The unexceptionalism of "evolving standards"

UCLA Law Review

Volumn 57, Issue 2, 2009, Pages 365-419

  Lain, Corinna Barrett ^a  

^a UNIVERSITY OF RICHMOND   (United States)

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EID: 77956355580     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (536)

1. Compare, e.g., 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, 1113 (2006)
2. Declaring an action unconstitutional because a significant number of states prohibit the practice leaves the Supreme Court enforcing constitutional protections only in cases where they are least needed.
3. Michael S. Moore, Morality in Eighth Amendment Jurisprudence, 31 HARV. J.L. & PUB. POL'Y 47,63 (2008)
4. What is the worth of a right good against the majority when that same majority interprets that right?
5. Tom Stacy, Cleaning Up the Eighth Amendment Mess, 14 WM. & MARY BILL RTS. J. 475, 520 (2005)
6. lamenting need for constitutional protection "that is countermajoritarian in character and that does not blithely accept the prevailing outcome of political processes as fixing the constitutional baseline"
7. JOHN HART ELY, DEMOCRACY AND DISTRUST 69 (1980) ("[I]t makes no sense to employ the value judgments of the majority as the vehicle for protecting minorities from the value judgments of the majority.
8. William J. Brennan, Jr., Constitutional Adjudication and the Death Penalty: A View From the Court, 100 HARV. L. REV. 313, 328-29 (1986)
9. At the outset, it seems to me beyond dispute that we should not permit the legislature to define for us the scope of permissible punishment.It would effectively write the clause out of the Bill of Rights were we to permit legislatures to police themselves by having the last word on the scope of the protection that the clause is intended to secure against their own overreaching.")
10. Erwin Chemerinsky, Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 88 n.200 (1989) (The preferences of the majority should not determine the nature of the eighth amendment or of any other constitutional right."). For two of these rulings, see infra note 4.
11. U.S. CONST, amend. VIII ("nor cruel and unusual punishments inflicted").
12. See, e.g., Roper v. Simmons, 543 U.S. 551, 562-64 (2005) (discussing the importance of a "national consensus" in prior Eighth Amendment "evolving standards" cases, and noting that "(t]he beginning point [of analysis under the "evolving standards" doctrine] is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question
13. accord Atkins v. Virginia, 536 U.S. 304, 314-16, 321-23 (2002)
14. Stanford v. Kentucky, 492 U.S. 361, 370-73 (1989)
15. Penry v. Lynaugh, 492 U.S. at 331, 334-35 (1989)
16. McCleskey v. Kemp, 481 U.S. 279,300 (1987).
17. For an excellent discussion of death penalty politics, see Stephen B. Bright, The Politics of Capital Punishment: The Sacrifice of Fairness for Executions, m AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT 127 Games R. Acker, Robert M. Bohm 6k Charles S. Lanier eds., 2d ed. 2003)
18. Glenn L Pierce & Michael L Radelet, The Role and Consequences of the Death Penalty in American Politics, 18 N.Y.U. REV. L & SOC. CHANGE 711 (1990)
19. For criticism of the "evolving standards" doctrine, see supra text accompanying note 1.
20. See, e.g., Penry, 492 U.S. at 351 (Scalia, J., dissenting) ("If [a punishment] is not unusual, that is, if an objective examination of laws and jury determinations fails to demonstrate society's disapproval of it, the punishment is not unconstitutional even if out of accord with the theories of penology favored by the Justices of this Court.
21. Bradford R. Clark, Constitutional Structure, Judicial Discretion, and the Eighth Amendment, 81 NOTRE DAMEL. REV. 1149,1200 (2006) ("Of course, even if a punishment is 'cruel,' it must also be 'unusual' to trigger scrutiny under the Eighth Amendment.
22. William C. Heffernan, Constitutional Historicism: An Examination of the Eighth Amendment Evolving Standards of Decency Test, 54 AM. U. L. REV. 1355,1414 (2005)
23. acknowledging the textualist claim that "the term 'unusual' provides a unique license for judicial appeals to changing convictions and practices")
24. Akhil Reed Amar & Vikram David Amar, Eighth Amendment Mathematics (Part One): How the Atkins Justices Divided When Summing, FINDLA W.June 28,2002, http://writ.news.findlaw.com/amar/20020628.html ("[T]he word 'unusual' in this clause invites attention to the way standards of decency evolve over time.
25. see also Jacobi, supra note 1, at 1098 ("A response to this criticism [of majoritarian protection] is that, while this may be true of constitutional interpretation generally, the phrase 'cruel and unusual' necessitates an inquiry into social mores and practices to determine what is unusual.
26. Doctrine can be majoritarian in a number of different ways. My focus here is on doctrine that is majoritarian in the same sense that the "evolving standards" doctrine is majoritarian-it uses the majority position of the states to determine constitutional protection.
27. See, e.g., Hugo Adam Bedau, Interpreting the Eighth Amendment: Principled vs. Populist Strategies, 13 T.M. COOLEY L REV. 789,810 (1996)
28. We do not attempt to define or explain 'due process of law,'equal protection of the law,'an impartial jury,' or any other of the fundamental, normative constitutional concepts by making an appeal to what the majority believes or acceptsOut of considerations of consistency alone, therefore, we should hesitate to incorporate majoritarian considerations into our interpretation of the Eighth Amendment.
29. James W. Ellis, Disability Advocacy and the Death Penalty: The Road From Penry to Atkins, 33 N.M. L REV. 173,178 (2003)
30. But while the Court, in interpreting other parts of the Constitution, occasionally observes that a particular state's statute is unique or unusual, it is only in the context of the Punishments Clause of the Eighth Amendmentthat such comparisons are given doctrinal significance. This unique feature of Eighth Amendment jurisprudence derives, of course, from the text's prohibition on the infliction of 'cruel and unusual punishments.
31. Heffernan, supra note 5, at 1362-63 (describing "evolving standards" doctrine as a "conspicuous exception" to the Supreme Court's approach in other doctrinal areas and advocating that it be used elsewhere
32. Stacy, supra note 1, at 478,494-96, 524-27
33. This deference to majoritarian judgments, which gives rise to the Justices' publicized jurisdiction-counting debates, conflicts with the independent role the Court has assumed in interpreting other countermajoritarian constitutional rights," contrasting the Supreme Court's approach under the Eighth Amendment and other constitutional provisions.
34. see also Joseph L. Hoffmann, The "Cruel and Unusual Punishment" Clause: A Limit on the Power to Punish or Constitutional Rhetoric?, m THE BILL OF RIGHTS IN MODERN AMERICA 140-41
35. David J. Bodenhamer & James W. Ely eds., 1993)
36. contrasting the majoritarian nature of constitutional inquiry under the Eighth Amendment with that undertaken in the First and Fourth Amendment contexts.
