blameless. For example, shipping certain goods in interstate commerce without a proper label may be a crime. Imagine a midsize business that is a wholesaler and distributer of pharmaceuticals. The firm packages and labels the drugs before shipping them. Suppose one batch is not properly labelled, all though the firm management had instituted exceptionally fine training and quality control for the labelling process there is no perfect process. Innocent accidents happen, and the business and its officers are blameless. Depending on the circumstances the officers and perhaps the business itself are nonetheless criminally liable, and may be blamed and punished. Such crimes largely address public health and safety issue and carry light punishments and stigma, but not always. Some strict liability crimes carry heavy penalties. Such crimes, and there are many, many in contemporary criminal codes are extremely controversial because they potentially blame and punish people engaging in legitimate activities in blameless fashion. Given the immense importance of fault in criminal law, the question is whether it is fair to use the criminal law to regulate such behaviour. Especially since other forms of regulations such as civil fines might be equally effective. Having considered the harm and fault principles that guide the definition of crime, we will turn to the actual structure of criminal guilt after a break.

Criminal Law Part One

As is well known, the American political system is federal. The states and the federal government are independent but related entities and each has its own legal system. There are essentially 51 sets of criminal laws, one for each of the 50 states and the federal government. This lecture will attempt to provide a general overview but you should recognize that there may be substantial variation concerning particulars across jurisdictions.

Overview of Criminal Law

1. Nature of Law

2. Criminal Law Distinctions

3. State Blame and Punishment

4. Harm and Fault Principles

5. Structure of Criminal Guilt

6. Sentencing

I begin by describing the nature of law and what is distinctive about criminal law that differentiates it from civil regulation. Then I address the justifications for state blame and punishment, which are the touchstones of criminal law. The next section describes the harm and fault principles that guide definition of so much of the criminal law. Following that, this lecture describes the structure of criminal guilt, that is, how criminal liability is established. The lecture concludes by considering sentencing. I will also try to say what is distinctive about United States criminal law, but United States criminal law is very similar in most, but not all respects, to the criminal law of other developed, post industrial countries. What is distinctive about law and about criminal law in particular? In this section, I first offer a simplified picture of what law is, and then I turn to what is distinctive about criminal law in particular. It is difficult to describe what is distinctive about criminal law, without saying something about what is distinctive about law as a way of regulating and ordering our lives together. Consider what kinds of creatures we are. As Aristotle famously observed millennia ago, we are social creatures, but so are ants and chimps. What is different about us, we human beings, is that we’re the only creatures on earth that have linguistic abilities, and are able to be guided by reasons. We have biological predispositions like the other animals on earth, and these probably set limits. But we are the only creatures that self consciously, and intentionally, create systems of rules and institutions to help us order our lives by giving us reasons to behave one way or another. There is great diversity among human beings and how they order their lives, but the need for informal and formal rules to order them is universal, to make successful human life possible. Please forgive me for using a simple and quite crude example using ordinary language. Suppose while you are attending some social gathering, you develop an intestinal cramp and really want to fart to relieve the pressure, probably you won’t, but why not? After all, you’d feel so much comfortable if you did. You won’t because there are rules of etiquette and social norms that reject such intentionally boorish, rude behaviour for which you might be ridiculed, criticized, or socially excluded. You won’t fart either because you agree with the rule, have made it your own by internalizing it, or because you fear the consequences for violating it, or both. Customs and morality are similar sets of rules that order our lives.

“Enforcement Mechanisms”

• Social exclusion
• Criticism
• Condemnation

All these systems of rules have their own enforcement mechanisms, again ranging from social exclusion to criticism and condemnation. Law is yet another human intervention of a system of rules to regulate our interpersonal life, generally, and to moderate conflict in particular. What is distinctive about law however is that the creation and enforcement of legal rules is accomplished by the state, including its near monopoly on lawful force, even when a legal dispute is between two private parties. If the parties can not resolve their disagreement privately, they go to law to adjudicate the conflict and enforce the outcome if necessary. Well, all of us are acting in the shadow of the law which gives us reason to behave one way or another. No blind instinct necessitates adherence to the rules and indeed we often violate them. But the rules always give us explicit and implicit reasons for action even when we habitually and unthinkingly follow them. With this simplified understanding of what law is in mind, let us turn to what is distinctive about criminal law. Let us begin with a simple, but realistic example that is not for the faint hearted. Imagine an aggressive 21 year-old man who enjoys driving at very high speeds on the highway, behaving dangerously thrills him. One day he is driving at 75 miles per hour in the middle of the day on a semi-urban undivided roadway that has one lane in each direction, a 45 mile per hour speed limit, and intermittent traffic lights. He sees that a traffic light up ahead is about to turn red. Although not drunk, his blood alcohol is just above the legal limit. Instead of slowing down and stopping as he should, the man decides to run the light for the fun of it and speeds up to more than 90 miles an hour to make the light. Alas! The light turns red just as he reaches the intersection and a crossing vehicle properly enters it. Our driver crashes into the hapless other vehicle, killing the driver and paralyzing the passenger, who is irreversibly quadriplegic. The physical evidence and eye witnesses leave no doubt about the driver’s exceptionally dangerous behaviour and a breathalyzer test confirms that his blood alcohol content was above the legal limit. How does united state law respond to such an unnecessarily sad tragedy? First, the families of the victims could sue the driver for civil damages to compensate them for the harm done by his negligent behaviour. This is a province of tort law, the legal rules that deal with certain types of civil harms including personal injury. This course on introduction to law includes a module on torts. Of course, money can never replace a human life or fix irreversible disability. But the point of civil damages is to try and make the victims as whole as possible given the inevitable limitations of money as a remedy. But the driver’s behaviour also manifests massive moral indifference to the rights and interests of others. It was a gross violation of the duty we all owe each other to avoid unnecessary harms. Compelling the driver to pay money damages seems an insufficient response. His behaviour seems to call for a public response on behalf of society for societal blame and punishment. This is the province of the criminal law. Crimes are distinct from civil wrongs because crimes morally wrong all members of society and are prosecuted by the state rather than by private parties. Reflecting these distinction criminal cases are titled, not Smith versus Jones. Rather they are the titled The People versus Jones, or the State versus Jones, or the United States versus Jones in federal criminal cases.

Criminal Lawsuit Titles

• not Smith v. Jones
• The People v. Jones
• State v. Jones
• United States v. Jones

Crimes or wrongs against we the people, as well as the individual victims. Criminal law and tort law and both methods of regulating our lives together and they share some goals.

Basis of Criminal Law

“on moral values about what we owe each other and then imposes state blame and punishment for the gross failures of obligation”

Each involves some degree of blame and each includes sanctions, but only criminal law is based fundamentally on moral values about what we owe each other, and then imposes state blame and punishment for the gross failures of obligation that occur all too often. State blame and punishment are the most severe impositions of state power, because they involve official public blame and stigma and the infliction of punishment, that is, the infliction of pain, because the offender deserves it. Because criminal blame and punishment are such severe inflictions, there is a different level of burden of proof in civil and criminal law. In civil law, the party bringing the suit must prove the wrongful injury by a standard known as the preponderance of the evidence, which is interpreted to mean more likely than not.

Burden of Proof

Civil Law

Party bringing the suit must prove wrongful injury by preponderance of the evidence

More likely than not

Criminal Law

State must prove the defendant’s behavior was criminal beyond a reasonable doubt

In other words, if the evidence slightly favours the plaintiff, that is, the party who is seeking compensation, the plaintiff wins and the defendant must pay damages. In criminal law by contrast, the state must prove that the defendant’s behaviour was criminal beyond a reasonable doubt, this does not mean beyond any doubt. That degree of certainty is beyond human capacities in most cases. But before the state can impose blame and punishment, it must demonstrate with a very high degree of certainty that the defendant’s conduct was criminal. We impose such a high degree of burden on the prosecution because the consequences are so potentially grave to the defendant. We favour the error of acquitting the guilty to the error of convicting the innocent. The differing levels of burden of proof thus reflect how much more is at stake in a criminal prosecution than in a private civil lawsuit. Let’s now draw an important distinction between two ways of characterizing criminal law. The first is procedural: Those rules and practices that guide the investigation and adjudication of criminal guilt. These rules such as the right to remain silent and the right to be provided with an attorney are familiar to most people. They’re extremely important and help protect citizens from unjustified state interventions in their lives but they are not the main subject of this lecture.

Two Ways of Characterizing Criminal Law

Procedural

rules and practices that guide the investigation and adjudication of criminal guilt

Substantive

rules that define what is criminal and deserves state blame and punishment

Rather, in the remaining time, we’ll be talking about what is known as the substantive criminal law: Those rules that define what behaviour is criminal and deserves state blame and punishment. These rules are codify by the state and federal legislatures and are then interpreted and applied by courts. In the United States, England, Canada, and other countries originally influenced by English law, we have what is known as a common law legal system. Judicial interpretation is far more important to the development of the law in common law countries than in so-called continental legal systems, and our process is considerably more adversarial. Despite these procedural differences however, the definitions of crimes and defences in common law and continental penal codes are, on the whole, remarkably similar.

Plea Bargains

Disposed by plea agreements

defendant pleads guilty

Saves government time and money

Prosecution agrees to lesser charges or less severe sentence

Most criminal cases in the United States are disposed of by plea agreements, so-called plea bargains, by which the defendant agrees to plead guilty, thus saving the government the time, trouble, and expense of trials. In exchange, the prosecution usually agrees to a lesser charge or recommends a less severe sentence than might have been imposed if the defendant were convicted at trial. Virtually all judges routinely accept such prosecutorial recommendations. In our system, about 98% of federal criminal cases, and about 94% of state cases, are resolved in this way, and thus trials are a rarity compared to peer nations. In the United States, the rules of substantive criminal law are simply the backdrop in the shadow of which the prosecution and defence bargain. Now, let’s talk about justifying state blame and punishment. I have said that criminal law’s special province is the infliction of state blame, stigma, and punishment on wrong doers. Such infliction is intentional and thus raises the immediate question of how the state can justify such harsh treatment. After all, intentional pain infliction morally requires justification if anything does. What goals justify such state action? The most fundamental answers are that, the criminal law aims to do justice by giving wrongdoers what they deserve, and it seeks to control crime in two ways. By deterring would be wrongdoers from committing crimes, and by imprisoning criminals who would be dangerous if they were at large in the community. Let us consider both of these goals, giving people what they deserve and crime control in a bit more detail.

