The rhetoric of constitutional law

Michigan Law Review

Volumn 100, Issue 8, 2002, Pages 2008-2035

  Chemerinsky, Erwin ^a  

^a NONE

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EID: 0345757607     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290432     Document Type: Article

References (155)

1. Written opinions by courts can be traced back to Roman law and were a key part of the English legal tradition that was followed in the United States. See Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371 n.1 (1995).
2. Id. at 1713 n.3.
3. This is not to say that every Supreme Court action has a written opinion. The Supreme Court's denials of certiorari, which dispose of over ninety-eight percent of cases brought to it, are not justified in a written opinion, though sometimes there are published dissents from the denial of certiorari. The law, however, is clear that a denial of certiorari is not precedent; it is in no way a decision of the issues in the case.
4. In working on this, I have come to realize that this Article is only the beginning of a much longer, book-length examination of the topic. I thus regard this Article as a rather tentative initial exploration of something I hope to work on for some time to come.
5. Actually, there is a fourth: a feedback loop where the speaker responds to the reaction of the audience. This, too, is worthy of consideration as to constitutional law, though in this Article, I just examine speaker, message, and audience.
6. See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEXAS L. REV. 1 (1994) (discussing whether it is the role of lower courts to attempt to predict what the higher court will do).
7. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987); Cass R. Sunstein, Statutory Interpretation in the Regulatory State, 103 HARV. L. REV. 405 (1989).
8. See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479 (1987); Cass R. Sunstein, Statutory Interpretation in the Regulatory State, 103 HARV. L. REV. 405 (1989).
9. Also, statutory rulings touch on every area of federal law, most of which are far beyond my field. Focusing on constitutional law is, in large part, a function of the desire to stay within my field.
10. Of course, even to speak of "correct" rulings is to beg the question of whether such a thing exists and this, too, inherently involves a value choice.
11. See, e.g., United States v. Nixon, 418 U.S. 683 (1974) (holding that executive privilege exists, but is not absolute and must yield to overriding needs for information).
12. See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (recognizing a fundamental right to marry); Loving v. Virginia, 388 U.S. 1 (1967).
13. Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942) (recognizing a fundamental right to procreate).
14. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) (recognizing a fundamental right to custody, including for unmarried fathers).
15. See, e.g., Moore v. City of East Cleveland, 431 U.S. 494 (1977) (invalidating a zoning ordinance that prevented a grandmother from living with her grandchildren).
16. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (declaring unconstitutional an order of grandparents' rights over the mother's objection).
17. See, e.g., Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965), discussed infra at text accompanying notes 39-45.
18. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833 (1992); Roe v. Wade, 410 U.S. 179 (1973).
19. See, e.g., Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261 (1990) (recognizing a right of competent adults to refuse medical treatment).
20. Atkins v. Virginia, 122 S.Ct. 2242 (2002) (holding that the death penalty for the mentally retarded is unconstitutional).
21. Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002) (holding that the Establishment Clause is not violated by vouchers used in parochial schools).
22. Bartnicki v. Vopper, 532 U.S. 514 (2001) (holding that the First Amendment precludes the imposition of civil liability for using or disclosing the contents of illegally intercepted communications on a person who was not involved in the interception, but who knew or had reason to know that the interception was unlawful).
23. See, e.g., United States v. Arvizu, 534 U.S. 266 (2002) (holding that reasonableness is to be determined based on the totality of the circumstances).
24. My point here is descriptive - that the Court hides its value choices. Although I believe that normatively this is undesirable and that greater candor would be preferable, I recognize that this is a separate argument and would require elaboration beyond the scope or length of this Article. For excellent discussions of this topic, see Scott Altman, Beyond Candor, 89 MICH. L. REV. 296 (1990); David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731 (1987).
25. My point here is descriptive - that the Court hides its value choices. Although I believe that normatively this is undesirable and that greater candor would be preferable, I recognize that this is a separate argument and would require elaboration beyond the scope or length of this Article. For excellent discussions of this topic, see Scott Altman, Beyond Candor, 89 MICH. L. REV. 296 (1990); David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731 (1987).