37. See, e.g., Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 HARV. L. REV. 246,266 & n.125 (2008) ("[I]t is unusual for the Court to acknowledge the relevance of the national consensus," noting in accompanying footnote that "(t]he Court occasionally does refer to such a consensus in the Eighth Amendment context, but the word 'unusual' in the amendment provides a textual hook for that approach in these cases." (citations omitted))
38. Kermit Roosevelt III, Polyphonic Stare Decisis: Listening to Non-Article 111 Actors, 83 NOTRE DAME L. REV. 1303, 1331 (2008)(arguing that constitutional norms are influenced by the prevailing social climate and that in some cases, "perhaps limited to the Eighth Amendment," the unusualness of a practice should itself be reason to reconsider precedents in light of a new state of affairs)
39. see also John Ferejohn & Larry D. Kramer, Judicial Independence in a Democracy: Instiluaonalizingjudicial Restraint, m NORMS AND THE LAW 161-207
40. John N. Droback ed., 2006) (discussing "doctrinal limitations" on the Supreme Court's countermajoritarian capacity, such as principles of justiciability, federalism, and legislative deference in standards of review, but not mentioning state consensus-based doctrine
41. JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH 12 (2006)
42. discussing the possibility of the Supreme Court consulting state legislation for constitutional views of national majorities, citing only the "evolving standards" doctrine as an example
43. William N. Eskridge, Jr., America's Statutory "Constitution," 41 U.C. DAVIS L. REV. 1 (2007)
44. arguing that legislation has become the primary source of constitutional values in our society, but not mentioning state legislation as a doctrinal phenomenon outside the Eighth Amendment and select due process cases
45. Ernest A. Young, The Constitution Outside the Constitution, 117 YALE L.J. 408 (2007)
46. discussing state legislation as a way of protecting constitutional values outside the Constitution, but not mentioning state legislation as an actual source of constitutional norms
47. Keith E Whittington, Extrajudicial Constitutional Interpretation: Three Objections and Responses, 80 N.C. L. REV. 773 (2002)
48. discussing various ways that nonjudical actors interpret the constitution, including the President, Congress, and others, but not mentioning state legislatures as a source of constitutional interpretation.
49. A few scholars recognize the Court's use of explicitly majoritarian doctrine in the substantive due process area.
50. See infra text accompanying note 18. Otherwise, 1 have found just four discussions on point. Two are seminal pieces, excellent although limited in scope. See Barry Friedman, Dialogue and Judicial Review, 91 MICH. L REV. 577, 592-607 (1993)
51. focusing discussion on Sixth Amendment right to trial by jury context while recognizing larger phenomenon)
52. Steven L. Winter, Tennessee v. Garner and the Democratic Practice of Judicial Review, 14 N.Y.U. REV. L. & SOC. CHANGE 679,683-91 (1986)(focusing discussion on Fourth Amendment context while recognizing larger phenomenon). The other two are recent works that incorporate these early insights into related discussions.
53. See Roderick M. Hills, Jr., Counting States, 32 HARV. J.L & PUB. POL'Y 17 (2009) (arguing that to the extent that the Supreme Court counts states, it does so as a limit on, rather than source of, constitutional law and as such, is consistent with federalism principles)
54. Note, State Law as "Other Law": Our Fifty Sovereigns in the Federal Constitutional Canon, 120 HARV. L REV. 1670 (2007)(comparing Supreme Court's reliance on state counting and foreign law).
55. See supra text accompanying note 5 (discussing textual defense of "evolving standards" doctrine based on words "cruel and unusual" in the Eighth Amendment (emphasis added))
56. See, e.g., Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. PA. L REV. 927 (2006)
57. (discussing role that social movements play in constitutional understanding); Barry Friedman, The Politics of Judicial Review, 84 TEX. L REV. 257 (2005)(arguing that normative constitutional theory about judicial review will remain impoverished until it incorporates the nonlegal influences that motivate judges to act as they do)
58. Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 MICH. L REV. 431 (2005)
59. discussing influence of broader sociopolitical mores on Supreme Court's decisions in Brown v. Board of Education and Lawrence v. Texas)
60. Larry Kramer, Generating Constitutional Meaning, 94 CA. L. REV. 1439, 1441 (2006).(stressing extralegal influences on the shape of constitutional law and lauding Reva Siegel's work on constitutional culture and social movements as "the new center of academic work in constitutional theory")
61. Robert C. Post, Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4 (2003)
62. discussing dialectical relationship between culture and constitutional law)
63. see also Sunstein, supra note 8 (discussing District of Columbia v. Heller as a decision that tracked majority preferences although it was formally decided on originalist grounds).
64. See Younger v. Harris, 401 U.S. 37,44-45 (1971) ("[A] proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as 'Our Federalism'⋯").
65. See RODNEY L. MOTT, DUE PROCESS OF LAW § 54, at 142 (1926) (noting that American colonists saw the Due Process Clause as "a catch-all phrase for human rights radier than a phrase with a well defined content")
66. see also Shawn P. Davisson, Balancing the Scales of " Confidential" Jwtice, 38 MCGEORGE L REV. 679, 688 (2007) ("The guarantee of due process is often portrayed as a catchall provision⋯. ").
67. For a discussion of the literature, see James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality m the Origins of Substantive Due Process, 16 CONST. COMMENT. 319 (1999).
68. ELY, supra note 1, at 18.
69. Lochner v. New York, 198 U.S. 45 (1905).
70. See, e.g., W. Coast Hotel Co. v. Parrish, 200 U.S. 379, 399 (1937) (upholding minimum wage legislation against substantive due process challenge, reasoning, "The legislature had the right to consider that its minimum wage requirements would be an important aid in carrying out its policy of protection. The adoption of similar requirements by many States evidences a deep-seated conviction both as to the presence of the evil and as to the means adapted to check it.").
71. See Daniel O. Conkle, Three Theories of Substantive Due Process, 85 N.C. L REV. 63,124-33 (2006) (recognizing implicit doctrine of "evolving national values" in Supreme Court's most recent substantive due process cases, and pointing to Eighth Amendment "evolving standards" doctrine as precedent and guidance for developing the doctrine)
72. Michael J. Gerhardt, Nonjudicial Precedent, 61 VAND. L. REV. 714, 741-42 (2008) (recognizing state practice as a constitutional benchmark in both the Eighth Amendment and substantive due process contexts)
73. Michael W. McConnell, Tradition and Constitutionalism Before the Constitution, 1998 U. ILL. L REV. 173, 174 (noting that while constitutional theory has been dominated by originalist and moral reasoning approaches, in practice a third approach has appeared-one grounded on "the gradually evolving moral principles of the nation" and exemplified by the Court's most recent substantive due process decisions)
74. Robert F. Nagel, Disagreement and Interpretation, LAW & CONTEMP. FHOBS. Autumn 1993, at 11, 19 (recognizing the role of state legislation in the use of "tradition" to define due process rights)
75. Benjamin J. Roesch, Crowd Control: The Majoritarian Court and the Reflection of Public Opinion in Doctrine, 39 SUFFOLK U. L REV. 379,382 (2006) (noting "striking similarities" between substantive due process analysis in recent cases and Eighth Amendment "evolving standards" analysis, and absence of similar doctrinal developments elsewhere)
76. Stacy, supra note 1, at 496 (noting that at times, "the Court has appealed to majoritarian judgments as defining the scope of fundamental substantive due process rights").
77. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (noting that fundamental rights may not be infringed '"no matter what process is provided, unless die infringement is narrowly tailored to serve a compelling state interest"' (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)))
78. see also John E. Nowak & Ronald D. Rotunda, Constitutional Law 471-72 (7th ed. 2004) (discussing the six categories of rights thus far deemed fundamental).
79. See, e.g., Glucksberg, 521 U.S. at 722 (noting that only fundamental rights require "more than a reasonable relation to a legitimate state interest to justify the action"); see also NOWAK & ROTUNDA, supra note 19, at 471-72 (discussing substantive due process standards of review).
80. See, e.g., Roe v. Wade, 410 U.S. 113 (1973) (recognizing the right to privacy as fundamental in context of abortion); Griswold v. Connecticut, 381 U.S. 479 (1965) (recognizing the right to privacy as fundamental in context of access to contraceptives)
81. see also Post, supra note 11, at 88-91 (discussing the trend prior to 1980s, particularly in the area of sexuality, of identifying liberty interests "by directly evaluating the intrinsic value of liberty itself")
82. Glucksberg, 521 U.S. at 721 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
83. Id. at 711 ('"[T]he primary and most reliable indication of [a national] consensus is ⋯ the pattern of enacted laws.'" (quoting Stanford v. Kentucky, 492 U.S. 361,373 (1989)).
84. Stanford, 492 U.S. at 373 ("(T]he primary and most reliable indication of consensus is⋯ the pattern of enacted laws.").
85. 539 U.S. 558 (2003).
86. 543 U.S. 551 (2005).
87. See Lawrence, 539 U.S. at 578.
88. See Roper, 543 U.S. at 570-74.
89. Compare Lawrence, 539 U.S. at 572, with Roper, 543 U.S. at 564-65.
90. Compare Lawrence, 539 U.S. at 571-73, with Roper, 543 U.S. at 565-67.
91. Compare Lawrence, 539 U.S. at 573, with Roper, 543 U.S. at 565-66.
92. Compare Lawrence, 539 U.S. at 571-72 (recognizing an "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex"), with Roper, 543 U.S. at 560-61 (referring to "the evolving standards of decency that mark the progress of a maturing society" to determine whether a punishment violates the Cruel and Unusual Punishments Clause).
93. See, e.g., Klarman, supra note 11 (discussing Lawrence as a product of broader sociopolitical mores)
94. Cass R. Sunstein, What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage, 2003 SUP. Ct. REV. 27, 27 (discussing Lawrence as a reminder that "members of the Supreme Court live in society, and they are inevitably influenced by what society appears to think").
95. See, e.g., Post, supra note 11 (discussing Lawrence as a cultural product and opening bid in a conversation with the American public about homosexual rights).
96. See NEAL DEVINS & LOUIS FISHER, THE DEMOCRATIC CONSTITUTION 3,143-44 (2004) (discussing Laurence as an example of how "nearly all landmark Supreme Court decisions cannot be understood without first paying attention to the politics surrounding them")
97. LAWRENCE G. SAGER, Justice in Plainclothes: A Theory of American Constitutional Practice 222-25 (2004) (discussing Lawrence as an example of the democratic nature of judicial review)
98. Richard A. Posner, Foreword: A Political Court, 119 HARV. L REV. 31 (2005) (discussing Lawrence as a reflection of the Justices' political preferences)
99. Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U. ClN. L REV. 1257,1300-03 (2004) (discussing Lawrence as a reflection of mainstream public opinion from a political science perspective).
100. See, e.g., Balkin & Siegel, supra note 11, at 948-49 (discussing Lawrence v. Texas as an example of how social movements "can change the meaning of constitutional norms")
101. William N. Eskridge, Jr., Lawrence's Jurisprudence of Tolerance: Judicial Review to Lower the Stakes of Identity Politics, 88 MINN. L. REV. 1021,1026 (2004) (discussing Lawrence as evidence that the Court "is responsive to the constitutional politics of social movements")
102. Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 COLUM. L REV. 1955,1961 (2006) (discussing Lawrence as an example of how "courts are inescapably involved in absorbing, evaluating, and influencing changes to popular judgments regarding social groups").
103. This is not to say that majoritarian doctrine was never mentioned. Occasionally it was, but more often it wasn't, or was mentioned but discounted as a reason for the Court's decision.
104. See, e.g., DEVINS & FISHER, supra note 35, at 139-44 (discussing state positions on same-sex sodomy prohibitions, but not mentioning the Court's reliance on those positions in its opinion);
105. SAGER, supra note 35, at 223-24 ("Nor did the Court in Lawrence bend to the chore of aligning its judgment with the process of democratic choice ⋯ When the claims of John Geddes Lawrence and Tyron Garner were presented to the Court, what mattered was not the number of electoral votes that sponsored them mellip;.");
106. Sunstein, supra note 33, at 49-50 (discussing various readings of Lawrence, including one reviving common law doctrine of desuetude, but viewing that doctrine as a procedural protection against arbitrary enforcement within a jurisdiction rather than as a substantive constraint on national outliers, and in any event doubting its current vitality, noting that "[m]ost American courts do not accept that idea in express terms")
107. see also Posner, supra note 35, at 85 (dismissing the Supreme Court's consensus-based decisionmaking in Lawrence as "an effort to ground controversial Supreme Court judgments in something more objective than the Justices' political preferences and thus to make the Court's political decisions seem less political").
108. See Roper v. Simmons, 543 U.S. 551, 554 (2005); Lawrence v. Texas, 539 U.S. 558, 561 (2003).
109. 478 U.S. 186(1986).
110. Id. at 193-94. The Court continued, "Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."
111. Id. at 194.
112. See Washington v. Glucksberg, 521 U.S. 702, 710 (1997) ("In almost every State-indeed, in almost every western democracy-it is a crime to assist a suicide.").
113. See Cruzan v. Mo. Dep't of Health, 497 U.S. 261, 284 (1990) (relying on procedure "[a]t common law and by statute in most states" to validate state regulation of third-party decisions to terminate medical treatment).