Justifying State Blame and Punishment

Retribution

• “just deserts”
• aims to give people what the deserve
• not revenge

The technical term for the justification for inflicting blame and punishment because the defender deserves it is retribution, which is also known as just deserts. Retribution is a theory of justice that aims to give people what they deserve. It should not be confused with imposing revenge, which is a common psychological desire when people have been wronged but that is not a justification of punishment. According to a retributive theory of justice, it is simply right in itself to give people what they deserve. Retribution is therefore, no different from similar theories of justice in property law, in which people are thought to deserve fair compensation for the fruits of their labour. Or contracts, in which people deserve compensation if others break their promises. In general, in the United States we believe that no one should be pun, blamed and punished criminally unless they deserved it. It would this be unfair and unjustified to convict people known to be innocent, even if doing so increased cri, crime control. We also believe that people should not be punished more than they deserve. Thus, desert is a necessary condition before the state can impose blame and punishment and it sets a limit beyond which punishment would be unjust. Interestingly, there is substantial experimental and other empirical evidence to suggest that most people are strongly disposed to blame and punish those who deserve such treatment, even if the imposition of punishment is costly and seems to produce no other good consequence. The questions raised by this justification of retribution are, when people deserve criminal blame and punishment rather than some other response, and how much blame and punishment is deserved for specific types of criminal conduct. Crime control is a justification that aims directly to produce the good consequence of cost effectively reducing crime. Although crime can be controlled by many means other than the threatened or actual imposition of layman punishment, such imposition may be especially effective because the imposition is so painful. The goal is not to prevent all crime; such a system which is anyway probably a fantasy would be too harsh and intrusive on liberty. The question then is, when the criminal law is the most appropriate means to control behaviour consistent with other values we endorse, such as, the right to liberty, to pursue our projects without undue state interference and the right to be free of blame and punishment unless they are genuinely deserved. Although retributive and crime control goals can be complementary, sometimes they can conflict. For example, we might believe that a criminal defendant’s mental abnormality makes the defendant less blame worthy because the abnormality interferes with his capacity to use his reason. Thus perhaps, the defendant deserves a somewhat lesser sentence than other defendants who committed the same crime but had no mitigating condition. On the other hand, the same abnormality might also make the defendant particularly dangerous, and thus a candidate for even longer than usual sentence. Balancing such goals can be a daunting task, as we shall see when we discuss sentencing later.

Constitutional Law Part Four

Finally, I’ll end this segment by talking for a few minutes about the role of the United States Constitution in the broader world. You’ll recall, from the beginning of this segment that the U.S. constitution is the oldest constitution in the world operating today. It was quite unique when it was framed in 1787. And it has been held up by commentators both in prior centuries and very recently as a model for constitutionalism around the world. To a great extent, this story of influence is accurate, at least in general terms. When the U.S. Constitution was framed in 1787, it was virtually the only written constitution in the world. It was an outlier. And it was viewed as a novel experiment in writing down the rules of the governance. Today, that novel experiment has become the world’s norm. Virtually every country today with only a handful of exceptions has a written constitution, has a Supreme Court which exercises some form of judicial review power. And has a culture of both governmental structure and individual rights that mimic, at least faintly, the American Experiment from two centuries ago. So this is in, in one very broad, very general sense, a triumphant story of influence, of written constitutionalism and strong form judicial review around the world. But, nothing’s that simple. When we look more carefully at the constitutions in other countries around the world we can see the influence of the basic written model, but we see a number of design choices that these other countries have made. Particularly, those countries that have written constitutions within the last 50 or 60 or 70 years that take their constitutions in very different directions than the U.S. model. So, although the U.S. Constitution has been tremendously influential in the general, broad sense in promote, promoting a regime around the world of written constitutionalism. The actual choices other countries have made, have diverged dramatically from the U.S., leaving the U.S. Constitution still quite unique in some ways I’ll discuss now. First, as I alluded to earlier, the U.S. Constitution remains one of the most difficult to amend the text in the world requiring three-quarters of the subordinate units, the states, to agree to anything in order to make textual amendment. This in turn means the U.S. Constitution is largely frozen as it’s written with only sporadic episodes of amendment over the past 200 years. And that again requires interpreters like Supreme Court justices to deal with the fact that the text stays the same even if societal attitudes toward that text have changed dramatically. In many other countries, it’s easier, to amend the constitution, which leads to more textual change which, in turn, might reduce the frequency or need for strong form judicial interpretation, to change constitutional norms. Second, although the US is not alone in being a federal system, recall what I said about power being divided between the national government and a number of subunits called here the states. There are clearly other federations in the world, and many other countries have a national government and some subordinate units, be they states or provinces or other units. The U.S. is perhaps unique, though, in the disproportionate weight it gives to the states, no matter what the population is. As I said before, Wyoming has the same amount of votes in the Senate as California, despite having only a fraction of its population. Most other legislatures in countries that are federations, and give representation to the sub units, like states or provinces, make some effort, at least, to equalize for, for population. So many scholars think that this is an anachronistic, maybe even problematic feature of the US Constitution, and no country has copied it quite as dramatically. Third, although virtually all national constitutions protect a broad swath of individual rights, or at least say they do. Very few give the strong protection to, gun ownership rights, or religious freedom, or even the broad freedom of speech and particularly commercial speech that the U.S. constitution does. So when we look at what other countries are doing to copy in a sense the American Bill of Rights and individual rights protection, a lot of them are copying and editing in the sense that they don’t put the second amendment in it. And they don’t protect speech in the same ultra robust way that we do. They certainly, most other countries would not protect corporate speech in the way that the US Supreme Court has in, in recent decades.

Distinctive Peculiarity of U.S. Model

• Difficulty in amending
• Disproportionate (re population) devolution
• Super-strong protection of speech, religion and gun ownership rights
• Judicial supremacy and life tenure
• Judicial aloofness to other high courts

And these are values which, of course, we debate in the American context. For the rest of the world they would just as soon form their constitutional order without some of these elements that we think are very fundamental next, while every country that sets up a new constitution attempts to do something, or at least says they do, about judicial independence. About creating a court system where judges are free to make decisions without concern for being fired or thrown in jail in, in the extreme case. Almost no country writing constitutions recently choose to give judges life tenure like we do at least not Supreme Court judges. Most other countries Supreme Courts have judges sit for eight years or ten years or even 15 years. But they’re unwilling to say that a judge gets his or her seat, as long as they keep drawing breath on this Earth. And, many scholars, even of the US Supreme Court, looking at the super long tenure sometimes more than 30 or 35 years of some American Supreme Court justices have said that this may be, a part of our Constitution that we might reconsider if we could. Now of course it’s so difficult to amend I don’t anticipate that. Perhaps because of the age of the U.S. Supreme Court and the age of the U.S. Constitution, our Supreme Court is still very shy and very reluctant to support other, support and cite, other Supreme courts around the world, considering similar structural or individual rights cases. Many other high courts look to their neighbors or look around the world to colleagues and attempt to get some judicial guidance. Many justices on the U.S. Supreme Court have asserted fairly categorically, that that kind of judicial looking around is, is impermissible, and we’re, in that sense they’re somewhat unique. Perhaps even more importantly for the lives of individual citizens, although the U.S. protects lots of individual rights against government action, what we might call negative rights, or negative liberties. The ability to say to the government you may not throw me in jail for giving this speech. You may not throw me in jail for making these sexual or reproductive choices. Those are called negative liberties. The U.S. Constitution by and large does not protect positive entitlements, positive freedoms: the right to health care, the right to housing, the right to education.

Distinctive Peculiarity of U.S. Model

Absence of positive rights protection in either text or doctrine (e.g. Roe and Maher)

Irony: the triumph or writtenness has produced multiple models – many countries following other, newer options.

 And many other national constitutions do, so the U.S. is an outlier in the strong dichotomy that it draws in its constitution and the court’s interpretation between negative liberties against government tyranny and affirmative rights to inputs into one’s good life. This is vividly explained in the abortion cases where famously Roe v Wade gives a certain limited right to women to choose to have an abortion at certain periods of the pregnancy. But in other case, less well known Maher v Roe says quite clearly a poor woman can’t access government funding to effectuate the abortion right. So there’s an, there’s a right to say to, to say no to government intrusion. There’s no right in the U.S. context, to government financial support for that decision. And many countries would find that dichotomy very incongruous; to give a right, but not to give the financial means to effectuate it. As all of this shows the U.S. Constitution is tremendously influential around the world. But, its influence was more in generating this culture of written constitutionalism rather than in specifying the exact content of the new constitutions that have emerged in most countries over the last half century. And here there’s a certain irony, is the very fact that the U.S. Constitution was so important and so old, kind of made it like an original model of a vehicle or something, where newer designers have taken things in very different directions. So, this boast confirms the influence of the U.S. Constitution in our world. But also shows that there are other choices that other nations have made that we might consider even in our own constitutional order about whether there are, there are better design features that we might think about going forward. I’ll conclude in the way I started, namely by focusing on the, the greatest founding father of the Constitution, James Madison. Madison said, what is government itself but the greatest of all reflections on human nature? And this fits with several themes I’ve tried to bring out in this segment. Over 200 years ago Madison and his colleagues met in Philadelphia a few miles from where I stand here.

Last word from Madison

James Madison

(1751 – 1836)

“What is government itself, but the greatest of all reflections on human nature?”

To produce a canonical text that’s remarkable in its innovation, remarkable in its brevity. And remarkable in the number of subjects it tried to cover in relatively few words. But the framers, as evidenced by Madison’s quote here, weren’t disconnected from the realities of we the people, a phrase they put right there in the constitution. They realized that this text they wrote was not going to interpret itself; it doesn’t give easy answers to the questions that it raises. It doesn’t contain definitions; it doesn’t contain a detailed user’s guide. And the constitutional law, and constitutional culture that we have today, reflects the text that they worked on two centuries ago, but it also reflects the intervening generations and most importantly, the present generation’s interpretation and life and values that we infuse with the Constitution. The Constitution is not living, but we are, and that’s an imperative that ought to guide our interpretation.