26. By formalism, I mean the approach to judicial decisionmaking that sees judges as reasoning from determinate premises to determinate results. For an excellent summary of the legal realists' critique of formalism, see MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1870-1960, at 182-230 (1992).
27. See, e.g., Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063 (1981); Jeffrey Shaman, The Constitution, the Supreme Court and Creativity, 9 HASTINGS CONST. L.Q. 257 (1982) ; Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 CAL. L. REV. 1482 (1985).
28. See, e.g., Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063 (1981); Jeffrey Shaman, The Constitution, the Supreme Court and Creativity, 9 HASTINGS CONST. L.Q. 257 (1982) ; Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 CAL. L. REV. 1482 (1985).
29. See, e.g., Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063 (1981); Jeffrey Shaman, The Constitution, the Supreme Court and Creativity, 9 HASTINGS CONST. L.Q. 257 (1982) ; Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 CAL. L. REV. 1482 (1985).
30. Justice Scalia offers a variant saying that interpretation should focus on "original meaning" as evidenced by practices at the time rather than on the Framers' intent. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997). Yet, discerning the "original meaning," deciding the level of abstraction at which to state it, and applying it all involve value choices. See Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. HAW. L. REV. 385, 391-401 (2000).
31. Justice Scalia offers a variant saying that interpretation should focus on "original meaning" as evidenced by practices at the time rather than on the Framers' intent. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (1997). Yet, discerning the "original meaning," deciding the level of abstraction at which to state it, and applying it all involve value choices. See Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. HAW. L. REV. 385, 391-401 (2000).
32. Seminole Tribe v. Florida, 517 U.S. 44 (1996) (holding that Congress may override the Eleventh Amendment when acting pursuant to section five of the Fourteenth Amendment but Congress may not override the Eleventh Amendment pursuant to any other constitutional authority).
33. Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (holding that the Eleventh Amendment bars a claim against a state for violating patents and that the Patent and Plant Protection Remedy Clarification Act is an unconstitutional exercise of Congress's authority under section five of the Fourteenth Amendment in authorizing federal court jurisdiction for such claims against state governments).
34. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) (holding that state governments may not be sued in federal court for violating the Age Discrimination in Employment Act and that the law is not a valid exercise of Congress's section five power that authorizes suits against state governments).
35. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (holding that state governments may not be sued for employment discrimination in violation of section one of the Americans with Disabilities Act).
36. Alden v. Maine, 527 U.S. 706 (1999) (holding that because of state sovereign immunity, a state government may not be sued in state court without its consent and that Maine could not be sued in Maine court for violating the Fair Labor Standards Act without Us consent).
37. See William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983).
38. See William A. Fletcher, A Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033 (1983); John J. Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 COLUM. L. REV. 1889 (1983).
39. 527 U.S. 706 (1999).
40. Id. at 749.
41. I develop the argument against sovereign immunity in Erwin Chemerinsky, Against Sovereign Immunity, 53 STAN. L. REV. 1201 (2001).
42. 469 U S. 528, 580 (1985) (Rehnquist, J., dissenting).
43. Planned Parenthood v. Casey, 505 U.S. 833, 943 (1992) (Blackmun, J., concurring in part, concurring in the judgment in part, and dissenting in part).
44. Judge Wald writes: "My hunch is that the bulk of the rhetoric of appellate opinions is spent in explaining why past cases do or do not apply." Wald, supra note 1, at 1403.
45. 381 U.S. 479, 481-82 (1965).
46. One commentator described Justice Douglas's approach by writing: "[In Griswold, Douglas] skipped through the Bill of Rights like a cheerleader - 'Give me a P . . . give me an R . . . an I . . .' and so on, and found P-R-I-V-A-C-Y as a derivative or penumbral right." Robert G. Dixon, Jr., The "New" Substantive Due Process and the Democratic Ethic: A Prolegmenon, 1976 BYU L. REV. 43, 84.
47. 262 U.S. 390 (1923) (holding that a state law prohibiting teaching of the German language violates right of parents to control the upbringing of their children).
48. 268 U.S. 510 (1925) (holding a state law prohibiting parochial school education unconstitutional as violating the right of parents to control the upbringing of their children).
49. Griswold, 381 U.S. at 481-82.
50. The first case to incorporate the First Amendment was Gitlow v. New York, 268 U.S. 652 (1925), decided shortly after Pierce.