114. See Michael H. v Gerald D., 491 U.S. 110, 125-27 (1989) (examining state statutes to support the conclusion that "the ability of a person in Michael's position to claim paternity has not been generally acknowledged").
115. See Troxel v. Granville, 530 U.S. 57, 71 (2000) ("Significantly, many other States expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) {it} to the concerned third party.").
116. See, e.g., Reno v. Flores, 507 U.S. 292, 303 (1993) (rejecting substantive due process challenge to detention of juvenile aliens stating, "(tjhe mere novelty of such a claim is reason enough to doubt that 'substantive due process' sustains it; the alleged right certainly cannot be considered 'so rooted in the traditions and conscience of our people as to be ranked as fundamental'")
117. see also Moore v. City of East Cleveland, 431 U.S. 494, 503-05 (1977) (invalidating a statute limiting housing to nuclear families in light of "this Nation's history and tradition" of supporting extended family households).
118. I credit Pam Karlan, with thanks, for bringing this area to my attention.
119. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996) ("Only when an award can fairly be categorized as 'grossly excessive' in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.")
120. TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 453-54 (1993)
121. The Due Process Clause of the Fourteenth Amendment imposes substantive limits 'beyond which penalties may not go.'" (quoting Seaboard Air Line Ry. v. Seegers, 207 U.S. 73, 78 (1907))).
122. 517 US. 559.
123. See id. at 574-75 (discussing three guideposts).
124. See supra note 49.
125. See, e.g., Gore, 517 U.S. at 584 (comparing sanction imposed on BMW against statutory fines available under Alabama and New York law).
126. Id. at 583.
127. Id. at 580-81.
128. See, e.g., State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,425 (2003) (explaining that the Supreme Court in Gore "further referenced a long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish").
129. See Gore, 517 U.S. at 581 ("Some 65 different enactments during the period between 1275 and 1753 provided for double, treble, or quadruple damages.")
130. supra note 54.
131. See, e.g., Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24 (1991) (upholding punitive damages award more than four times the amount of compensatory damages but calling it "close to the line" of constitutional violation)
132. see also Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2634 (2008) (polling states to support imposition of a maximum punitive-to-compensatory damages ratio as a matter of maritime common law and noting that under facts of that case, the maritime limit may be "the outermost limit of the due process guarantee" as well (quoting Campbell, 538 U.S. at 425)).
133. Baker, 128 S. Ct. at 2626-27.
134. The Supreme Court has couched the doctrine this way.
135. See, e.g., Roper v. Simmons, 543 U.S. 551, 561 (2005) ("[W]e have established the propriety and affirmed the necessity of referring to 'the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual.")
136. accord Atkins v. Virginia, 536 U.S. 304,311-12(2002).
137. See NOWAK & ROTUNDA, supra note 19, at 464-67 (discussing the Court's incorporated provisions of the Bill of Rights in substantive due process chapter).
138. See infra text accompanying notes 72-77.
139. See NOWAK & ROTUNDA, supra note 19, at 464 ("A few Justices, most notably Justice Black, argued that the history of the Fourteenth Amendment indicated that all of the Bill of Rights were to be made directly applicable to the states."). In fairness, Justice Black's preferred position was to rely on the Privileges and Immunities Clause for total incorporation, but the Slaughter-House Cases rendered that an impossibility, leaving him with only the Due Process Clause to support his position.
140. See Adamson v. California, 332 U.S. 46, 74-75 (1947)
141. (Black, J., dissenting) (arguing for total incorporation under Due Process Clause while noting that the Fourteenth Amendment was "sufficiently explicit to guarantee that thereafter no state could deprive its citizens of the privileges and protections of the Bill of Rights")
142. The Slaughter-House Cases, 83 U.S. 36 (1872) (limiting Privileges and Immunities Clause to privileges of national citizenship).
143. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 149 (1968) ("Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which-were they to be tried in a federal court-would come within the Sixth Amendment's guarantee.").
144. See generally NOWAK & ROTUNDA, supra note 19, at 465 (describing selective incorporation as the concept "whereby a provision of the Bill of Rights is made applicable to the states if the Justices are of the opinion that it was meant to protect a 'fundamental' aspect of liberty")
145. supra Part I.A.I (discussing substantive due process fundamental rights doctrine).
146. Indeed, the Court has articulated the same standards in both areas and even treated precedent interchangeably. Compare Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (describing fundamental right in substantive due process context as that which is "deeply rooted in this Nation's history and tradition"), with Palko v. Connecticut, 302 U.S. 319, 325 (1937) (describing fundamental right in incorporation context as that which is "so rooted in the tradition and conscience of our people as to be ranked as fundamental").
147. See also Bowers v. Hardwick, 478 U.S. 186,191-92 (1986) (quoting Palko in the substantive due process context).
148. 367 US. 643 (1961).
149. See id. at 655 ("We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.")
150. Corinna Barrett Lain, Countermajoritarian Hero or Zero? Rethinking the Warren Court's Role in the Criminal Procedure Revolution, 152 U. PENN. L REV. 1361,1372-73 (2004) (discussing Mapp's role in the criminal procedure revolution).
151. Prior to selective incorporation, the Court used a "fundamental fairness" approach to incorporation. Under the fundamental fairness approach, the Court incorporated only those applications of a right that were deemed fundamental, rather than the right itself. See NOWAK & ROTUNDA, supra note 19, at 462-67 (comparing selective incorporation and fundamental fairness doctrines).
152. Cohen v. Hurley, 366 U.S. 117, 130 n.ll (1961) (considering a due process claim in the context of attorney disbarment proceedings, defining reasonableness "in much the same way that a strong consensus of views in the States is relevant to a finding of fundamental unfairness")
153. see also District of Columbia v. Clawans, 300 U.S. 617, 628 (1937) (noting in the context of incorporation of the right to a jury that "[d]oubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments")
154. Powell v. Alabama, 287 U.S. 45, 73 (1932) (noting in the context of incorporation of the right to counsel that "[a] rule adopted with such unanimous accord reflects, if it does not establish, the inherent right to have counsel appointed, at least in cases like the present, and lends convincing support to the conclusion we have reached as to the fundamental nature of that right").
155. 338 US. 25 (1949).
156. See id. at 29-30 (rejecting the claim that the exclusionary rule was fundamental and thus applied to states). The Court in Wolf also counted states to support its ruling.
157. See id. at 33-39 (surveying state positions on the exclusionary rule in Tables A-J). Mapp, 367 US. at 651.
158. Id. at 660 ('"Moreover, the experience of the states is impressiveThe movement towards the rule of exclusion has been halting but seemingly inexorable.'" (quoting Elkins v. United States, 364 U.S. 206,218-19 (I960))).