Constitutional Law Part Three

This next part addresses a part of the Constitution that many people think of first and foremost when they think about the American Constitution and the protections that it affords. And here I’m talking about individual rights. Rights such as freedom of speech, freedom of religion, the right to be free of discrimination based on race the protections that one has as a criminal defendant. These are the rights which many people associate most predominantly with constitutionalism and constitutional protection and they are a part of the American constitutional order that was there almost from the beginning, but has developed in dramatic fashion over the past 50 or 60 years. The regime we have today for protecting individual rights looks dramatically different than it did 100 years ago, and certainly dramatically different than it did 200 years ago. This is a subject which can, and in, at many law schools does occupy an entire semester long course but here, rather than focus on specific individual rights, I want to draw together and emphasize some general themes that I think, situate the individual rights jurisprudence of the American Constitutional order within the longer textual and historical tradition that I’ve been talking about during this segment. And I can focus on a few major points along this line. First, as I’ve alluded to before, the text of the constitution vis a vis individual rights, just like it is in other sections is remarkably sparse and undefined and, the mere words on the page don’t do the work in protecting individual rights that our constitutional culture has come to want them to do, and I’ll offer some examples here. Second this is an area where we’ve seen dramatic changes over time in the national enforcement of individual rights guarantees. Our constitutional world is fundamentally different today that it was a century ago and changing even year by year, decade, decade by decade in some ways I’ll discuss. Third, I want to address two fundamental general doctrinal innovations that the Supreme Court has operationalized over the past century in building the Constitution of individual rights that we have today. The first of these is the concept of incorporation, the idea that rights which as written in the document’s text apply and constrain only the national government, have been made applicable and universalized within the American constitutional order to bind all government actors, national, state and local. Next, another general doctrinal device which is quite important is the concept of balancing, or a nuanced standard of review, that the justices apply in particular cases across a wide range of individual rights areas: race discrimination, sex discrimination, religious freedom of expression. And here, the basic notion is that no individual right is absolute. In the, in our constitutional discourse the claims of individual rights holders are and must be balanced against compelling claims by society at large for a different result. And this in, to a large, great extent, is the project of American constitutional law in the individual rights space. It is the specification of which rights are worthy of special protection that, there, then, that therefore, demand especially good or compelling reasons from the government in order to affect those rights. And its this shifting denomination of which rights are important enough to, to demand particularly good reasons from the government that is a large part of what the judges have done in, in construing the Constitution over the past half century or more.

The Constitution and Individual Rights

• Inadequacy of text alone
• Dramatic changes over time (specification and enforcement)
• Two crucial, and generalized, doctrinal innovations:
• Incorporation
• Balancing (standards of review)
• Influence of Public opinion about rights

Fourth, I’ll briefly address what’s evident when one considers the development of individual rights doctrines over the past several decades, the somewhat permeable boundaries between formal constitutional doctrine and public opinion about those rights. Simply put, as society decides that protecting a given interest is relatively more important, we would expect to see and we do see doctrinal shifts in the judicial protection, the constitutional protection for these rights. Nowhere is this more evident than in the dramatic change in the manner in which the courts protect rights for certain same-sex individuals, or even individuals to engage in same-sex relationships, and I’ll speak for a few minutes about that. finally, as important as the Supreme Court has been and still is in protecting individual rights, there are those who wonder, and, and a question that’s worth posing is, is the court too powerful or too supreme in this area? A question to consider is whether our rights would be even more firmly grounded if we asked and expected legislatures, executive officials, police departments, and other institutional actors to take seriously these rights, instead of leaving them for judicial resolution. I’ll address all of these briefly in turn. First, let me turn to the concept of how inadequate text is sitting on the page alone and here I’m going to use two textual guarantees of rights. The first here, Congress shall make no law abridging the freedom of speech, or the press; or the right of people peaceably to assemble, and to petition the government for a redress of grievances may be familiar to some of you if you’ve read the US Constitution. This comes right out of the First Amendment of our Constitution.

Inadequacy of Textual Guarantees, Part One

A: “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for the redress of grievances.”

B: “Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association.”

 Now the second clause here looks good, as well. Citizens are guaranteed freedom of speech, of the press, of assembly, demonstration and association. This seems to protect the same freedoms, indeed it was likely modeled, on the United States First Amendment as it came afterwards. The second clause I read, labeled as B on the slide, actually comes from the North Korea constitution, where we know that despite these paper protections, citizens dramatically do not have the same protections as they do elsewhere. And this is a vivid and perhaps almost too extreme example of the disconnect between mere words on a page and the institutional and cultural protection of those rights. If the North Korea example seems extreme, I’ll turn to a more accurate historical example from our own constitutional development. This text comes from our own Constitution, the 14th amendment; we call this the equal protection clause. No state shall deny to any person within its jurisdiction the equal protection of the laws.

Inadequacy of Textual Guarantees, Part Two

“No state shall… deny to any person within its jurisdiction the equal protection of the laws.”

Amendment XIV

Today is on, one of the most fundamental personal protections against government discrimination and it forms a core fabric of our Constitutional rights. This amendment was enacted in the immediate aftermath of the Civil War, in the late 1860s and so it has been on the books for almost 150 years as the Constitutional law of the land of the United States. Now, as our history shows, for the majority of this amendment’s life, these words were as unenforced as the words of the North Korean Constitution I showed you a few minutes ago. These words were on our books through a period in the early, late 19th century and early 20th century of brutal oppression and Jim Crow segregation in the South and, dramatic discrimination against African Americans throughout the entire country. As these examples illustrate, words on the page by themselves, are inadequate protections of personal freedoms. What is needed is a more thick institutional culture of enforcement and acceptance, to operationalize those words. To illustrate this point further I’ll use the words of Dr. Martin Luther King Jr., very early in his life actually as a high school student when he gave an award winning speech precisely on this issue of the empty promise of amendments on the pages of the Constitution without more effective enforcement.

Martin Luther King, Jr.,

“The Negro and the Constitution” (1943)

“America gave its full pledge of freedom seventy-five years ago…The new order was backed by amendments to the national constitution making it the fundamental law that thenceforth there should be no discrimination anywhere in the ‘land of the free’ on account of race, colour or previous condition of servitude.”

King said America gave its full pledge of freedom 75 years ago and backed it with amendments to the national constitution where there should no discrimination based on race or other criteria. But as King notes, Black America, in his, in, on this writing, Black America still wears chains.

Martin Luther King, Jr.,

“The Negro and the Constitution” (1943)

“Black America still wears chains… Today thirteen million black sons and daughters of our forefathers continue the fight for the translation of the 13th, 14th, and 15th amendments from writing on the printed page to an actuality.”

Thirteen million black sons and daughters of our forefathers continue to fight for the translation of the thirteenth, fourteenth, and fifteenth amendments from writing on the printed page to actuality. It’s this notion of translation that has been a theme of this segment whether it is in the separation of powers area or this individual rights area. The words on the page don’t interpret themselves and they certainly don’t enforce themselves. That requires an ongoing and evolving societal commitment. And this is what King both was writing about in the 1940s and then participated in transforming and translating the meaning of the fourteenth amendment into actual legislation and actual court decisions, through the remainder of his life. I’ll now address two specific doctrinal areas where the Supreme Court has constructed interpretive techniques and doctrines to engage in this project of translation, that Dr. King spoke about. Without going into specific areas like freedom of speech, or freedom of religion, or criminal protections for criminal defendants, I’m focusing on two general points that apply broadly across the landscape of individual rights in the American Constitutional context.

Two General Devices for Translation

Incorporation

Key provisions of federal Bill of Right made applicable to state governments (1925-1960s)

Crucial across constitutional law, including criminal procedure

Standards of Review and Levels of Scrutiny

Increased judicial skepticism/scrutiny of government justifications that made certain distinctions or burdened certain practices – judges demand better than merely “rational” justification.

Important for EPC, DPC, first amendment among others

The first of these is this idea of incorporation. Incorporation is what the Supreme Court did from the 1925, the 1920s through the 1960s in order to universalize many of the most important individual rights protections in our constitutional order. If you look at the Constitution’s text, and here’s an example of the first amendment it quite clearly says, Congress shall pass no law affecting freedom of speech, press, etc. now, if one reads this literally, one would think that only federal statutes must comply with First Amendment scrutiny, that, say, state laws or local police enforcement could transgress religious freedoms protection or throw people in jail for writing something in the media, and indeed, if one reads the text absolutely literally, it applies only to the National Congress. But of course, that’s not the way we’ve read it or understand it in our society and have not read it that way for almost a century. And this relates to the notion of incorporation. What the Supreme Court did starting in the early 20th century, was take cert-, certain basic guarantees, like the First Amendment, which, by its terms, appears to apply only to Congress and incorporate, or fold that into our concept of due process of law, which through the 14th Amendment, applies to all governments, state, local, and as well as national. And the Supreme Court did this for many, indeed most of the core individual rights protections that we hold dear that protect defendants in criminal trials, that protect freedom of religion, that protect our freedom of speech and association.

Tiers of Scrutiny: The tests

• Rational basis: the government has any decent reason for drawing a certain distinction
• Strict scrutiny government must have an especially good or compelling reason for drawing a certain distinction
• Intermediate scrutiny in between

Tiers of Scrutiny: when they apply

• Rational basis: most government actions
• Strict scrutiny when the government is doing something in potentially in conflict with the Constitution. For example, drawing a distinction based on race.
• Intermediate scrutiny: the Court has declared this is the test for when the government draws distinctions based on sex

