Counting states

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 17-28

  Hills Jr , Roderick M ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 63849281560     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (68)

1. For a survey of the practice, see generally Note, State Law as "Other Law": Our Fifty Sovereigns in the Federal Constitutional Canon, 120 HARV. L. REV. 1670 (2007).
2. See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
3. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 160-62 (1968).
4. See, e.g., Lawrence v. Texas, 539 U.S. 558, 570-71 (2003);
5. id. at 593 n.3 (Scalia, J., dissenting).
6. See Tonja Jacobi, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus, 84 N.C. L. REV. 1089, 1091-93, 1106 (2006).
7. See, e.g., Enmund v. Florida, 458 U.S. 782, 792-93 (1982);
8. Coker v. Georgia, 433 U.S. 584, 595-96 (1977).
9. Penry v. Lynaugh, 492 U.S. 302, 331 (1989).
10. See, e.g., Atkins v. Virginia, 536 U.S. 304, 314-16 (2002) (noting that the execution of mentally retarded offenders had "become truly unusual" among the States, such that it "is fair to say that a national consensus has developed against it").
11. By enforcing the States' mainstream position against outlier states, the Court acts in a manner similar to a theory of judicial review described by Professor Michael Klarman. See Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 6 (1996) (describing the Court's typical role as suppressing outlier states that depart from national norms).
12. See Atkins, 536 U.S. at 312-13 (describing the Court's sequence of analysis as first, reviewing the stance of state legislatures, and second, "consider[ing] reasons for agreeing or disagreeing with their judgment").
13. See id. (gathering "objective evidence" from state legislatures, but ultimately relying on the Court's "own judgment" of capital punishment of the mentally retarded (quoting Penry, 492 U.S. at 331)).
14. See Jacobi, supra note 5, at 1123-49.
15. In Kennedy v. Louisiana, for instance, the Court seemed to presume that the "consensus" states failed to impose capital punishment for aggravated child rape because they had each made independent determinations that such a penalty was inconsistent with some important legal norm. 128 S. Ct. 2641, 2651-53 (2008). The obvious alternative explanation was that state legislatures wanted to avoid the threat that Coker, which had declared that rape of adults could not be a capital offense, might apply to child rape as well.
16. See id. at 2653. The Court rejected this theory by observing that "there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional."
17. Id. at 2656. But this statement adopts a presumption about the purposes of state inaction on child rape that Kennedy never bothers to justify or even explain. Kennedy declares that "[i]n the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators."
18. Id. at 2655. Although this statement superficially sounds like a textualist policy for construing state law, there were no state texts for Kennedy to construe; the Court was attributing a policy-setting purpose to state inaction - the failure to enact child rape laws -rather than state statutes. To presume that a state legislature wanted to constitutionalize a decency-based objection to a punishment merely because it failed to enact the law is not only bizarre as a matter of political science but is also inconsistent with the Court's longstanding cautions about inferring specific policies from a legislature's rejection of a particular proposal.
19. See, e.g., Solid Waste Agency v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 169-70 (2001).
20. 536 US. 304 (2002).
21. See Kennedy, 128 S. Ct. at 2651, 2653 ("When Atkins was decided... 30 States, including 12 noncapital jurisdictions, prohibited the death penalty for mentally retarded offenders; 20 permitted it."); Roper v. Simmons, 543 U.S. 551, app. B at 581 (2005) (listing twelve states without the death penalty: Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin);
22. Atkins, 536 U.S. at 313-15 (listing eighteen states that, at the time, permitted capital punishment generally but prohibited the execution of mentally retarded offenders: Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, and Washington).
23. See U.S. Census Bureau, Annual Estimates of the Population for the United States, Regions, States, and Puerto Rico: April 1, 2000 to July 1, 2007 (Dec. 27, 2007), http://www.census.gov/popest/states/tables/NST-EST2007-01.xls (spreadsheet showing the 2007 estimated population in the thirty "consensus" states as 153,441,285, which represents 50.9% of the 2007 estimated national population of 301,621,157).
24. 428 U.S. 153 (1976).
25. See id. at 175-76, 179-81 (plurality opinion) ("[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." (alteration in original) (quoting Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger, C.J., dissenting))).
26. See id.; Furman, 408 U.S. at 239-40 (per curiam).
