Beruflich Dokumente
Kultur Dokumente
1 6/19/2017 3:35 PM
ARTICLE
By Mark S. Kende*
I. INTRODUCTION ........................................................................... 417
II. PRAGMATIC V. FORMALIST TENDENCIES .................................... 420
A. Pragmatism Evident ........................................................... 420
B. Formalism Evident ............................................................. 421
III. THE SHIFT TO BALANCING AND PROPORTIONALITY REVIEW ...... 424
A. Level 1 European Type Proportionality in the U.S.
Supreme Court.................................................................... 426
B. Level 2 Proportionality: The More American Approach ... 427
1. Eighth Amendment ....................................................... 428
2. Punitive Damages ......................................................... 428
3. Section 5 of the 14th Amendment ................................. 429
C. Level 1 Open Balancing ..................................................... 429
1. Dormant Commerce Clause .......................................... 429
2. Abortion ........................................................................ 429
3. The Fourth Amendment ................................................ 430
4. Procedural Due Process ................................................ 430
5. Freedom of Speech ....................................................... 430
6. Campaign Finance ........................................................ 431
D. Level 2 Masked Balancing ................................................. 431
IV. CONCLUSION .............................................................................. 433
I. INTRODUCTION
U.S. constitutional law is frequently described as formalistic.1 For
*
James Madison Chair Professor in Constitutional Law, Director of the Drake University
Constitutional Law Center. The author wishes to thank Professor Michael Herz for the
opportunity to participate in this conference.
1 Allison H. Eid, Federalism and Formalism, 11 WM. & MARY BILL RTS. J. 1191 (2003)
(“Many commentators have critiqued the Supreme Court’s New Federalism Decisions as
417
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example, the U.S. is one of the few nations where originalism is taken
seriously as an interpretive method.2 This method involves searching
through 18th Century American dictionaries to see how key words in
the Constitution were defined to answer questions today. 3 Moreover,
conservative politicians constantly beat the drum against “judicial
activism,” supposedly seeking a strictly construed constitution.4
Conservative scholars can be part of this chorus (though sometimes they
are the activists). Alexander Bickel highlighted the “passive virtues.”5
Herbert Wechsler actually doubted the correctness of Brown v. Board of
Education6 because it was not based on “neutral principles.”7 Free
speech case law is supposedly categorical,8 and equality law purportedly
depends on three scrutiny levels. Foreign law’s influence is frowned
upon by several Justices.9 And the U.S. Constitution supports
individualistic liberty with no affirmative socio-economic rights, only
negative civil and political rights,10 as well as strong principles of state
sovereignty. This paper, however, seeks to unmask the flexibility,
functionalism and other factors that lie behind this pretense of
formalism.
Specifically, this paper insists that American constitutional law
‘excessively formalistic.’”). American constitutional law is not nearly as formalistic as the code-
based French approach to constitutionalism. But this paper is addressing democracies where
courts have something akin to judicial supremacy on constitutional matters.
2 Jack Balkin, Why Are Americans Originalist, in LAW, SOCIETY AND COMMUNITY 309
(Richard Nobles & David Schiff ed., 2014); Jamal Greene, On the Origins of Originalism, 88
TEX L. REV. 1, 19 (2009). But see Ozan Varol, The Origins and Limits of Originalism: A
Comparative Study, 44 VAND. J. TRANSNAT’L L. 1239 (2011) (discussing originalism in Turkish
cases).
3 District of Columbia v. Heller, 554 U.S. 570 (2008) (Justice Scalia frequently references
old dictionaries to help define constitutional terms in his opinion, for example, he discusses
Samuel Johnson’s 1773 dictionary). It is especially difficult to apply these definitions to
technologies that did not exist in the 18th century such as freedom of expression on the Internet.
But originalists “construct” suitable meanings there (emphasis added).
4 Greene, supra note 2, at 17.
5 Alexander M. Bickel, The Supreme Court, 1960 Term — Foreword: The Passive Virtues,
75 HARV.. L. REV. 40 (1961).
6 Brown v. Bd. of Edu. of Topeka, 347 U.S. 483 (1954).
7 Herbert Wechsler, Toward Neutral Principles in Constitutional Law, 73 HARV. L. REV. 1,
22 (1959).