159. Most of these were criminal procedure protections. See NOWAK & ROTUNDA, supra note 19, at 397 ("Of the first eight Amendments the Supreme Court has held explicitly that only three of the individual guarantees are inapplicable to the states.")
160. id. at 465-67 (discussing in detail individual provisions incorporated); infra text accompanying notes 73-77.
161. See Gideon v. Wainwright, 372 U.S. 335, 345 (1963) (incorporating the Sixth Amendment right to counsel, stating that "Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argued that Betts was 'an anachronism when handed down' and that it should now be overruled. We agree.").
162. See Duncan v. Louisiana, 391 U.S. 145,154 (1968) (incorporating the Sixth Amendment right to a jury, noting that "(t]he laws of every State guarantee a right to jury trial in serious criminal cases; no State has dispensed with it; nor are there significant movements underway to do so").
163. See Pointer v. Texas, 380 U.S. 400, 402 (1965) (incorporating the Sixth Amendment confrontation clause, reasoning that "the right of confrontation [i]s 'one of the fundamental guaranties of life and liberty,' and⋯ 'guarded against legislative and judicial action by provisions in the constitution of the United States and in the constitutions of most, if not of all, the states composing the Union"' (quoting Kirby v. United States, 174 U.S. 47,55,56 (1899))).
164. See Klopfer v. North Carolina, 386 U.S. 213, 225-26 (1967) ("That this right was considered fundamental at this early period in our history is evidenced by its guarantee in the constitutions of several of the states of the new nation, as well as by its prominent position in the Sixth Amendment. Today, each of the 50 States guarantees the right to a speedy trial to its citizens." (internal citation omitted)).
165. See Benton v. Maryland, 395 U.S. 784, 795 (1969) (incorporating the Fifth Amendment double jeopardy clause and explaining, 'Today, every state incorporates some form of the prohibition in its constitution or cornmon law")
166. Griffin v. California, 380 U.S. 609,611 n.3 (1965) (incorporating the Fifth Amendment protection against comments on the defendant's failure to testify and explaining that "(t]he overwhelming consensus of the States⋯ is opposed to allowing comment on the defendant's failure to testify. The legislatures or courts of 44 states have recognized that such comment is, in light of the privilege against self-incrimination, 'an unwarrantable line of argument."' (quoting State v. Howard, 14 S.E. 481,483 (S.C. 1892))).
167. Duncan v. State of Louisiana, 391 U.S. 145,149 (1968)
168. accord Palko v. Connecticut, 302 U.S. 319, 325 (1937) (asking whether "a fair and enlightened system of justice would be impossible" without the protection at issue).
169. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)
170. accord Dist. Att'y's Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2332 (2009)
171. Medina v. California, 505 U.S. 437, 449 (1992)
172. Speiser v. Randall, 357 U.S. 513, 523 (1958). Indeed, some of the Court's substantive due process decisions use this articulation of the standard
173. See, e.g., Lawrence v. Texas, 539 U.S. 558, 593 (2003)
174. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)
175. see also supra text accompanying notes 22 and 63 (discussing standards for identifying fundamental rights in substantive due process and selective incorporation contexts).501 U.S. 624 (1991). In accordance with Arizona law, the prosecutor in Schad's case had advanced both premeditated and felony-murder theories to support the first-degree murder conviction, and the trial court had not required the jury to agree on one of tlie two theories, as both satisfied die mens rea requirement for first-degree murder.
176. See id. at 624,629.
177. Id. at 640.
178. Id.
179. Id. at 642 ("[T]here is sufficiently widespread acceptance of die two mental states as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade us that Arizona has not departed from the norm."). Id. (quoting Patterson v. New York, 432 U.S. 197,202 (1977)).
180. See Clark v. Arizona, 548 U.S. 735, 748-52 (2006) (rejecting defendant's claim that due process entitled him to at least the M'Nqghten test on issue of insanity, surveying states and concluding, "[w]ith this varied background, it is clear that no particular formulation has evolved into a baseline for due process, and that the insanity rule, like the conceptualization of criminal offenses, is substantially open to state choice").
181. See Montana v. Egelhoff, 518 U.S. 37, 46-49, 51 (1996) (rejecting defendant's claim that due process entitled him to submit evidence of intoxication on the issue of his mental state at the time of the offense, surveying states, and concluding: "Although the rule allowing a jury to consider evidence of a defendant's voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance, to qualify as fundamental, especially since it displaces a lengthy common-law tradition which remains supported by valid justifications today.").
182. See Schall v. Martin, 467 U.S. 253, 267-68 (1984) (rejecting defendant's claim that due process prevented pretrial detention of juveniles, surveying states and concluding, "[i]n light of the uniform legislative judgment that pretrial detention of juveniles properly promotes the interests both of society and the juvenile, we conclude that the practice serves a legitimate regulatory purpose compatible with the 'fundamental fairness' demanded by the Due Process Clause in juvenile proceedings").
183. See Dist. Att'y's Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2316, 2320-21 (2009) (rejecting a procedural due process challenge to Alaska's postconviction relief procedures for persons seeking access to evidence for DNA testing, noting that forty-six states have statutes governing access to DNA testing and that while Alaska is not among them, "[its] procedures are similar to those provided by federal law and the laws of other States, and they are not inconsistent with the 'traditions and conscience of our people'" (quoting Medina v. California, 505 U.S. 437, 446 (1992)) (internal citation omitted)
184. see also id. at 2317 (noting Alaska's "widely accepted three-part test" governing access to DNA rights).
185. See, e.g., Estes v. Texas, 381 U.S. 532,540-41 (1965) (polling states to decide a due process challenge to refusal to televise trial)
186. Snyder v. Massachusetts, 291 U.S. 97, 118-20 (1934) (polling states to determine a due process issue in defendant's inability to be present at view of crime scene).
187. See, e.g., Schad v. Arizona, 501 U.S. 624,642 (1991) ("This is not to say that either history or current practice is dispositive.")
188. Schall v. Martin, 467 U.S. 253, 268 (1984) ("The fact that a practice is followed by a large number of states is not conclusive in a decision as to whether that practice accords with due process, but it is plainly worth considering in determining whether the practice 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."' (quoting Leland v. Oregon, 343 U.S. 790,798 (1952))).
189. Estes, 381 U.S. at 540 (characterizing the fact that only two states allow the televising of a criminal trial as "weighty evidence that our concepts of a fair trial do not tolerate such an indulgence").
190. Powell v. Alabama, 287 U.S. 45, 73 (1932) ("A rule adopted with such unanimous accord ⋯ lends convincing support to the conclusion we have reached as to the fundamental nature of that right.").
191. Schad, 501 U.S. at 643 ("In fine, history and current practice are significant indicators of what we as a people regard as fundamentally fair⋯.").