And then the Supreme Court likewise universalized the Equal Protection clause, which by its terms is written only to govern states, and said that the national government likewise has to abide by the core anti-discrimination principles of the Equal Protection clause. So what the Court did through its process of incorporation that took place over the better part of the half of the 20th century was to universalize and operationalize the core individual rights guarantees in the constitution which again, by the text alone, would have seemed to apply only to certain governments and not others. Today, the individual protections that are most important to Americans apply as against all levels of government, national, state, or local. And the core, the basic core of individual rights guaranteed in the Constitution applies equally across the nation and, and doesn’t vary, at least in terms of the National Constitution, from state to state. So this was a key judicial move that was unforeseen by the framers, but that has done, a great deal to operationalize the culture of individual rights that we have today. The other core judicial innovation that I want to emphasize in that it spans a wide swath of individual rights doctrines is the way in which the court, particularly in the late 20th century through today, has articulated different levels of scrutiny and different levels of balancing individual rights against other interests. One of things, one of the things that’s clear when one thinks about individual rights is that no matter how important a given individual right is that right becomes problematic when it is applied in an absolute sense to an extreme at the expense of all other rights or all other public values. We live in a complex world where often there are difficult and fundamental trade-offs between, for instance the widely held desire for privacy in our personal communications and the equally widely held desire for national security and defense against threats that demand a certain tradeoff. We value freedom of religion deeply, but we also realize that there are certain commitments and behaviors that we need to regulate universally in society and not allow religious exemption. This fundamental tension is generates much of the debates in, about individual rights in our in our legal culture. And in response justices on the Supreme Court over the past half century or more have articulated a set of doctrines which apply broadly across individual rights that attempt to balance these different competing considerations. And we think of these as levels of scrutiny. The basic principle is that most of the things government wants to do, it can justify against lawsuits if it can articulate a merely rational basis. Essentially, as long as it can give any decent reason it can justify a distinction it makes. So for instance the government in its tax code draws lots of distinctions between how certain things are taxed or different levels of tax that some people pay as opposed to another. Clearly it creates inequality. But that inequality is not, according to judges and others who participate in constitutional interpretation, is not the kind of equality that we ought to care deeply about, and to say we care deeply about in a doctrinal sense, is to say we give certain problematic dimensions of inequality, we give them strict scrutiny. What strict scrutiny means is, and an example would be, when the government treats people of different races differently, we are going to apply the strictest possible scrutiny, given the problematic history of racial differentiation. It doesn’t mean the government can never differentiate on race, it just means that the government better have an especially good, or compelling, reason for doing so. This debate became overt and becomes overt whenever the Supreme Court takes a case about affirmative action in education, as it did mo, most substantively over a decade ago in the Grutter versus University of Michigan case. And in that case the court upheld the, the University of Michigan Law School’s use of race in law school admissions, but only because the law school made a compelling case that governmental consideration of race in admissions was necessary to build the kind of law school class to, that produced the optimal learning environments and that produced the kind of graduates that employers and, and other elements of society wanted. But, the only way that race, could be considered in that case, was due a particularly compelling justification, given by the university. This kind of tradeoff, this kind of balancing, applies broadly, across a number of different individual rights doctrine, and it’s something that’s been constructed by the judges over time, in order to mediate this difficult balance that I’ve been talking about. Not only does the balance mediated between these competing considerations, but the way we weigh different interests, the way we kind of do this judicial balancing, quite clearly changes over time, in response to changes in public attitudes. This judicial balancing, this use of the tools of different levels of scrutiny has been with us so, for some time. But equally clearly, the way judges strike the balance, the particular weights they put in the scale in particular cases also change over time as some interests gain in importance. Others wane in importance and this gives a certain dynamism to constitutional interpretation, where some interests which even in very recent memory were disregarded suddenly become more important. Thurgood Marshall who himself as a attorney arguing before the Supreme Court in the 1940s and 50s helped shape our changing constitutional understanding of race discrimination, then gave voice to this when he himself was a justice on the Supreme Court. As in Marshall’s words here, the spectrum of interests clearly shows variations in the degree of care with which the court scrutinizes classifications. And here I think it’s important what Justice Marshall says.

Interaction with Shifting Public Norms

“A principled reading of what this Curt has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. The spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis on which the particular classification is drawn.”

Justice Thurgood Marshall (Craig v. Boren)

The way the court strikes this balance depends, in his words, on the constitutional and societal importance of the interest adversely affected. Simply put these constitutional doctrines about individual rights have a certain judicial structure but they are not entirely apart from the social structure of the broader American community, and the values and weights that America puts on given interests. Nowhere is Justice Marshall’s sentiment more evident in recent years than in the dramatically shifting doctrine that the Supreme Court has articulated involving the constitutional, constitutional protections of same-sex relationships. As recently as 1985, in the case called Bowers versus Hardwick, a majority of the Supreme Court upheld making it a crime for two consenting same sex adults to engage in sexual relations. Less than two decades after Bowers, in 2003 in a case called Lawrence versus Texas, the Supreme Court considered, considered and explicitly rejected Its ruling in Bowers on the permissibility of criminalizing same-sex consenting adult relationships. In Lawrence, Justice Kennedy writing for the court declared the right to choose one’s own intimate partner as sacred and undeniable and, wrote an opinion which explicitly overruled the court’s prior precedent from only 18 years before. This is a modality we’ve seen on other occasions through Constitution, Constitutional history, of course the Plessy versus Fergon, Ferguson decision from the 1890s was overturned in Brown versus Board of Education in 1954. And in many other areas, but rarely so rapidly as in the area of the permissibility of same-sex consenting adult relationships, and the speed with which the court overturned its Bowers precedent corresponds with an equally quick shift in public attitudes on the acceptance of same sex relationships, which is today translating into rapidly changing legal norms and constitutional norms in the area of same sex marriage. This is an area that we’re more vividly than most, and more rapidly than most, but just as assuredly in other areas we see that the legal work that the court does is not inherently sealed or divorced from the public opinion in the broader society. And this is one of the engines that generates constitutional change. It’s not that the constitution is living, but we the people are living. And our changing attitudes clearly inflect and ultimately affect the way that the Court interprets this document. Finally, after all of this discussion of the Supreme Court and its important role in protecting individual rights, it’s important to remember as the framers did that all involved in government and society have some role in protecting these basic individual guarantees. Indeed a society that relies exclusively on a group of unelected judges as the sole guarantors of individual rights is risking those rights diminishing in dramatic ways. This is particularly true in areas where individual understandings of rights, such as privacy, are under increasing pressure, and very rapidly so today through technological change that the law struggles to keep pace with. In such areas, rights protection will be most effective if the, the more responsive branches of government like the executive branch agencies and the legislature itself are in the forefront of protecting these rights. And sometimes even the justices themselves recognize this, that they are not the best Institution to stand as a bulwark against these rapid technological changes.

Is Judicial Rights-Protection Optimal?

“The Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significat changes in popular attitudes… In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.’’

Justice Alito, U.S. v. Jones (2012)

Justice Alito in the recent, Fourth Amendment case US versus Jones which involved whether a continuous GPS surveillance device attached to a car for many days created a Fourth Amendment violation expressed this notion of institutional competency in the language you see here. For Alito at least, the best solution to privacy concerns may be legislative. And Alito’s views are shared by his others on and off the bench, particularly, in areas like this. We’ve seen it also in the, in areas such as race discrimination where Brown versus Board of Education in 1954 was an iconic and important Supreme Court decision in outlawing segregated schools. But, for the lives of minority individuals in the United States, much greater gains came a decade later with the Civil Rights Act in 1964, a congressional statute, which because backed with the full enforcement apparatus of the federal executive branch, worked much greater change in people’s lives than the Brown versus Board of Education decision coming from the Supreme Court. So this is the last theme to remember as we talk about the importance of individual rights. The importance of the court in translating and enforcing those rights is that as much as the Court does, we cannot ask the Court to do everything in protecting these rights, and it’s important for any Constitutional culture to remember the role of other branches and the public itself in operationalizing and giving shape to these foundational individual guarantees.

Constitutional Law Part Two

Let me turn next to the next part of this segment which deals with the structural provisions of the constitution. How the government is set up and structured. When the framers met here in Philadelphia in 1787, they were primarily concerned with this part of constitutional ordering. Bear in mind, they had just split away from a government which they thought was terribly structured, giving far too much power to the whims of a given monarch. And in setting up the new American constitution, in light of the failures of the Articles of Confederation, it was important for the framers to get it right and give the right kinds of power and the right amounts of power to different parts of government. Here we turn once again to the views of James Madison, and the most important of the framers who was a student of governmental structure and proper allocation of authority, and thought quite a great deal and wrote a great deal about the best way to structure government. And he acknowledged a basic challenge which I’ve alluded to before. First the framers sought to give the government enough power to control the governed, but then structure it in such a way as to use Madison’s phrase, oblige it to control itself. For Madison the solution to this dilemma, sought in, actually, lay in the basic ambition of the men and, today, men and women who occupy spots in our government. Recognizing, then, as now, that the inherent ambition of people, who would seek places in government. Madison and the other framers sought to build a government where this ambition was a built in feature and one that would perhaps solve the problem of too much ambition in one place.

Madison’s View of Government Structure

Federalist 51:

“You must first enable the government to control the governed; and in the next place oblige it to control itself.”

“Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.”

So as Madison said, ambition must be made to counteract ambition. The interest of man must be connected with the constitutional rights of the place. For Madison this meant that the best solution for structuring government was dividing power and creating incentives for one branch of government to counteract the other. We call this separation of powers or checks and balances. And the framers cared so much about this that they didn’t just do it on one dimension. But they did it on two dimensions. And here what we mean is when we talk about separation of powers in the federal government we often use the phrase horizontal separation of powers. Splitting the government into three branches, executive, legislative and judicial, and giving each one of them certain powers and more importantly propose this theory of behaviour that Madison advances giving each branch the incentives to counteract and be somewhat jealous of the other branch’s power. But, the framers didn’t just divide constitutional, our constitutional order that way, they also did it on, what we would call, a vertical dimension, namely, dividing power between the National Government and the various state governments. This is a principle we call federalism and it is very important even today, as certain things are certain important policy choices are situated with the states, even as many important policy objectives have come to be viewed as national government prerogatives. And it’s on these two dimensions, the horizontal separation of powers within the federal government and the vertical separation of powers between the states and the federal government where our greatest debates over governmental structure continue to reverberate in the Supreme Court and in the broader public policy debates. James Madison’s fundamental insight that power was more safely reposed in government when it was broken up into smaller chunks and given to different branches or even different governments as between the national and the state government is one that remains important today even as we debate the precise boundaries of those divisions. For the modern Supreme Court it has been important particularly in the last few decades. Justice Kennedy in a representative statement in a case called U.S. Term Limits versus Thornton called Federalism Our Nations’ Own Discovery. And he talked about the framers splitting the atom of sovereignty as a genius idea. Giving our citizens two political capacities, one state and one federal, each protected from incursion by the other.

US Term Limits v. Thornton (1995)

“Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, obe state and one federal, each protected from incursion by the other.”

Justice Kennedy, concurring.

Now Justice Kennedy’s statement may be a somewhat idealized version of our federal order. In reality, many, perhaps most public policy issues are, are shared between the state and federal governments, who cooperate, or conflict or wrangle over the proper sphere of authority. But still, for many citizens and many judges, and many policy makers. This question of where we allocate authority in our constitutional system remains crucially important and as hotly debated today as it was over 200 years ago in Philadelphia. Now the way that the Supreme Court and others have operationalized these broad general principles about separation of powers, is through the development of specific doctrines in particular cases. Recall what I said earlier that the basic framework parts of the constitution don’t come with definition clauses or users guides. It has been the task of subsequent generations over the past 200 years to give content to these broad general principles, like executive power, legislative power, judicial power, or the broad principles that there ought to be some separation between the states and the national government. And the way the Supreme Court has done so is, over the past 200 years, to very gradually, very incrementally craft different doctrines that go to both separations of powers on the horizontal level and the vertical level, the so called federalism doctrines. It’s useful to divide this general concept of separation of powers into three basic areas of doctrine and analysis the first of two of which deal with relationships between the state and the federal government.