8 Alexander Tsesis, The Categorical Free Speech Doctrine and Contextualization, 65
EMORY L.J. 495 (2015) (emphasizing the categorical nature of American First Amendment
doctrine, but also pointing out that balancing still occurs).
9 Roper v. Simmons, 543 U.S. 551, 624-26 (2005) (Scalia J., dissenting) (Justice Sotomayor
had to promise at her confirmation hearing in the Senate Judiciary Committee that she would not
resort to foreign law).
10 Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Posner, J.) (“The Constitution is a
charter of negative liberties[.]”).
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11 Adam Liptak, “We the People” Loses Appeal With People Around the World, N.Y. TIMES
(Feb. 6, 2012), http://www.nytimes.com/2012/02/07/us/we-the-people-loses-appeal-with-people-
around-the-world.html?_r=0.
12 STEPHEN BREYER, THE COURT AND THE WORLD, AMERICAN LAW AND THE NEW
GLOBAL REALITIES 292 (2016).
13 Vicki V. Jackson, Constitutional Law in an Age of Proportionality, 124 YALE L.J. 3094
(2015).
14 Alexander T. Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943
(1987).
15 Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism,
107 MICH. L. REV. 391 (2008).
16 Marbury v. Madison, 5 U.S. 137 (1803).
17 McCulloch v. Maryland, 17 U.S. 316 (1819).
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A. Pragmatism Evident
The Supreme Court’s seminal Marbury decision has received
much criticism. The Court ruled for the political opposition (President
Jefferson), denied delivery of a judicial commission to Mr. Marbury,
and yet developed judicial review in a way that has influenced the rest
of the world – hardly a formalist role. As William Van Alstyne, has
shown, the Court could have avoided the constitutional question and
determined that it lacked statutory jurisdiction. Or the Court could have
read Article III as not limiting the mandamus authority of the Supreme
Court’s original jurisdiction.18 But no one can doubt the Court’s
pragmatism. One can question Chief Justice Marshall’s role and
motives since the “the context of [the] statute is acrid with the smell of
threatened impeachment.”19 But Marshall guaranteed separation of
powers and checks and balances, and the Federalist Papers indicated
the founders wanted that.20 Marshall was no formalist. This is further
confirmed by his structural and policy arguments in McCulloch
regarding the dangers of the other branches.
In McCulloch, the Court ruled that the Necessary & Proper Clause
should be interpreted flexibly to give Congress the power to create a
national bank. State sovereignty could not stand in the way. Interstate
commerce could not function otherwise. Federal power was supreme in
terms of balancing interests. He made clear it was a “Constitution we
are expounding”21 not a formalist code. The Bank would benefit the
18 William Van Alstyne, A Critical Guide to Marbury v. Madison, 18 DUKE L.J. 1 (1969).
The issue was whether Marbury was still entitled to receive personal delivery of his commission
to become a Justice of the Peace, even though the Federalists in power did not deliver the
document in time. Id. He brought suit for mandamus invoking the Supreme Court’s original
jurisdiction, which created numerous legal questions mentioned above. Id. Chief Justice Marshall,
a Federalist, ruled that the new President Thomas Jefferson, a Republican, did not have to carry
out the complete the delivery. Id.
19 Morrison v. Olson, 487 U.S. 654, 697, 702 (1988) (Scalia, J., dissenting). See generally
Jack Knight & Lee Epstein, On the Struggle for Judicial Supremacy, 30 LAW & SOC. REV. 87
(1996) (discussing the impeachment threat Marshall faced).
20 Numerous parts of the Federalist Papers emphasize this. See, e.g., THE FEDERALIST NO. 51
(James Madison). For an important revision of the usefulness of James Madison’s Constitutional
Convention Notes as well, see MARY SARAH BILDER, MADISON’S HAND, REVISING THE
CONSTITUTIONAL CONVENTION (2015).
21 McCulloch, 17 U.S. at 407.
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country in many ways, such as facilitating the need to raise armies and
navies, deposit taxes, etc.
Now the Supreme Court’s language in these cases did not herald an
era of activism. The Court did not strike down another law as
unconstitutional until Dred Scott v. Sandford22 and this was a foolish
effort to avert the Civil War. But Marbury and McCulloch established
that structural, policy, slippery slope, and moral arguments mattered,
not just originalist text or state power. Indeed, the Civil War took place,
and it is still surprising that the Framers who authored the Civil War
Amendments and supported Reconstruction, are treated by the Supreme
Court as second class “framers” compared to the Philadelphia
Convention’s slave holders.23 These Civil War Amendments opened the
door to the expansion of federal power and the protection of rights,
though the conservative Court quickly closed that door in the 1870’s
and 1880’s without sufficient justification.