51. In fact, an even more profound way in which Griswold shows the importance of the rhetoric of decisions is Douglas's vehement rejection of substantive due process, even though his opinion ultimately relies on it. Douglas finds privacy in the penumbra of the Bill of Rights. The Bill of Rights, however, is applied to the states through the Due Process Clause of the Fourteenth Amendment. Therefore, what keeps states from infringing privacy - as Douglas himself found it - is the Due Process Clause's prohibition against interference with liberty without a sufficient justification: substantive due process.
52. 395 U.S. 444 (1969) (per curiam).
53. See, e.g., Whitney v. California, 274 U.S. 357 (1927) (using a reasonableness test); Schenck v. United States, 249 U.S. 47 (1919) (articulating the "clear and present danger" test).
54. Brandenburg, 395 U.S. at 447.
55. Id. (citing Dennis v. United States, 341 U.S. 494, 507 (1951)).
56. Dennis, 341 U.S. at 510 (plurality opinion) (quoting United States v. Dennis, 183 F.2d 201, 212 (2d Cir. 1950)) (internal quotation marks omitted).
57. Dennis, 341 U.S. at 509 (plurality opinion).
58. See Gerald Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History, 27 STAN. L. REV. 719, 755 (1975) (describing the Brandenburg test as "the most speech-protective standard yet evolved by the Supreme Court").
59. Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964).
60. 109 U.S. 3 (1883).
61. 392 U.S. 409 (1968) (upholding the application of 42 U.S.C. § 1982 to private discrimination in housing).
62. 383 U.S. 745 (1966) (upholding a federal law protecting the right to travel from private interference). The six Justices, though, did not join in one opinion so as to make this a holding of the Court.
63. Heart of Atlanta, 379 U.S. at 280 (Douglas, J., concurring) ("I would prefer to rest the assertion of legislative power [on] § 5 of the Fourteenth Amendment . . . ."); id. at 293 (Goldberg, J., concurring).
64. 529 U.S. 598 (2000) (invalidating the civil damages provision of the Violence Against Women Act as exceeding the scope of Congress's powers under the Commerce Clause and under section five of the Fourteenth Amendment).
65. 517 U.S. 44 (1996).
66. 491 U.S. 1 (1989).
67. Seminole Tribe, 517 U.S. at 45.
68. 501 U.S. 808 (1991).
69. South Carolina v. Gathers, 490 U.S. 805 (1989).
70. Booth v. Maryland, 482 U.S. 496 (1987).
71. 347 U.S. 483 (1954) ("Brown I").
72. 163 U.S. 537 (1896).
73. Lochner v. New York, 198 U.S. 45 (1905) (invalidating a state's maximum-hour law).
74. Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241 (1964).
75. See, e.g., Alden v. Maine, 527 U.S. 706, 761 (1999) (Stevens, J., dissenting) (objecting to the Court's holding that state governments cannot be sued in state court without their consent); id. at 760 (Souter, J., dissenting) (same); Nat'l League of Cities v. Usery, 426 U.S. 833, 868 (1976) (Brennan, J., dissenting) (objecting to the majority's use of the Tenth Amendment as undue judicial activism).
76. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part); Cruzan v. Dir., Mo. Dep't of Health Services, 497 U.S. 261, 300 (1990) (Scalia, J., concurring).
77. See, e.g., United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995).
78. See, e.g., Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); Florida Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999).
79. Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (allowing takings challenges to regulations that were in place at the time property was acquired).
80. 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
81. 319 U.S. 624 (1943).
82. Some suggest that this might be attributed to the greater role of law clerks in drafting opinions. See BERNARD SCHWARTZ, DECISION: HOW THE SUPREME COURT DECIDES CASES 257-62 (1996) (lamenting the increased role of clerks in the Supreme Court's work).
83. This discussion is drawn from my earlier article: Chemerinsky, supra note 26.
84. Lee v. Weisman, 505 U.S. 577, 637 (1992) (Scalia, J., dissenting).
85. Austin v. Michigan State Chamber of Commerce, 494 U.S. 652, 685 (1990) (Scalia, J., dissenting).
86. Morgan v. Illinois, 504 U.S. 719, 748 (1992) (Scalia, J., dissenting).
87. Romer v. Evans, 517 U.S. 620, 653 (1996) (Scalia, J., dissenting).
88. Morrison v Olson, 487 U.S. 654, 726 (1988) (Scalia, J., dissenting).
89. Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 735 (1994) (Scalia, J., dissenting).
90. Grady v. Corbin, 495 U.S. 508, 542, 543 (1990) (Scalia, J., dissenting).
91. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 163 (1994) (Scalia, J., dissenting).
92. 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and concurring in the judgment).
93. Id. at 535.
94. Id. at 536 n.*, 537.
95. Planned Parenthood v. Casey, 505 U.S. 833, 981 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).
96. Id. at 995, 998.
97. I do not mean to imply that this is an exhaustive list of possible audiences. For example, there may be an international audience for Supreme Court decisions. See, e.g., MARY L. DUDZIAK, COLD WAR CIVIL RIGHTS: RACE AND THE IMAGE OF AMERICAN DEMOCRACY (2000) (arguing that the Cold War influenced the Court in the school desegregation decisions).
98. Brown v. Bd. of Educ., 349 U.S. 294 (1955) ("Brown II").
99. Id. at 301.