Three Major Areas of Structural Doctrine

1. Principles meant to control state misbehavior (“dormant” commerce clause, P & I, full faith and credit, preemption, supremacy clause)

2. Principles meant to control federal overreaching relative to state authority (commerce clause, 10^th amendment, 11^th amendment)

3. Principles relating to horizontal division of powers among the federal coordinate branches – note the increasing problem of executive authority

The third deals with the, what we call the horizontal relationship across the federal government. So first the Supreme Court has applied the Constitution over the past two centuries in ways to control the states and limit state behaviour, or even misbehaviour. Second, and increasingly in recent decades, the Supreme Court has applied Federalism doctrines to restrain the Federal Government as against the States, to say that there are some spheres where the Federal Government can’t legislate, no matter how powerful it may claim to be. And finally, there’s another set of doctrines that are continuously under development and debate that attempt to create limits between the different branches of the federal government. And occasionally the Supreme Court will address cases that ask the question, is the president exercising too much power.

Dormant Commerce Clause:

The commerce Clause of the Constitution gives Congress the power “to regulate commerce among foreign nations and among the several states.” The Supreme Court holds that there is also implied a “dormant commerce clause” that prohibits individual states from regulating commerce affecting other states. Only Congress has this power.

 Has Congress overstepped its bound in, in this case? I’ll speak to all of these doctrines in the next few minutes. But I want to highlight yet another debate in this area, which is the question of who should decide these major separation of powers questions. To be sure, the Supreme Court has asserted that it has the right to decide these fundamental questions of governmental structure just as it does other questions of law and other questions of individual rights protection. But there is a long scholarly tradition rooted in constitutional history that suggests that these basic structural choices about the constitution ought to be what we call non justifiable. In other words, decided outside the courts by the major political branches of American government. After all, remember James Madison’s phrase ambition must be made to counteract ambition. For Madison at least, the government is already properly structured, so that if the President overreaches, Congress ought to step in and reign in Presidential power. Conversely, if Congress is exceeding its authority, perhaps the President will refuse to enforce that statute. And there’s a real question about whether the Supreme Court needs to referee all these disputes. On the other hand, developments that Madison and his colleagues never could have foreseen have complicated the separations of powers mix on all of these dimensions, and perhaps given rise for stronger arguments for judicial supervision. For instance, the framers for all of their wisdom never anticipated modern political parties and the modern two party state. And the implications that the two party system would have for separation of powers. When the same party controls both Congress and the White House the assumption that ambition will counteract ambition and Congress will reign in the President, falls apart in a world of strong party discipline. Likewise, the framers never foresaw the dramatic rise and the size and scope of the federal Executive branch that has taken place over the past century. In the early days of the Republic, the federal government had only a few thousand, non-military employees. Today the federal government has over a million such employees. Growth of the federal government over that phase has, some would argue fundamentally tipped the power of the presidency relative to the other branches. These are questions that are still debated, and that I’ll return to in a few minutes. Now let me go somewhat more systematically through these different areas of doctrine. The first area where federalism doctrines have been applied by the Supreme Court and are b, baked into the constitution deal with controlling state behaviour or even state misbehaviour. Indeed, were we to travel back in time to 1787 and asked the framers what they worried most about. They would not have worried about an overreaching federal government. After all, recall how weak the federal government was under the Articles of the Confederation. What they worried about, and the reason they came back to Philadelphia in 1789, was that states were behaving badly. States were printing their own money to let their own debtors off the hook. They were couldn’t agree on state boundaries. They couldn’t agree on foreign policy, or policy toward the Native American tribes. Each state was going in its own direction. States were enacting internal tariffs and trade barriers, of the sort that today we see between nation states. But this used to happen between Pennsylvania and New Jersey. The Framers regarded this as no way to run a proper country. And so one of the first things the constitution did was prohibit and provide doctrinal grounds for courts to prohibit states from engaging in this kind of individualistic behaviour. A later justice, an important justice from mid 20th century Justice Robert Jackson said that these clauses taken together were to declare something he called a Federal Free Trade Zone. So if you imagine efforts such as our undergoing these days in Europe to create a, to, to trans, transform what used to be individual markets into a national free trade zone, that was a major impulse of the early days of the Constitution, and largely successfully enforced by the Supreme Court over the last two centuries. Such that these debates occur, but occur much more, much less frequently than they would have in the early days of the Republic. Modern debates over the scope of federal government authority often grapple with the fundamental tension and inconsistency that’s built into the Constitution. On the one hand the baseline rule in the Constitution is that power resides with the states and the people, and the national government only has those powers that the document. And interpretations of the document affirmatively give to the national government. This is called the doctrine of enumerated powers. And it is often invoked by people who say that the federal government is over-reaching its authority, because it can’t point to a certain enumerated power. On the other hand, some of the enumerated powers themselves are extremely broad and extremely vague. The most important of these is the Commerce Clause which gives the national government the authority to regulate commerce among the several states. And today the Commerce Clause stands as the foundation of much national government authority. Now the meaning of this clause typically is not defined in the Constitution, and has been contested heatedly over the past two centuries, indeed over the past few decades, in the context of major statutory enactments like the Affordable Care Act. It’s possible to think about the Congress clause and the history of its development in four main historical epochs, and I’ll summarize these briefly here. First, for much of the first hundred years of the constitution’s life, until about the 1870s or 1880s Commerce Clause cases were few and far between, precisely because the National Government didn’t do that much. In a series of decisions, in this period, that might surprise modern observers.

Commerce Clause

Until the 1870s or 1880s

• Commerce Clause cases few and far between
• Supreme Court took a very narrow formalistic definition of the Commerce Clause

The Supreme Court took a very narrow and formalistic definition of the Commerce Clause, and, issued decisions saying things like manufacturing in a major sugar plant was not commerce and therefore that company was not subject to basic anti trust laws. Or even more strikingly a factory that employed child workers was not engaged in commerce. Therefore the National government had no basic, no authority to issue basic child labour legislation. This was a constitutional regime, which seems anachronistic to us, and indeed it proved unsustainable, even in a much earlier date, namely in the New Deal in the 1930s and the 1940s. After the Supreme Court struck down some of President Franklin Roosevelt’s most popular and important recovery initiatives President Roosevelt capitalizing on public dissatisfaction with a court that seemed to be stuck in the past proposed what would have been a radical solution, namely adding more justices to the Supreme Court in order to reverse those rulings. Perhaps sensing the public outcry against its decisions and wanting to avoid the constitutionally problematic strong arming from President Roosevelt, the Supreme Court, by the middle of the New Deal reversed its prior narrow interpretation of the commerce clause and adopted something much more familiar to the doctrine we have today from the court.

Commerce Clause

New Deal in the 1930s and 1940s

• Supreme Court revered its narrow interpretation
• Commerce is defined pretty broadly to include any activity that affects the national economy, economic impact

Namely, that commerce is defined pretty broadly to include any activity that affects the national economy, however small, so long as if taken in its totality in an aggregate sense it has an economic impact. So this is the law today and indeed the law from, from about The New Deal Era, up until the time I was in law school in the mid 1990s. Was that congress could do pretty much what ever it wanted under the commerce close. There wasn’t any real enforcement of federalism limitations in this area. We are now in a different era, with a more aggressive, robust Supreme Court, where at least five justices on the current Court maintain that there are limits to national government power and that the Court ought to enforce those limits.

Commerce Clause

New Era Today

There are limits to national government power and the Court ought to enforce those limits

 And we saw such a case just two years ago with the major Affordable Care Act case of 2012, where a slim majority of the Court felt that a key part of that statute, the individual mandate, was beyond the Federal Government’s authority on commerce clause grounds, because it sought to legislate in the Court’s view people who weren’t doing anything but sitting around. And indeed the entire validity of the Affordable Care Act was only upheld on a different ground the so-called taxing power. Because the burden or the penalty that falls on people who didn’t pay the individual mandate is operational as through their tax returns.

The Supreme Court that the Affordable Care Act could not be upheld based on the Commerce Clause because what the Act was doing – asking people to buy health insurance – did not really affect interstate commerce. The Act could be upheld as an exercise of Congress’s taxing power.