192. Montana v. Egelhoff, 518 U.S. 37, 43 (1996) ("Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice.").
193. See Coker v. Georgia, 433 U.S. 584, 597 (1977) ("[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.")
194. accord Roper v. Simmons, 543 U.S. 551, 564 (2005)
195. Atkins v. Virginia, 536 U.S. 304,312 (2002). 424 U.S. 319 (1976).
196. See id. at 321
197. see also NOWAK & ROTUNDA, supra note 19, at 636-39,655 n.77 (discussing the Mot/leu's balancing test). 480 U.S. 39 (1987).
198. Id. at60n.l7.
199. See, e.g., Williams v. Florida 399 U.S. 78, 81-82 (1970) (justifying notice of alibi requirement based on the importance of state interest at stake, reasoning that "the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States." (internal citation omitted))
200. see also Schall v. Martin, 467 U.S. 253, 267-68 (1984) (justifying pretrial detention of juveniles based on the importance of state interest at stake, surveying states and reasoning that "[i]n light of the uniform legislative judgment that pretrial detention of juveniles properly promotes the interests both of society and the juvenile, we conclude that the practice serves a legitimate regulatory purpose compatible with the 'fundamental fairness' demanded by the Due Process Clause in juvenile proceedings").501 U.S. 1 (1991).
201. See id. at 17-18. I
202. id. at 17.
203. See id. at 24-25. 470 US. 68 (1985).
204. Id. at 78-79 (internal citation omitted)
205. see also id. at 79 (noting that "(mjore than 40 states, as well as the Federal Government" entitle indigent defendants to a psychiatrist's assistance when warranted).
206. See, e.g., Little v. Streater, 452 U.S. 1, 15-16 (1981) (finding a due process violation where state forced indigent defendants to pay for cost of paternity test, reasoning: "Moreover, following the example of other states, the expense of blood grouping tests for an indigent defendant in a Connecticut paternity suit could be advanced by the state and then taxed as costs to the partiesWe must conclude that the State's monetary interest 'is hardly significant enough to overcome private interests as important as those here.'" (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 28 (1981)))
207. Morrissey v. Brewer, 408 U.S. 471, 484, 488 n.15 (1972) (finding a due process violation where state revoked parole without a hearing, reasoning that "most States have recognized that there is no interest on the part of the State in revoking parole without any procedural guarantees at all" and stating in footnote that "[v]ery few States provide no hearing at all in parole revocations. Thirty States provide in their statutes that a parolee shall receive some type of hearing."). Ak,470U.S.at79).442 US. 584 (1979).
208. Id. at 612; see also Crane v. Kentucky, 476 U.S. 683, 689 (1986) (relying on "statutory and decisional law of virtually every State in the Nation" to find that defendant was deprived of an opportunity to be heard where the state excluded testimony at trial that called into question the reliability of his confession).
209. See, e.g., Santosky v. Kramer, 455 U.S. 745, 754-55 (1982) (using the Mathews balancing test to determine the burden of proof required in a termination of parental rights proceeding)
210. Medina v. California, 505 U.S. 437,443-46 (1992) (rejecting the Mathews balancing test and asking whether burden of proof in competency proceedings is fundamental). 483 US. 574 (1987).
211. Id. at 577-78; see also id. at 579 (relying on "[t]he collective judgment of the many state legislatures" in determining what due process requires).
212. Id. at 578 (quoting Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting)).
213. See id. at 578-79 ("In each of the uSree cases in which we have held that a standard of proof prescribed by a state legislature was unconstitutional, our judgment was consistent with the standard imposed by most jurisdictions.
214. discussing Santosky v. Kramer, 455 U.S. 745, 749 & n.3 (1997)
215. Addington v. Texas, 441 U.S. 418,426 (1979); In re Winship, 397 U.S. 358 (1970))).
216. See Winship, 397 U.S. at 361-62 ("Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does 'reflect a profound judgment about the way in which law should be enforced and justice administered.'" (quoting Duncan v. Louisiana, 391 U.S. 145,155 (1968))).
217. See AMngfon, 441 U.S. at 426 (holding that due process is not satisfied by the preponderance of evidence standard in involuntary civil commitment proceedings, noting that "only one state by statute permits involuntary commitment by a mere preponderance of the evidence").
218. See Santosky, 455 U.S. at 749 & n.3 (holding that due process is not satisfied by the preponderance of evidence standard in termination of parental rights proceedings, noting, "[t]hirty-five States, the District of Columbia, and the Virgin Islands currently specify a higher standard of proof, in parental rights termination proceedings, than a 'fair preponderance of the evidence'" (citations omitted)).
219. See Cruzan v. Mo. Dep't of Health, 497 U.S. 261, 284 (1990) (holding that due process did not prohibit die state's use of the clear and convincing standard to judge surrogate medical decisions, under which oral statements had been found inadequate, and noting that "most, if not all, States simply forbid oral testimony entirely in determining die wishes of parties in transactions which, while important, simply do not have the consequences that a decision to terminate a person's life does")
220. see also id. at 280 ("Whether or not Missouri's clear and convincing evidence requirement comports widi the United States Constitution depends in part on what interests the State may properly seek to protect in this situation. Missouri relies on its interest in the protection and preservation of human life, and there can be no gainsaying this interest. As a general matter, the States-indeed, all civilized nations-demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide.").
221. See, e.g., Cooper v. Oklahoma, 517 U.S. 348,360-62 (1996) (holding that due process is violated by state procedure requiring defendant to prove incompetence by clear and convincing evidence, stating: "Only 4 of the 50 States presently require the criminal defendant to prove his incompetence by clear and convincing evidence The near-uniform application of a standard that is more protective of the defendant's rights than Oklahoma's clear and convincing evidence rule supports our conclusion that the heightened standard offends a principle of justice that is deeply 'rooted in die traditions and conscience of our people.'" (quoting Medina v. California, 505 U.S. 437, 445 (1992))
222. Medina, 505 U.S. at 447-48 (holding that due process is satisfied by state rule imposing upon defendant burden of proving incompetency, polling states and concluding that "there remains no settled view of where the burden of proof should lie").
223. See Apprendi v. New Jersey, 530 U.S. 466, 482-83 (2000) (holding that due process requires proof beyond a reasonable doubt of any fact that increases penalty for crime beyond statutorily prescribed maximum, noting "the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone").
224. Mullaney v. Wilbur, 421 U.S. 684, 696 (1975) (holding that due process is violated by state rule imposing upon defendant burden of proving absence of malice, noting that "die large majority of States ⋯ now require the prosecution to prove the absence of the heat of passion on sudden provocation beyond a reasonable doubt").
225. In re Winship, 397 U.S. 358,361-62 (1970) (quoting Duncan v. Louisiana, 391 U.S. 145, 155 (1968))
226. accord Apprendi, 530 U.S. at 478; Rivera v. Minnich, 483 U.S. 574, 578-79 (1987).