100. For a lengthy discussion of the failure to achieve desegregation and possible explanations, see GERALD N. ROSENBERG, THE HOLLOW HOPE 39-166 (1991).
101. Michael J. Klarman, Brown, Racial Change, and the Civil Rights Movement, 80 VA. L. REV. 7, 9 (1994).
102. Id. at 9.
103. Id.
104. Id.
105. 531 U.S. 288 (2001).
106. Id. at 935 (Thomas, J., dissenting).
107. 457 U.S. 830 (1982) (finding no state action when a private school that was almost totally subsidized by the government fired teachers because of their speech).
108. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM IN THE SUPREME COURT (1999); Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4 (1996) .
109. CASS R. SUNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM IN THE SUPREME COURT (1999); Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4 (1996) .
110. 410 U.S. 113, 163-64 (1973).
111. Id.
112. See, e.g., John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).
113. 384 U.S. 436 (1966).
114. 531 U.S. 98 (2000) (per curiam).
115. Id. at 109.
116. 534 U.S. 266 (2002). Among the factors the Court pointed to were the car being near a border where smuggling often occurs, the driver not waving at the police officer, the children looking uncomfortable, and the car being a minivan.
117. 532 U.S. 318 (2001).
118. 533 U.S. 27 (2001).
119. 274 U.S. 200,207 (1927).
120. Stephen Jay Gould, Carrie Buck's Daughter, 2 CONST. COMM. 331, 336 (1985).
121. 533 U.S. 656 (2001).
122. See, e.g., Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting) (criticizing the Court's reapportionment decisions on the grounds that they will jeopardize the Court's legitimacy); ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 12 (2d ed. 1986); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980).
123. See, e.g., Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting) (criticizing the Court's reapportionment decisions on the grounds that they will jeopardize the Court's legitimacy); ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 12 (2d ed. 1986); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980).
124. See, e.g., Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting) (criticizing the Court's reapportionment decisions on the grounds that they will jeopardize the Court's legitimacy); ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 12 (2d ed. 1986); JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980).
125. Daniel O. Conkle, The Legitimacy of Judicial Review in Individual Rights Cases: Michael Perry's Constitutional Theory and Beyond, 69 MINN. L. REV. 587, 588 (1985).
126. John M. Scheb II & William Lyons, Public Holds U.S. Supreme Court in High Regard, 77 JUDICATURE 273 (1994).
127. Id.
128. Id. at 273-74.
129. 531 U.S. 98 (2000).
130. Id. at 128-29 (Stevens, J., dissenting).
131. See Jeffrey Jones, Hispanics, Whites, Rate Bush Positively, While Blacks are Much More Negative, GALLUP POLL MONTHLY, June 2001, at 36.
132. 384 U.S. 641, 666 (1966) (Harlan, J., dissenting).
133. 521 U.S. 507 (1997) (declaring the Religious Freedom Restoration Act unconstitutional and holding that Congress under section five of the Fourteenth Amendment cannot expand the scope of rights or create new rights).
134. 482 U.S. 496 (1987).
135. 490 U.S. 805 (1989).
136. 501 U.S. 808 (1991).
137. 423 U.S. 362, 380 (1976).
138. See G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815-1835, at 186 (abr. ed. 1991).
139. 373 U.S. 83, 84 (1963) (holding that prosecutors must disclose to defendants potentially exculpatory evidence).
140. 358 U.S. 1 (1958).
141. Id. at 18.
142. Id. at 17 (quoting Smith v. Texas, 311 U.S. 128, 132 (1940)).
143. 505 U.S. 833 (1992). For a fascinating account of how this opinion came to be written, see EDWARD LAZARUS, CLOSED CHAMBERS 459-86 (1999).
144. Id. at 844.
145. 347 U.S. 483 (1954).
146. See RICHARD KLUGER, SIMPLE JUSTICE 679-99 (1975); G. EDWARD WHITE, EARL WARREN 165-69 (1982).
147. See RICHARD KLUGER, SIMPLE JUSTICE 679-99 (1975); G. EDWARD WHITE, EARL WARREN 165-69 (1982).
148. The unanimity in desegregation cases ended in Milliken v. Bradley, 418 U.S. 717 (1974) (holding 5-4, that inter-district desegregation remedies are permissible only if there is proof of an inter-district violation).
149. 418 U.S. 683 (1974).
150. For an account of how Nixon was written within the Court, see BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 301-47 (1979).
151. Nixon apparently raised the possibility of disobedience with his top advisers and they pointed to the unanimity of the decision and its clear order in persuading him to comply. See BOB WOODWARD & CARL BERNSTEIN, THE FINAL DAYS 264 (1976).
152. 497 U.S. 547 (1990).
153. 395 U.S. 367 (1969).
154. See, e.g., Gayle v. Browder, 352 U.S. 903, aff'g mem. 142 F.Supp. 707 (D. Ala. 1956) (municipal bus system); Holmes v. City of Atlanta, 350 U.S. 879, vacating mem. 223 F.2d 93 (5th Cir. 1955) (municipal golf course); Mayor and City Council of Baltimore City v. Dawson, 350 U.S. 877, aff'g mem. 220 F.2d 386 ( 4th Cir. 1955) (public beaches).
155. The cases did not obviously flow from Brown precisely because Brown focused on education and thus could not be used by itself to explain why segregation of beaches, buses, or golf courses is unconstitutional.