So we’re in an era now where federal government authority is vast but the Supreme Court assertively maintains its prerogative to enforce that. There are many scholars and many in the policy world who feel that these kind of federalism restrictions to control federal government overreaching are important but ought not to be enforced by the Supreme Court. Indeed keep in mind the structural provisions that are built into the so-called political branches that are built into Congress itself, and the argument goes includes plenty of protections for the states. Each state gets two votes in the Senate. No matter how big or how small. So that a state like Wyoming has as much representation on a state-by-state basis as a state like California despite vast discrepancies in population. For many observers, this suggests that state interests are fully protected in the actual voting procedures and political process in Congress, and that the Supreme Court ought not get involved, in policing this boundary. It ought to stick to protecting individual rights and standing up for the rights of entities and individuals who don’t have a voice in the political process, whereas states do have such a voice. But clearly, as a statement of current constitutional law, the Supreme Court has come out strongly in the other direction, saying that it can and will enforce these federalism restrictions. I’ll now speak about a different element of separation of powers. Now, in here we’re talking about the horizontal separation of powers between the different branches of the national government. This is the area where both today and historically Supreme Court doctrine has been least helpful. I think precisely because the fundamental definitions of these different branches are so unspecified. Legislative power, executive power, judicial powers are undefined in the Constitution. And the precise contours and, and boundaries of those concepts have become evermore muddled as the government has grown, and changed, and become more complicated. For instance, take an agency like the Food and Drug Agency, which regulates the safety of food and therapeutic products,. The FDA is an executive branch agency. We know it is within the executive branch but if we look at its functions it does some things that look like executive enforcing of the laws. It had the authority to inspect and enforce rules, say, against pharmaceutical manufacturers. But some of what it does looks a lot more like a legislature. Like many agencies, the FDA has authority to write rules which are binding and generally applicable and look a lot like statutes. We call them regulations and thus place them in the executive branch, but functionally, that behaviour looks much more legislative. Other agencies have the ability to adjudicate actual cases and disputes. For instance the Social Security Administration has its own judges who hear debates, or hear disputes when somebody claims to be denied the proper amount of benefits exercising very much a judicial function again despite technically being in the executive branch. For this reason, the growth of government in ways that the framers never could have intended have put pressure on these basic definitions inherent in the horizontal separation of powers and confounded easy judicial techniques for drawing bright lines between such branches. Today in this area courts are struggling with issues like national security surveillance by the executive branch the power of the President to wage war in foreign countries despite not formally declaring war and the growth of congressional behaviour and congressional oversight activities which raise questions about congressional overreaching. In these areas, there’s a real question of how much the Supreme Court, or any judges can do, to meaningfully police these boundaries. As I’ve said, the fundamental definitions in the Constitution are so vague and unspecified, between executive, legislative, and judicial power. That, articulating meaningful doctrinal standards to channel and cabin these different types of power have proven over the past two centuries to be largely unworkable. Moreover many of these decisions, such as whether or not to send troops to a foreign country are probably the worse kind of decisions to vest in a group of unelected judges who take a long time to hear cases. And perhaps ought to be worked out more within the political process. Certainly James Madison and the other framers envisioned that Congress and the President would be their own best check on each other. That Congress would check the President when he or she overreaches, and that the President would jack or refuse to enforce or would veto congressional laws that represent where we are reaching. In here I will return to though a problem that the framers never foresaw but that is essential part of our political community today which is the rise of disciplined fairly powerful political parties although, the framers envisioned politics. They didn’t in, view, vision political parties. And, the notion of a strong disciplined party controlling both Congress and the White House, undermines many of the structural protections that Madison and the other framers thought would work to control over-reaching. Simply put, when the President and Congress are of the same party who will rein in an overreaching President if the President indeed is the leader of his, his party? And we’ve seen, seen examples. Whatever political party or persuasion one is, you can think of examples when Republican presidents have seemed to exert dramatic authority unchecked by Congress. And you can think of recent examples of a Democratic presidents have seem to exert unusually robust authority largely unchecked by Congress. This is something the framers never foresaw. And it’s a fundamental feature of our political process which puts pressure. And perhaps stretches to the breaking point, some of the basic allocations of authority in the national government. These are problems for which the court probably doesn’t have a solution and it’s up to the rest of our constitutional culture and other institutions: the public, the president and congress. Perhaps working together going forward to better structure and allocate power. This is not an area where an easy doctrinal solution exists. So to sum up this entire separation of powers discussion, I think we see two very different problems or two very different phenomenons in the Federalism context the debate between state and federal authority and in the horizontal separation of powers, context arrayed across the federal government. When it comes to judicial control of national government authority vis-à-vis the states, the current Supreme Court has been very assertive, very robust and articulated very clear rules. In ways that many think have gone too far in asserting judicial protection. On the other hand, when it comes to presidential authority and overreaching many feel that the court has not done enough to articulate clear meaningful standards to cabin executive power in the 21st century, as it grows in ways that the framers never would have imagined over two centuries ago. So these are the two competing challenges in this area, that the court. And the rest of our constitutional culture we’ll need to address going forward.

Constitutional Law Part One

In this segment I will focus on various features of the US constitution’s distinctiveness. I’ll begin by asking the fundamental question, what is the American Constitution and American constitutional law. And focus specifically on the distinct place of American Constitution and American constitutional development in the world. Scholars and visitors to the US have long recognized the US Constitution as unique. Going back almost 200 years, Alexis de Tocqueville, on his visit to the United States, remarked specifically about America’s unique constitutional culture.

“The obligation to base decisions on the Constitution as opposed to the law was peculiar to the American judge.”

-Alexis de Tocqueville

De Tocqueville observed, the obligation to base decisions on the Constitution as opposed to the law was peculiar to the American judge, at the time he visited. What he meant in this is that many countries, of course, had common law regimes and statutes. But, when De Tocqueville visited the US the US was unique in it’s written Constitution. Much later, in marking the Bicentennial of the US Constitution in 1989, Time Magazine released a special issue in which it called our Constitution a gift to all nations. And proclaimed proudly that 160 of the 170 nations then in existence. That modelled their constitution upon our own. Around the same time, Guido Calabresi leading scholar, dean of, former dean of Yale Law School and a judge, described the other countries in the world as our quote constitutional offspring. I’ll explore these themes in this segment and while it is true that the US Constitution is distinctive. What we’ll see is that if, if other countries are our constitutional offspring, as Judge Calabresi has said, they’re an offspring that have take a very different path in some key ways then the US constitutional development. In this segment I’ll explore four different major themes. First, I want to talk about the basic text of the Constitution and the long history of interpretation that has taken place in American legal culture, which itself is virtually unique in the world and forms a unique and distinctive aspect of American constitutionalism. Then I’ll look at a few different kinds of broad clusters of constitutional rights and structures. First, the manner in which our constitution divides government and it divides it twice both vertically between the federal and state governments and then horizontally across the federal government into the different branches of the legislature, the executive branch and the judiciary. And I’ll explore some current debates that resound even today about the proper allocation of those different governmental structures. I’ll then turn to what many of us think about when we think about the constitution, namely the individual rights that we hold dear, and that government and the courts struggle to mediate and strike the proper balance in, in applying things like freedom of religion, the right to be free of race discrimination, the right to bare arms, the right to assemble as we choose. All of these form a core part of the American constitutional tradition. And although we don’t have time in this segment to explore each one in great detail, I’ll explore some general themes that I think cluster around the general area of independent individual rights protection in the American tradition.

The Constitution’s

• basic text
• history
• interpretation

General themes that guide thinking about the Constitution in specific applications

Finally, I’ll conclude by talking about the US Constitution’s distinct influence in the world. And the manner of which many other countries that have recently adopted written constitutions somewhat along the US model have chosen different paths and gone in different directions then, then the US has in ways that I, then in turn shines a light on what’s truly unique about the American experience. Now I’ll turn to the first substantive section of this segment, which deals with the Constitution’s basic text, history, and interpretation, some general themes that guide us as we think about the Constitution in specific applications to individual rights areas. The first most basic question we might think about. And one, it’s one that people have been struggling about for the entire life of the US Constitution, is what is the US Constitution. Where is it? Where do we find it? Now, at first glance we might think that’s a very simple answer. Of course, we have a written constitution. It has a text. And we might say, well, that’s it and that’s all there is. As I’ll assert in the next few minutes, I think that is dramatically wrong, both in, as a descriptive matter of the way the Constitution has been interpreted and as a normative matter of how we ought to interpret it. But, let’s talk about the text and the history a bit to start out with. I hold in my hand here the full text of the constitution in this little booklet. It’s a booklet I picked up at the Supreme Court many years ago: The Constitution of the United States of America. As you’ll see this is a slim document and as I’ll, I’ll describe in, in detail in a few minutes, this is the world’s shortest constitution. And the, the brevity of our constitution itself is it self important, and it creates a kind of interpretative imperative. These words in this little document are often vague and unspecified, and they don’t interoperate themselves. And much of what the American constitution tradition has been over the past many centuries, has been an effort to translate and give content to these very sparse and undefined words. So we might say where is the Constitution? Is it in the text? I would say, yes it is. But it’s not fully embodied in this tiny little, little booklet that I hold in my hand. Where else might we look then? We do need to think about the text and the text is one thing that endures. But as we look at his, history of constitutional development in the United States, we see the, the role of time. And here I mean the several centuries that this constitutional text has been with us, is important, and is foundation in how we think about the document. The document stays with us, but we as a people change over time. And that inflects and affects the way we interpret the document. And we can see real life examples in the Supreme Court of the way the court itself changes in its own interaction with the document. We also have a crucial role in, in American history in the institutions that shape and contest constitutional meaning. When we talk about those institutions, obviously the primary institution we talk about is the United States Supreme Court, a group of, these days, nine unelected judges who sit in Washington DC. Originally for much of the nation’s history the court had fewer than nine. Justices but we, we, when we talk about constitutional meaning we need to look beyond the court and think about all of the other institutions in our civic society that that participate in interpretation. Legislatures, indeed in the early days it was primarily legislatures and, non judicial actors that participated in constitutional interpretation. The executive branch, certainly at the federal level as well as the state level is a focal point where the vast majority of decisions about constitutional rules are made much more so than the very few cases that reach into the Supreme Court. And then much more broadly, and in ways that constitutional scholarship has started to take account of within the last decade or two, these words at the bottom come right from the constitution itself, We the People, the American people in all of our kind of diverse and often contested debates over constitutional meaning.

Shapers of Constitutional Meaning

• United States Supreme Court
• Legislatures
• The Executive Branch federal and state
• “We the People” the American people play a leading role in interpreting the Constitution

We play a leading role in interpreting the Constitution and in updating its meaning through the generations over the past two centuries. Let me say a bit more about the tax and history by returning to where these all started just a few miles from where I stand here today. In the old city of Philadelphia here in this building called Independence Hall. It’s important to note, and then very important for the American constitutional story that the framers of this country, and of the Constitution, met here twice, separated by more than a decade. They met in 1776 while still pull, part of the British Empire to frame a document that’s central to our. Political tradition called the Declaration of Independence, declaring that this nation would, would, would form free of Britain and chart a course as a new nation. And we celebrate that day, July 4th, 1776. One day we don’t celebrate is July 12th, 1776. Because after the Declaration of Independence, which we all remember, the framers sat around, and they drafted a constitution for this new nation. It was called the Articles of Confederation. And it was, that was draft was issued and initially approved by an initial vote on July 12th, 1776. Now today, that is not a date we celebrate in United States history because the original constitution was in many senses a failure. And so the framers had to come back again in 1787 to essentially do version 2.0 of the constitution. And this is important for the way we think about the constitution, because we, our constitution that endures with us today then, was born out of a failed experiment in constitutionalism called the Articles of Confederation. What was wrong with the articles? They created a government that was too weak. There was no central executive, there was insufficient power to tax and on, at the national level there was insufficient ability to reign in the self interested and counter productive behaviours of state governments that would do things like enact their own internal tariffs, engage in their own foreign policy, and, and things of that sort. Simply put, the articles of confederation were no way to run a serious nation state. When the framers gathered in 1787 and were trying to do things, which were in tension then and remain in tension, and create some of our greatest constitutional debates, they were trying to structure a government that was restrained and protected individual liberty. And the, these, those values remain important and central to, to our constitutional tradition, but at the same time, keeping in mind the failures of the Articles of the Confederation.