B. Formalism Evident
Among the Court’s first decisions after the Civil War were The
Slaughter-House Cases24 and The Civil Rights Cases.25 These
problematic decisions became partly responsible for the Court’s
awkward fundamental rights jurisprudence in the 20th Century. 26 The
Court also had a formalistic tendency to rigidly categorize cases.
In The Slaughter-House Cases, the Court restricted the Fourteenth
Amendment’s Privileges & Immunities clause. Yet most scholars
viewed the clause as a font of fundamental rights to protect the newly
freed slaves.27 Instead, the Court utilized a textual approach to establish
a narrow definition and to preserve state sovereignty. The Fourteenth
Amendment indicated that, “All persons, born, or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside[.]” This clause
28 Thus, the Supreme Court eventually supported laws that prevented discrimination in
accommodations based on the Commerce Clause, not the Equal Protection Clause. The Civil
Rights Cases prevented use of the latter provision to attack private racism. See, e.g., Heart of
Atlanta Motel v. United States, 379 U.S. 241 (1964).
29 Paul v. Virginia, 75 U.S. 168 (1868). GRANT GILMORE, THE AGES OF AMERICAN LAW 12
(1974) (stating that the formalist period went from at least the Civil War to World War I; one
could argue, however, that formalist impulses were still present until the heights of the
Depression).
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34 LOUIS FISCHER & NEAL DEVINS, POLITICAL DYNAMICS OF CONSTITUTIONAL LAW 121
(2001).
35 Morrison v. Olson, 487 U.S. 654 (1988) (upholding independent counsel though the office
was not meaningfully under the domain of the executive branch that the office was investigating).
36 Lopez v. United States, 514 U.S. 549 (1995) (federal power under the Commerce Clause
was not found to be excessive again until Lopez). And no federal law has been struck down as
providing an insufficient delegation of power to the executive branch. Federal power has
generally grown. The “legal realist” movement also played a role debunking formalist
orthodoxies.
37 MOSHE COHEN-ELIYA & IDDO PORAT, PROPORTIONALITY AND CONSTITUTIONAL
CULTURE (2013); JACOB BOMHOFF, BALANCING CONSTITUTIONAL RIGHTS: THE ORIGINS AND
MEANING OF POST-WAR LEGAL DISCOURSE (2013); DAVID BEATTY, THE ULTIMATE RULE OF
LAW (2005). Alec Stone Sweet & Jud Matthews, Proportionality, Balancing, and Global
Constitutionalism, 47 COLUM. J. TRANSNAT’L L. 73 (2008).
38 R. v. Oakes, [1986] 1 S.C.R. 103 (Can.).
39 State v. Makwanyane 1995 (3) SA 391 (CC) (S. Afr.).
40 CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) PD 221 (1993)
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(Isr.).
41 Dieter Grimm, Proportionality in Canadian and German Constitutional Jurisprudence, 57
U. TORONTO L.J. 383, 384 (2007) (Justice Grimm has been a member of the German Federal
Constitutional Court as well as a noted scholar).
42 Soering v. United Kingdom, 11 Eur. Ct. H. R. 439 (1989). See also Case C-180/96 United
Kingdom of Great Britain and Northern Ireland v Commission of the European Communities
[1998] ECR, I-2265, para. 96.
43 Bendix Autolite Corp. v. Midwesco Enter., 486 U.S. 888 (1988) (Scalia J., dissenting).
44 AHARON BARAK, PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR LIMITATIONS
3 (2012). Judge Richard Posner authored a vigorous criticism of Barak’s book, even though they
both are pragmatists, though in different ways. Richard Posner, Elighted Despot, NEW REPUBLIC
(Apr. 23, 2007), http://www.tnr.com/article/enlightened-despot.
45 Section 36 of the South African Constitution requires consideration of a totality of the
criteria. See Vicki Jackson, Constitutional Law in the Age of Proportionality, 124 YALE L.J.
3094, 3099 (2015).