27. See, e.g., Baze v. Rees, 128 S. Ct. 1520, 1526-27 (2008) (plurality opinion) (upholding the three-drug protocol for lethal injections used by at least thirty states). Chief Justice Roberts, author of the plurality opinion in Baze, noted: [I]t is difficult to regard a practice as "objectively intolerable" when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. . . . No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners.
28. Id. at 1532. The plurality acknowledged that "[t]his consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners,"
29. id. at 1532-33, but also observed that "[t]hroughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge,"
30. id. at 1538. Instead of relying on the Court to reform such methods, the plurality implied that evolving social norms themselves would push the legislatures toward humane methods of execution: Despite the absence of judicial intervention, "[o]ur society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today's consensus on lethal injection."
31. Id.
32. See, e.g., Kennedy v. Louisiana, 128 S. Ct. 2641, 2646, 2652 (2008) (declaring capital punishment for child rape unconstitutional in part because "44 States have not made child rape a capital offense").
33. 521 U.S. 702 (1997).
34. 530 U.S. 57 (2000).
35. 539 U.S. 558 (2003).
36. See Glucksberg, 521 U.S. at 705-06, 710-11 & n.8.
37. See Troxel, 530 U.S. at 71-72 (plurality opinion).
38. See id. at 60, 73 & n.*.
39. See Lawrence, 539 U.S. at 570-71, 578.
40. Furman v. Georgia, 408 U.S. 238 (1972);
41. see Stanley H. Friedelbaum, Advances and Departures in the Criminal Law of the States: A Selective Critique, 69 ALB. L. REV. 489, 518 (2006).
42. 410 U.S. 113 (1973); see Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 MICH. L. REV. 48, 53 (2000).
43. Lawrence G. Sager, Cool Federalism and the Life-Cycle of Moral Progress, 46 WM. & MARY L. REV. 1385, 1386 (2005).
44. See id. at 1386-88. Professor Sager distinguishes this norm-testing view of federalism from "hot federalism."
45. Id. at 1385. Hot federalism is intended to enable political subdivisions (states) with relatively homogeneous groups to enter a federal structure with other groups from different regions and with different religions or cultures, while preserving a more or less permanent division of policymaking among the different groups as well as between the different groups and the federal authority.
46. See id.
47. See id. at 1396-98.
48. Arizona, Arkansas, and Louisiana remain the only states to have enacted statutes authorizing "covenant marriages," which are, essentially, marriages with a two-year waiting period before a divorce may become effective. ARIZ. REV. STAT. §§ 25-901 to -906 (2007);
49. ARK. CODE §§ 9-11-801 to -811 (2008);
50. LA. REV. STAT. §§ 9:272 to 9:276, 9:307 (2008);
51. see Cecil VanDevender, Note, How Self-Restriction Laws Can Influence Societal Norms and Address Problems of Bounded Rationality, 96 GEO. L.J. 1775, 1791 (2008).
52. See Poe v. Ullman, 367 U.S. 497, 541-46, 554-55 (1961) (Harlan, J., dissenting).
53. Id. at 542.
54. Id.
55. U.S. CONST. amend XIV, § 1. For example, Justice Harlan was willing to recognize that the Constitution protected the right of married couples to use contraceptives. See Ullman, 367 U.S. at 539, 540-41 (Harlan, J., dissenting).
56. Ullman, 376 U.S. at 544 (alteration in original) (internal quotation marks omitted) (quoting Irvine v. California, 347 U.S. 128, 147 (1954) (Frankfurter, J., dissenting)).
57. Id. at 548. Connecticut's law was uniquely restrictive because it restricted the distribution as well as the use of contraceptives for the purpose of preventing pregnancy.
58. See id. at 554-55. On the distinctive nature of the Connecticut Comstock Act and for a detailed historical account of the "struggle" to overturn or repeal it,
59. see DAVID J. GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE79-130 (1994). By the time Ullman was decided, the statute had lapsed into desuetude and was enforced only against those distributors who advocated for and instructed in the use of contraceptives-like the birth control clinic in Griswold v. Connecticut.
60. See Griswold v. Connecticut, 381 U.S. 479, 505-06 (1965) (White, J., concurring); Ullman, 367 U.S. at 554 (Harlan, J., dissenting).
61. Harper v. Va. Bd. of Elections, 383 U.S. 663, 686 (1966) (Harlan, J., dissenting).
62. Lawrence v. Texas, 539 U.S. 558, 571-72 (2003).
63. See id. at 572-73.
64. For a commentary noting an analogous ambiguity in Lawrence between "desuetude" and "autonomy" readings, see Cass R. Sunstein, Liberty After Lawrence, 65 OHIO ST. L.J. 1059, 1061-63 (2004).
65. Tonja Jacobi seems to make this assumption in her attack on Eighth Amendment state counting. See Jacobi, supra note 5, at 1091-92.
66. On Anti-Federalist ideology, see, for example, JACKSON TURNER MAIN, THE ANTIFEDERALISTS: CRITICS OF THE CONSTITUTION, 1781-1788, at 130-31 (1961),
67. and see generally Saul Cornell, Aristocracy Assailed: The Ideology of Backcountry Anti-Federalism, 76 J. AM. HIST. 1148 (1990). On later Jacksonian reiterations of the same theme,
68. see, for example, JOHN ASHWORTH, 'AGRARIANS' & 'ARISTOCRATS': PARTY POLITICAL IDEOLOGY IN THE UNITED STATES, 1837-1846, at 36-37 (1983).