1787 Framers Meeting

1. Structure a government that was restrained and protected individual liberty
2. Create a government that worked and that had the strength and efficiency and capability to address national problems on a national scope

They were trying to create a government that worked, and that had the strength and efficiency and capability to address national problems on a national scope. So, it’s these conflicting impulses that we see today, even in debates say, over the new Affordable Care Act passed a few years ago, which attempts to address national problems of health care on a national scale. And which has generated constitutional debate over individual liberties, even as it tries to address pressing health problems. These debates don’t go away. They are essential to our constitutional culture. And they, in a sense, date all the way back to these beginning principles where the Framers tried to do, to do two very different things. The most important Founding Father, James Madison, was aware of this internal tension and expressed in, in writings. In important writings called

The important compromise of the Constitution is that it balances a limited government that protects individual liberty, with a government that is strong enough to address national problems. The Articles of Confederation failed in great part because it lacked this second element.

The Federalist Papers. So Madison said in Federalist fifty one. Quote in framing a government which is to be administered by men over men, the great difficulty lies in this. You must first enable the government to control the government, and in the next place, oblige it to control itself.

The Federalist Papers

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in this place, oblige it to control itself.”

-James Madison

 Consider Madison’s words in the context of our present, present debates today which bear the same internal tension. First, we want a government that is strong enough robust enough to control the governed, governed and, and effectuate legitimate solutions to the problems we face as a nation. But we also want a governmental structure and we want a constitution that controls the government itself and protects individual liberty, and structures governmental decision making in a way that promotes the optimal functioning of our democracy. These are the things that the men who met here over two centuries ago struggled with and attempted to strike a balance with. And it’s the very same balance that in our own constitutional debates and interpretation we attempt to strike today. Let me now turn to some specific choices the framers made in 1787 about the document itself that still have major interpretation implications for the way we think about the constitution. So what is unique about the actual text of the constitution? The first thing that’s unique, and that we take for granted a bit, most countries in the world have now, finally. Followed our lead on but was very unique in 1787 was the very fact of a written constitution. Lots of countries including perhaps most notably Great Britain, have long constitutional traditions but until very recently those traditions and the constitutional culture and rules of those societies. Were not captured and collected and written in a single short document. Another unique feature about the US Constitution is not just that it was written but how few words the framers used in their writing of it. The Constitution comes in at just over 4,000 words, which is remarkably short by comparison to other constitutions in the world. Compared to the longest constitutions we see both around the world and in our own state governments. The US Constitution is remarkably short, again, at just over 4,000 words. By comparison, the Constitution of the nation of India in its English language version is almost 120,000 words long and even that isn’t the longest constitution that we have in this library. That would be the Constitution of our own state of Alabama which clocks in at over 300,000 words. By this standard of course, then to use a few thousand words as the framers of the US Constitution did to set up an entire government structure is incredibly sparse. And that very brevity, I has clear interpretive interpretations. With so few words there was no time for definitions clauses, or lengthy explanations of the key constitutional provisions. Instead our core constitutional guarantees, and our core structural provisions that structure government, are laid out in clear, but very sparse terms, which indeed I would invite subsequent generations to. Interpret and, and put substance in to those sparse phrases. This is something I’ll talk more about in this segment. Not only is the US Constitution extremely short, it’s also extremely difficult to change. It is among the World’s Constitutions, the hardest to amend the text. The provisions for amendment are set forth in a very short provision of the Constitution called Article V and the most important point is they require extreme super majority approval by the US states. By super majority I mean far more than 50%. Indeed three quarters of the individual states. Need to consent in order for any amendment to be made to the text of the Constitution. What this means is the text is extremely difficult to change. The difficulty in amending the Constitution involves extreme interpretive implications.

What’s Distinctive about the Text?

• Writtenness
• Length
• Difficult to change
• Interpreters must revise their understandings of Constitutional meaning

Because the text is so hard to change, in order to update constitutional meaning, with a text that is largely set in stone, the interpreters of the Constitution led by the Supreme Court occasionally must revise or update their understandings of constitutional meaning. This is something we see over time, over the generations at the Supreme Court, and it’s a central part of out constitutional culture, that the text itself stays the same. While the legal interpretation of that text changes over time. Relatively the US constitution is the oldest continuously operating constitution in the world, as I alluded to before and will return to at the end of this segment. Written constitutionalism backed back a strong supreme court, is becoming the world’s norm. But for most countries it’s a phenomenon that has happened only in the past century. The US with a constitutional tradition stretching back over two centuries has a much longer process of institutional development than other countries, which itself is a key feature of our constitutional culture and it affects interpretation even to the present day. All of these variables that I’ve been talking about: The writtenness of the Constitution, its extreme brevity, its age, the difficulty in changing the Constitution, combine with yet another feature about any kind of written language, which is the inherent ambiguity of language.

What’s Distinctive about the Text?

• Writtenness
• Length
• Difficult to change
• Unspecified nature of many of the key terms

And this is a short a Constitution, in the United States, which contains, some phrases which are very vague and don’t come with definitions clauses, and I’ll show you some examples. Some parts of the Constitution are written in language that is crystal clear, even today. And generally, most readers of the English language would agree in what it means. Many other parts of the Constitution, including some of the very most important Parts, are written in language that was extremely vague then and remains extremely vague and compels subsequent interpretation. So for instance the Constitution contains a very clear requirement about the age of the President. It says, no person shall be eligible to be President who shall not have attained the age of 35 years. That’s clear, it was clear when it was written. And it would be clear today where any controversy over that to occur. But consider another phrase also from article two which says, the executive Power should be vested in President. This is one of the most crucial foundations of the modern bureaucratic state. This power, the executive power, on which our entire administration is founded with almost a million employees virtually everything, everything we think of as the federal executive branch its authority rests on this clause. Yet the basic phrase here, the key operative phrase, executive power, is not defined anywhere in the Constitution. In order to give meaning to that, what judges and other participants in constitutional debates have had to do over the past 200 years is contest, debate, and fill in their own interpretation of what executive power means. Likewise in the key provisions that protect our individual rights, some of the most important phrases are inherently vague and ambiguous.

The Language of the Constitution

“Neither shall any Person be eligible to {be President} who shall not have attained to the Age of thirty five Years.” Art. II, sec. 1

“The executive Power shall be vested in a President.” Art. II, sec. 1

“ Excessive bail shall not be imposed… nor cruel or unusual punishments inflicted.” Amend. VIII

The eighth amendment prohibits excessive bail. What does excessive mean? It prohibits cruel and unusual punishments. What’s cruel to one person may not be cruel to somebody else. These are clauses that come without definitions and without explicit user instructions, and this is important and this was intentional by James Madison and the other framers. They did not want a document that would be fixed in time with explicit. User code, instead, they envisioned a document where each generation would supply its own definitions for these grand, but yet inherently vague provisions in the Constitution. So, how has, how have subsequent interpreters given meaning to these clauses? And here I bring in a concept I mentioned a few minutes ago, namely the notion of institutions and institutional development in the American Constitutional traditional. We have in our constitutional order a predominant institution for, for giving meaning to the Constitution. it, we, it’s called the US Supreme Court. And although it wasn’t perhaps envisioned as such by the framers, very early on in America’s constitutional development the Supreme Court became the leader institution that gave meaning to the vague phrases of the constitution. Historically I want to mention Chief Justice John Marshall, the first great chief justice of the US Supreme Court, who served for the better part of the early 19th century. Marshall and his colleagues on Supreme Court, in this era, where the ones who began giving the Supreme Court the prestige that it enjoys today as the leading interpreter of the Constitution in the US. And Marshall had a very specific vision for interpreting the constitution. He said in the leading early case of McCulloch versus Maryland. We must never forget it is a Constitution we are expounding. Now what does that mean? He was distinguishing constitutional interpretation from the interpretation of many other sorts of legal documents, ordinary consumer contract ordinary statutes and regulations, wills and trusts, the ordinary stuff. Of law that judges and other people deal with on a daily basis. The Constitution in Marshall’s vision was something different, and it was something that was intended to endure for much longer. Recall what I said about the extreme brevity of the Constitution and the fact that it doesn’t come with definitions clauses. For Marshall, as for many people who have followed him, what this means is that judge and other interpreters of The Constitution over time need to supply their own interpretive effort and interpretive analysis to these clauses. Moreover although the Constitution’s text remains fixed, its interpretation does not.

Marshall in McCulloch v. Maryland (1819)

“To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.”

And here we see Marshall arguing that it would be unwise to provide immutable rules which would lock constitutional meaning in place. Instead Marshall and many who have followed him argue for more evolving constitutional culture. So given the necessity of subsequent interpretation in our constitutional tradition, who does the interpreting? Which institutions, which people? The central point is that interpretation is diffused, pluralistic, and multi-faceted in the US constitutional tradition. Yes, the Supreme Court has come to be the leading constitutional interpreter, but by no means is it the only key institution infusing the constitution with meaning. In the earliest days of the American republic, the Supreme Court was largely on the sidelines, instead, the most heated debates took place in the halls of congress, in the chambers of state legislatures, and in the public square itself, the public and the media of the 19th century being explicitly and intently involved in constitutional interpretation. So to today, although the US Supreme Court has ascended to a predominant place in American constitutional interpretation, by no means is it the exclusive interpreter. And on some issues, it is not the most important interpreter of constitutional meaning.

Who does the Interpreting?