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46 The South African Constitution, for example, is supposed to embrace the communitarian
notion of Ubuntu. Yvonne Mokgoro, Ubuntu and the Law of South Africa, 4 BUFF. HUM. RTS. L.
REV. 15 (1998). Justice Mokgoro served on the South African Constitutional Court and has also
been a professor of law.
47 Heller, 554 U.S.
48 Id. at 682 (Breyer, J., dissenting). Moshe Cohen-Eliya & Iddo Porat, The Hidden Foreign
Law Debate in Heller: The Proportionality Approach in American Constitutional Law, 46 SAN
DIEGO L. REV. 367 (2009). Justice Breyer may have not mentioned the foreign sources of his
thinking to avoid a conflict with the Court’s conservative Justices on the utility of foreign law.
49 Heller, 554 U.S. at 689 (Breyer, J., dissenting).
50 Cohen-Eliya & Porat, supra note 48.
51 Id. at 710-11 (“In weighing needs and burdens, we must take account of the possibility that
there are reasonable, but less restrictive, alternatives. Are there other potential measures that
might similarly promote the same goals while imposing lesser restrictions?”). See Nixon v.
Shrink Mo. Gov’t Pac, 528 U.S. 377, 402 (2000) (Breyer, J., concurring) (“existence of a clearly
superior, less restrictive alternative” can be a factor in determining whether a law is
constitutionally proportionate).
52 Richard Posner, Is It All Politics, NEW REPUBLIC (2008). Adam Liptak, Ruling on Guns
Elicits Rebuke from the Right, N.Y. TIMES (Oct. 20, 2008),
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http://www.nytimes.com/2008/10/21/washington/21guns.html.
53 Jackson, supra note 45, at 3098.
54 E. THOMAS SULLIVAN, RICHARD FRASE, PROPORTIONALITY PRINCIPLES IN AMERICAN
LAW 54 (2008).
55 Id. at 171.
56 Liptak, supra note 52.
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1. Eighth Amendment
The Supreme Court has adopted what it calls “narrow
proportionality” in cases involving whether punishment is “cruel and
unusual.” This affirms that the Court will only rarely find a punishment
disproportionate. But there have been significant developments that are
based on whether the punishment exceeds the “evolving standards of
decency that mark the progress of a maturing society.”57
For example, the Supreme Court has recently outlawed the death
penalty for the mentally ill,58 for juveniles,59 and for those who commit
rape.60 Declining popular support (facilitated by exonerations) may
have played a role here too. Death sentences generally have declined,61
and pharmaceutical companies refuse to provide chemicals to carry out
lethal injections.62 The Court has also ruled that juveniles may not be
sentenced to life imprisonment without parole, because the juvenile
should not be presumed incorrigible.63 Nonetheless the Court has said
that it must be “highly deferential” to the legislature in these cases and
that only “grossly” excessive punishments qualify.
Interestingly, these rulings resemble Europe’s opposition to the
death penalty. And several Justices have shown European-type
concerns about solitary confinement as being “cruel and unusual.”
2. Punitive Damages
In BMW v. Gore,64 the Supreme Court adopted a three-part test for
whether a punitive award was excessive under substantive due process.
The criteria include: (1) the degree of reprehensibility of the conduct;
(2) the ratio between the compensatory damages and the punitive
damages; and (3) the sanctions imposed for comparable conduct in
other states. Factor 2 is a proportionality ratio and is probably the most
important.
The decision had an impact. In State Farm Mutual Automobile
Insurance Co. v. Campbell, the Court rejected a punitive damage award
that was 145 times more than the compensatory damages. 65 The Court
then confusingly said that a 1:1 ratio was usually right except “where a
particularly egregious act has resulted in only a small amount of
damages.”66 The problem with these limits, however, is that they may
prevent the award from being high enough to deter the conduct, which
is the purpose of punitive damages.
2. Abortion
There is also the undue burden test in abortion cases. In Whole
Women’s Health v. Hellerstedt, Justice Breyer authored an opinion that
struck down draconian Texas restrictions on abortion clinics in a 5-3
65 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).
66 Id.
67 Boerne v. Flores, 521 U.S. 507 (1997).
68 Id.
69 Id.
70 Id.
71 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).
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5. Freedom of Speech
There are free speech cases that openly use balancing, though they
tend to be older. In Schneider v. New Jersey, the Supreme Court said
72 Whole Woman’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016) (the majority opinion was
written in a pragmatic manner by Justice Breyer using balancing).