227. See supra text accompanying note 3 (discussing the role of state legislation in "evolving standards" analysis)
228. supra text accompanying note 96 (discussing the Supreme Court's admonition that state legislative consensus is not conclusive in "evolving standards" analysis).
229. Griffin v. Illinois, 351 U.S. 12, 20-21 (1956) (Frankfurter, J., concurring) ('"Due process' is, perhaps, the least frozen concept of our law-the least confined to history and the most absorptive of powerful social standards of a progressive society.")
230. accord Medina, 505 U.S. at 454 (O'Connor, ]., concurring).
231. Trap v. Dulles, 356 U.S. 86,101 (1958) ("The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.").
232. See, e.g., Brown v. Bd. of Educ, 347 U.S. 483 (1954) (invalidating racially segregated schools under the Equal Protection Clause)
233. Engel v. Vitale, 370 U.S. 421 (1962) (invalidating school prayer under the First Amendment)
234. Texas v. Johnson, 491 U.S. 397 (1989) (invalidating a state's proscription on flag burning under the First Amendment); see also Friedman, supra note 9, at 604 n.135 ("In the First Amendment context, second perhaps only to small parts of equal protection jurisprudence, the Court most unabashedly seems to take on the majority in the name of minority rights.").
235. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,59 (1973)
236. Stewart, J., concurring) ("Unlike other provisions of the Constitution, the Equal Protection Clause confers no substantive rights and creates no substantive liberties. The function of the Equal Protection Clause, rather, is simply to measure the validity of classifications created by state laws.").
237. See generally NOWAK & ROTUNDA, supra note 19, at 429 (comparing provisions).
238. See (ironically) Korematsu v. United States, 323 U.S. 214, 216 (1944) ("It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.")
239. see also NOWAK & ROTUNDA, supra note 19, at 687-88 (discussing the strict scrutiny standard and its application to classifications based on race or national origin)
240. id. at 751-52 (discussing Korematsu's introduction of the strict scrutiny standard).
241. See Craig v. Boren, 429 U.S. 190, 197 (1976) (articulating intermediate scrutiny standard)
242. see also NOWAK & ROTUNDA, supra note 19, at 688 (discussing tlie intermediate scrutiny standard and its application to classifications based on gender or illegitimacy).
243. See Heller v. Doe, 509 U.S. 312, 319-21 (1993) (discussing the rational basis standard)
244. see also NOWAK & ROTUNDA, supra note 19, at 429,687 (same).
245. See supra text accompanying notes 22-23.
246. Compare, e.g., Vacco v. Quill, 521 U.S. 793, 804-05 (1997) (relying on the majority position of the states to find no fundamental right to assisted suicide under equal protection analysis)
247. Washington v. Glucksberg, 521 U.S. 702,710 (1997) (relying on the same under due process analysis).
248. 509U.S.312.
249. Id. at 327-28,328 n.3 (applying rational basis review).
250. Id. at 326. 411 U.S. 1(1973).
251. Id. at 47-48 (applying rational basis review). 521 U.S. 793 (1997).
252. Id. at 804-05 (applying rational basis review)
253. see also supra note 135 (discussing Vacco's use of the majority position of the states to reject the claim that assisted suicide is a fundamental right under Equal Protection Clause).
254. See, e.g., Martinez v. Bynum, 461 U.S. 321, 325 n.4 (1983) (rejecting equal protection challenge to residency requirement for tuition-free public schooling and noting that "[t]he vast majority of die States have some residence requirements governing entitlement to tuition-free public schooling")
255. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60,72 (1978) (rejecting an equal protection challenge to the state's creation of political subdivisions, explaining, "(i]n this country 35 States authorize their municipal subdivisions to exercise governmental powers beyond their corporate limits")
256. Sosna v. Iowa, 419 U.S. 393,404-05 (1975) (rejecting an equal protection challenge to residency requirement for divorce, reasoning that "(t]he imposition of a durational residency requirement for divorce is scarcely unique to Iowa, since 48 States impose such a requirement as a condition for maintaining an action for divorce")
257. Reynolds v. Sims, 377 U.S. 533, 583-84 (1964) ("Decennial reapportionment appears to be a rational approach to readjustment of legislative representation in order to take into account population shifts and growth. Reallocation of legislative seats every 10 years coincides with the prescribed practice in 41 of the States[i]f reapportionment were accomplished with less frequency, it would assuredly be constitutionally suspect.").
258. See Romer v. Evans, 517 U.S. 620, 633 (1996) (justifying careful scrutiny under rational basis review).
259. See Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 n.4 (1966) (invalidating a poll tax under the Equal Protection Clause, noting that "[o]nly a handful of States today condition the franchise on the payment of a poll tax").
260. See Craig v. Boren, 429 U.S. 190, 208 n.22 (1976) (invalidating gender distinctions in state regulation of sale of alcohol, stating that "(t]he repeal of most of these laws signals society's perception of the unfairness and questionable constitutionality of singling out groups to bear the brunt of alcohol regulation"); id. at 212 n.3
261. Stevens, J., concurring) ("Apparently Oklahoma is the only State to permit this narrow discrimination to survive⋯.").
262. See Romer, 517 U.S. at 633 (invalidating a state constitutional amendment prohibiting protection on the basis of sexual orientation, relying in part on the fact diat it was "unprecedented").
263. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 147 n.3 (1980) (invalidating gender distinctions for surviving spouse benefits, noting that "(t]he workers' compensation laws of the vast majority of States now make no distinction between the eligibility of widows and widowers for death benefits");
264. Loving v. Virginia, 388 U.S. 1, 6 & n.5 (1967) (invalidating a miscegenation statute, noting that "Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications" and that "[o]ver the past 15 years, 14 States have repealed laws outlawing interracial marriages")
265. see also Grutter v. Bollinger, 539 U.S. 306,357 (2003)
266. Thomas, J., concurring in part and dissenting in part) (opining that in the affirmative action context, "circumstantial evidence as to whether a state activity is of pressing public necessity can be obtained by asking whether all States feel compelled to engage in that activity")
267. J.E.B. v. Alabama, 511 U.S. 127, 144 (1994) (invalidating gender-based preemptory challenges, stating that "(t]he experience in the many jurisdictions that have barred gender-based challenges belies the claim that litigants and trial courts are incapable of complying with a rule barring strikes based on gender").
268. See supra note 128 and accompanying text.
269. See generally Peter Westen, The Empty Idea of Equality, 95 HARV. L REV. 537 (1982).
270. U.S. CONST, amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ").
271. See NOWAK & ROTUNDA, supra note 19, at 1408 (discussing the neutrality principle)
272. see also supra text accompanying note 151 (quoting both clauses).