• Multiple institutions and the public
• But increasingly through time in the U.S., and distinctively, it has been the Supreme Court
• Rise of strong-form judicial review

What has happened over the past 200 years through the rise of what we call strong form judicial review, is that the court has attained a  predominance in constitutional interpretation to agree, to a degree that the framers probably didn’t foresee. And this started to happen early on and indeed John Marshall, once again, was a key architect of this strategy. In a famous case in 1803 called Marbury versus Madison Marshall for the first time asserted the proposition that it was the Supreme Court. Who was tasked with giving meaning to the Constitution? Marshall said it is emphatically the province and the duty of the judicial department to say what the law is. I’ve spoken about the institutions that give the Constitution meaning to return to one last point that I alluded to minutes ago. Let me speak about the role of two centuries of time and historical development in creating the constitutional culture we have today. Here I would focus on three separate Supreme Court cases, separated by almost two centuries. The first of these was the case of Worcester versus Georgia. This case, arising in 1832 involved a review of the state of Georgia’s forced expulsion of the Cherokee Indian tribe. Georgia had enacted policies in taking steps to oust most Cherokees from the borders of their state. And this was in violation the Supreme Court held of various laws and treaties of the United States. Georgia was acting unlawfully in doing this to the Cherokees. What happened in the aftermath of that decision was telling about the weakness of the Supreme Court in this prior century. As history tells us President Andrew Jackson allegedly said, John Marshall has made his decision, now let him go enforce it. And, of course the justices of the court had no means of enforcing this. And what happened is the sad story that the Cherokee tribe was indeed ousted from Georgia despite the fact that they had won a legal victory in the Supreme Court. It was an empty victory because the other institutions in American life, which would have had power to enforce that decision against Georgia stood on the sidelines and let Georgia unlawfully oust the tribe from its borders, very different story with the passage of a hundred years later. And another contested decision also involving another southern state. Cooper versus Aaron involved efforts to integrate the little rock Arkansas schools. Just a few years after the landmark Brown versus Board of Education decision in 1954. The law of the land as articulated by Brown and subsequent supreme court cases was that, segregated schools were illegal. And that the African American students who wished to attend high school in Little Rock had an airtight constitutional right to do so. But again, the opinions that the Supreme Court issues are merely words on a piece of paper. As we saw in the Cherokee Indian case with Georgia without enforcement from other parts of society, those words would be idle victories indeed. What happened in Cooper after Cooper versus Aaron though, tellingly, was President Dwight Eisenhower mobilized the 101st Airborne, sent troops down, sent federal troops down to Little Rock. Who stood guard over the Little Rock High School and ensured that the African American students who had won their legal victory had that translated into the actual victory of being able to attend school in Little Rock. So the Supreme Court’s legal ruling was accompanied by immediate acceptance and enforcement by other branches of government. And we saw this even much more recently in the hotly contested Bush versus Gore decision involving the 2000 presidential election. Both sides claimed victory in the election. Both sides claimed to have the law on their side. But the minute that Vice President Al Gore had been declared to have lost the election by the Supreme Court in a very controversial decision within a day of that decision, Vice President Gore was on TV conceding the election and, and allowing a peaceful transition of power to President George W Bush. Something that would not happen in certain other countries even today and would not have probably happened in the United States in the earliest days of the Republic. The point being we’ve had the text for over 200 years of our constitution. We’ve had the Supreme Court for over 200 years, but this nuanced and sophisticated acceptance of the role of the Supreme Court. And the enforcements of its decisions in our constitutional culture are something that it took quite a bit longer to attain. And this is a lesson and an instructive one I think for those who say that US constitutionalism is being exported around the world to other countries. It is true that that is being done, but to truly export, the US constitutional structure. We need to do much more than export the text. Instead, we need to export the text and the institutions, and in some cases, perhaps wait for the passage of time in other nations that don’t have a constitutional tradition in order to have the kind of framework that we have here. writtenness of the Constitution, its extreme brevity, its age, the difficulty in changing the Constitution, combine with yet another feature about any kind of written language, which is the inherent ambiguity of language. And this is a short a Constitution, in the United States, which contains. Some phrases which are very vague and don’t come with definitions clauses, and I’ll show you some examples. Some parts of the Constitution are written in language that is crystal clear, even today. And generally, most readers of the English language would agree in what it means. Many other parts of the Constitution, including some of the very most important Parts, are written in language that was extremely vague then and remains extremely vague and compels subsequent interpretation. So for instance the Constitution contains a very clear requirement about the age of the President. It says, no person shall be eligible to be President who shall not have attained the age of 35 years. That’s clear, it was clear when it was written. And it would be clear today where any controversy over that to occur. But consider another phrase also from article two which says, the executive Power should be vested in President. This is one of the most crucial foundations of the modern bureaucratic state. This power, the executive power, on which our entire administration is founded with almost a million employees virtually everything, everything we think of as the federal executive branch its authority rests on this clause. Yet the basic phrase here, the key operative phrase, executive power, is not defined anywhere in the Constitution. In order to give meaning to that, what judges and other participants in constitutional debates have had to do over the past 200 years is contest, debate, and fill in their own interpretation of what executive power means. Likewise in the key provisions that protect our individual rights, some of the most important phrases are inherently vague and ambiguous. The eighth amendment prohibits excessive bail. What does excessive mean? It prohibits cruel and unusual punishments. What’s cruel to one person may not be cruel to somebody else. These are clauses that come without definitions and without explicit user instructions, and this is important and this was intentional by James Madison and the other framers. They did not want a document that would be fixed in time with explicit. User code, instead, they envisioned a document where each generation would supply its own definitions for these grand, but yet inherently vague provisions in the Constitution. So, how has, how have subsequent interpreters given meaning to these clauses? And here I bring in a concept I mentioned a few minutes ago namely the notion of institutions and institutional development in the American Constitutional traditional. We have in our constitutional order a predominant institution for, for giving meaning to the Constitution. it, we, it’s called the US Supreme Court. And although it wasn’t perhaps envisioned as such by the framers, very early on in America’s constitutional development the Supreme Court became the leader institution that gave meaning to the vague phrases of the constitution. Historically I want to mention Chief Justice John Marshall, the first great chief justice of the US Supreme Court, who served for the better part of the early 19th century. Marshall and his colleagues, on Supreme Court in this era, where the ones who began giving the Supreme Court the prestige that it enjoys today, as the leading interpreter of the Constitution in the US. And Marshall had a very specific vision for interpreting the constitution. He said in the leading early case of McCulloch versus Maryland. We must never forget it is a Constitution we are expounding. Now what does that mean? He was distinguishing constitutional interpretation from the interpretation of many other sorts of legal documents: Ordinary consumer contract ordinary statutes and regulations, wills and trusts, the ordinary stuff. Of law that judges and other people deal with on a daily basis. The Constitution in Marshall’s vision was something different, and it was something that was intended to endure for much longer. Recall what I said about the extreme brevity of the Constitution and the fact that it doesn’t come with definitions clauses. For Marshall, as for many people who have followed him, what this means is that judge and other interpreters of The Constitution over time need to supply their own interpretive effort and interpretive analysis to these clauses. Moreover although The Constitutions text remains fixed its interpretation does not. And here we see Marshall arguing that it would be unwise to provide immutable rules which would lock constitutional meaning in place. Instead Marshall and many who have followed him argue for more evolving constitutional culture. So given the necessity of subsequent interpretation in our constitutional tradition, who does the interpreting? Which institutions, which people? The central point is that interpretation is diffused, pluralistic, and multi-faceted in the US constitutional tradition. Yes, the Supreme Court has come to be the leading constitutional interpreter, but by no means is it the only key institution infusing the constitution with meaning. In the earliest days of the American republic, the Supreme Court was largely on the sidelines, instead, the most heated debates took place in the halls of congress, in the chambers of state legislatures, and in the public square itself, the public and the media of the 19th century being explicitly and intently involved in constitutional interpretation. So to today, although the US Supreme Court has ascended to a predominant place in American constitutional interpretation, by no means is it the exclusive interpreter. And on some issues, it is not the most important interpreter of constitutional meaning. What has happened over the past 200 years through the rise of what we call strong form judicial review, is that the court has attained a pre, predominance in constitutional interpretation to agree, to a degree that the framers probably didn’t foresee. And this started to happen early on and indeed John Marshall, once again, was a key architect of this strategy. In a famous case in 1803 called Marbury versus Madison Marshall for the first time asserted the proposition that it was the Supreme Court. Who was tasked with giving meaning to the Constitution?

Who does the Interpreting?

Marshall in Marbury v. Madison (1803):

“It is emphatically the province and duty of the judicial department to say what the law is.”

Marshall said it is, it is emphatically the province and the duty of the judicial department to say what the law is. I’ve spoken about the institutions that give the Constitution meaning to return to one last point that I alluded to minutes ago. Let me speak about the role of two centuries of time and historical development in creating the constitutional culture we have today. Here I would focus on three separate Supreme Court cases, separated by almost two centuries. The first of these was the case of Worcester versus Georgia. This case, arising in 1832, involved a review of the state of Georgia’s forced expulsion of the Cherokee Indian tribe. Georgia had enacted policies in taking steps to oust most Cherokees from the borders of their state. And this was in violation the Supreme Court held of various laws and treaties of the United States. Georgia was acting unlawfully in doing this t the Cherokees. What happened in the aftermath of that decision was telling about the weakness of the Supreme Court in this prior century. As history tells us President Andrew Jackson allegedly said, John Marshall has made his decision, now let him go enforce it. And, of course the justices of the court had no means of enforcing this. And what happened is the sad story that the Cherokee tribe was indeed ousted from Georgia despite the fact that they had won a legal victory in the Supreme Court. It was an empty victory because the other institutions in American life, which would have had power to enforce that decision against Georgia stood on the sidelines and let Georgia unlawfully oust the tribe from its borders, very different story with the passage of a hundred years later. And another contested decision also involving another southern state. Cooper versus Aaron involved efforts to integrate the little rock Arkansas schools. Just a few years after the landmark Brown versus Board of Education decision in 1954. The law of the land as articulated by Brown and subsequent supreme court cases was that segregated schools were illegal. And that the African American students who wished to attend high school in Little Rock had an airtight constitutional right to do so. But again, the opinions that the Supreme Court issues are merely words on a piece of paper. As we saw in the Cherokee Indian case with Georgia without enforcement from other parts of society, those words would be idle victories indeed.

In the time of Worcester v. Georgia, the American system of checks and balances wasn’t fully functional, because the judiciary relies on the executive and other institutions to enforce its mandates; it cannot enforce anything on its own.

What happened in Cooper after Cooper versus Aaron though, tellingly, was President Dwight Eisenhower mobilized the 101st Airborne, sent troops down, sent federal troops down to Little Rock. Who stood guard over the Little Rock High School and ensured that the African American students who had won their legal victory had that translated into the actual victory of being able to attend school in Little Rock. So the Supreme Court’s legal ruling was accompanied by immediate acceptance and enforcement by other branches of government. And we saw this even much more recently in the hotly contested Bush versus Gore decision involving the 2000 presidential election. Both sides claimed victory in the election. Both sides claimed to have the law on their side. But the minute that Vice President Al Gore had been declared to have lost the election by the Supreme Court in a very controversial decision within a day of that decision, Vice President Gore was on TV conceding the election and, and allowing a peaceful transition of power to President George W Bush. Something that would not happen in certain other countries even today and would not have probably happened in the United States in the earliest days of the Republic. The point being we’ve had the text for over 200 years of our constitution. We’ve had the Supreme Court for over 200 years, but this nuanced and sophisticated acceptance of the role of the Supreme Court. And the enforcements of its decisions in our constitutional culture is something that it took quite a bit longer to attain. And this is a lesson and an instructive one I think for those who say that US constitutionalism is being exported around the world to other countries. It is true that that is being done, but to truly export, the US constitutional structure. We need to do much more than export the text. Instead, we need to export the text and the institutions, and in some cases, perhaps wait for the passage of time in other nations that don’t have a constitutional tradition in order to have the kind of framework that we have here.