73 Nora Morag-Levine, Facts, Formalism, and the Brandeis Brief: The Making of a Myth,
2013 U. ILL. L. REV. 59 (2013). The most famous Brandeis brief was filed in Muller v. Oregon,
208 U.S. 412 (1908).
74 Riley v. California, 134 S. Ct. 2473 (2014).
75 Tennessee v. Garner, 471 U.S 1 (1985) (a police officer may not shoot to kill unless she is
in danger of death or grave bodily harm).
76 Matthews v. Eldridge, 424 U.S. 319 (1976).
77 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
78 United States v. Nixon, 418 U.S. 683 (1974).
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6. Campaign Finance
Finally, there are several recent campaign finance cases where the
Court found that free speech interests trumped laws aimed at corruption,
such as in McCutcheon v. FEC.86 Many scholars and public figures
assert that the Court got these decisions wrong, especially a case called
Citizens United v. FEC.87
88 See, e.g., Suzanne Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481 (2004); R.
Randall Kelso, Standards of Review Under the Equal Protection Clause and Related
Constitutional Doctrines, Protecting Individual Rights: The “Base Pus Six Model” and Modern
Supreme Court Practice, 4 U. PENN. J. CONST. L. 225 (2002).
89 United States v. Virginia, 518 U.S. 515 (1996) (Justice Ginsburg requires an “exceedingly
persuasive justification” which appears to go beyond ordinary intermediate scrutiny.).
90 Grutter v. Bollinger, 539 U.S. 306 (2003) (utilizing strict scrutiny but deferring to the
university).
91 Phillip Prygoski, The Supreme Court’s “Secondary Effects” Analysis in Free Speech
Cases, 6 COOLEY L. REV. 1 (1988).
92 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) (Marshall, J., dissenting)
93 Dandridge v. Williams, 397 U.S. 471 (1970).
94 Rodriguez, 411 U.S.
95 Dep’t of Agriculture v. Moreno, 413 U.S. 528 (1973)
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IV. CONCLUSION
Proportionality analysis, or even American style balancing, has
several advantages over current U.S. constitutional doctrine.
First, as Justice Breyer’s recent book states, it’s more transparent
and candid.96 Second, it’s more fact-based and empirical which also
means it’s more contextual. Third, it’s a methodology that can be
applied throughout much constitutional law, helping to remove some of
the incoherence of the innumerable tests employed. This is important
because American constitutional doctrine makes little sense in areas as
diverse as the Commerce Clause, religion (think about the bizarre status
of the Lemon v. Kurtzman97 case), and racial discrimination (think of the
strange Parents Involved98 case), etc. Fourth, it will assist the Court in
cases that involve new technologies as it is more flexible. And fifth one
can argue it promotes justice as shown by its use going back to the
Justice also known as the “people’s lawyer,” Justice Brandeis.99
On this last point, the Federalist Papers No. 51 contains language
calling for relatively equal checks and balances. Moreover, in Weems v.
United States, the Court said that: embodied in the Constitution’s ban
on cruel and unusual punishment is the “precept of justice that
punishment for crime should be graduated and proportioned to the
offense.”100
This does not mean all cases will be rightly decided. For example,
in Board of Education v. Earls, Justice Breyer authored a troubling
concurrence upholding random warrantless searches of student lockers
for drugs, if the student wanted to engage in extracurricular activities.101
But there was plenty of evidence it was just such activities that lessened
drug use.
And proportionality analysis has weaknesses. Initially, it provides
less certainty as to the result, compared to rule oriented tests. It also
leaves room for the Justices’ personal predilections since there are no
clear categories. But over time, case law can serve as precedent and
102 Compare Bowers v. Hardwick, 471 U.S. 186 (1986), with Lawrence v. Texas, 539 U.S.
558 (2003) (the Court reverses its position on the constitutionality of laws against gay sodomy).
103 BVerfG, 1 BvR 357/05, Feb. 15, 2006,
http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705en.html. Though the Court
discusses proportionality there, one could also view the case as establishing that human dignity is
an absolute right.
104 United States v. Curtiss Wright Corp., 299 U.S. 304 (1936) (President’s power to take
military or similar action to protect the nation is strong and derives from British origins).
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