273. See Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 878-89 (1990) (holding that the Free Exercise Clause does not prohibit governmental burden on religion where the law is neutral and of general applicability, and was not intended to burden religious practice)
274. Gonzales v. O Centre Espirita Beneficiente Uniao do Vegetal, 546 U.S. 418 (2006)
275. See also Van Orden v. Perry, 545 U.S. 677, 690-91 (2005) (noting that "[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause," at least without an "improper and plainly religious purpose").
276. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993) ("[A] law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.")
277. see also NOWAK & ROTUNDA, supra note 19, at 1408-09 (discussing the compelling interest test).
278. See supra Part II.A (discussing the equal protection doctrine and the Supreme Court's use of majoritarian benchmarks in applying it).
279. See McGowan v. Maryland, 366 U.S. 420, 435 (1961) (upholding Sunday closing laws, stating, "[a]lmost every state in our country presently has some type of Sunday regulation and over forty possess a relatively comprehensive system").
280. See Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 676 (1970) (upholding a state tax exemption for realty owned for religious purposes, stating, "All of die 50 States provide for tax exemption of places of worship, most of them doing so by constitutional guarantees⋯. Few concepts are more deeply embedded in the fabric of our national life ⋯.").
281. See Marsh v. Chambers, 463 U.S. 783, 788-89, 794 (1983) (upholding the state practice of opening a legislative session with a prayer by a chaplain paid from public funds, noting that the practice has "been followed consistently in most of the states" and that "many state legislatures and the United States Congress provide compensation for their chaplains").
282. See McDaniel v. Paty, 435 U.S. 618, 625 (1978) (invalidating a state provision barring ministers from serving as delegates, noting that "[t]oday Tennessee remains the only State excluding ministers from certain public offices").
283. See Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 701 (1994) (invalidating a school district that tracked denominational lines, noting that it was "exceptional to the point of singularity").
284. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 353-54, 370 (1997) (upholding a ban on so-called "fusion" candidates under interest balancing test, beginning opinion with the statement, "Most States prohibit multiple-party, or 'fusion,' candidacies for elected office," and concluding that "the Constitution does not require Minnesota, and the approximately 40 other States that do not permit fusion, to allow it")
285. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 568 (1991) (upholding a public indecency statute under interest balancing test, noting that "[p]ublic indecency statutes of this sort are of ancient origin and presently exist in at least 47 States")
286. Tashjian v. Republican Party of Conn., 479 U.S. 208, 223 n.12 (1986) (invalidating a closed primary statute under an interest balancing test, noting "that appellant's direst predictions about destruction of the integrity of the election process and decay of responsible party government are not borne out by the experience of the 29 States which have chosen to permit more substantial openness in their primary systems than Connecticut has permitted heretofore")
287. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 510 (1981) (upholding a billboard regulation under an interest balancing test, noting that "the [legislative] judgment involved here is not so unusual as to raise suspicions in itself and that the regulation at issue was "like many States").
288. See generally NOWAK & ROTUNDA supra note 19, at 1130-43 (discussing various categories of speech and the different interest-balancing tests used to evaluate restrictions on them).
289. See R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (noting that "a limited categorical approach has remained an important part of our First Amendment jurisprudence").
290. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)
291. accord Virginia v. Black, 538 U.S. 343,358 (2003)
292. Roth v. United States, 354 U.S. 476,485 (1957).
293. Beauhamais v. Illinois, 343 U.S. 250, 255 (1952).
294. New York v. Ferber, 458 U.S. 747, 757-58 (1982).
295. Roth, 354 U.S. at 485. Indeed, in the obscenity context, the Supreme Court takes the notion of explicitly majoritarian protection to a whole new level. Not only has the Court excluded obscenity from First Amendment protection based on the majority position of the states, but it has used die majority position of each locality-"contemporary community standards"-to define obscenity in the first place.
296. See Miller v. California, 413 U.S. 15,37 (1973)
297. see also id. at 44 (Douglas, ]., dissenting) ("To give die power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society.").
298. The Court's use of state legislative consensus to make categorical exclusions to First Amendment protection in the free speech context presents a conspicuous exception. See supra notes 163-166 and accompanying text.
299. See supra text accompanying note 128 (referencing the Supreme Court's desegregation, school prayer, and flag burning cases).
300. Lain, supra note 65, at 1363-64 (discussing widely held view of Supreme Court's 1960s criminal procedure decisions as "the quintessential example of the Supreme Court playing a heroic, countermajoritarian role").
301. U.S. CONST, amend. IV ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ⋯.").
302. See Katz v. United States, 389 U.S. 347, 351 (1967) ("For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.").
303. Id. at 361 (Harlan, J., concurring)
304. accord Bond v. United States, 529 U.S. 334, 338 (2000)
305. Minnesota v. Olsen, 495 U.S. 91,95-96 (1990)
306. Rakas v. Illinois, 439 U.S. 128,143 n.12 (1978).
307. 445 U.S. 573 (1980).
308. Id. at 602-03.
309. See id. at 590-603.
310. Id. at 600.
311. Id. (discussing United States v. Watson, 423 U.S. 411 (1976)).
312. Id.
313. 543 US. 551 (2005).
314. See supra text accompanying notes 26-31 (discussing the analysis in Roper and comparing the analysis in the "evolving standards" and the substantive due process fundamental rights context).
315. 471 U.S. 1(1985).
316. Id. at 15-16.
317. 532 U.S. 318 (2001).
318. Id. at 345 n.14 (quoting Tennessee v. Gamer, 471 U.S. 1, 26 (1985) (O'Connor, J., dissenting))
319. see also infra text note 189 (quoting state counting in Atwaxer).
320. See Gamer, 471 U.S. at 18 (finding a Fourth Amendment violation where police used deadly force against nonviolent felon, stating, "the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States"). For an excellent discussion of majoritarian doctrine in the excessive force context, see generally Winter, supra note 9.
321. See Wilson v. Arkansas, 514 U.S. 927, 933-34 (1995) (recognizing "knock and announce" as a Fourth Amendment requirement "embedded in Anglo-American law").
322. See United States v. Watson, 423 U.S. 411, 421-22 (1976) (recognizing the validity of warrantless arrest in public, stating, "The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears in almost all of the States in the form of express statutory authorization.").
323. See New York v. Burger, 482 U.S. 691, 698 all (1987) (recognizing validity of warrantless administrative search of vehicle-dismantling business, stating "Numerous States have provisions for the warrantless inspections of vehicle dismantlers and automobile junkyards," and citing thirty-eight state statutes).
324. See Atwater, 532 U.S. at 320, 344 (upholding arrest for nonjailable
325. U.S. CONST, amend. VI.
326. Barry Friedman has made the same point.
327. See Friedman, supra note 9, at 593-94 (noting in the Sixth Amendment context that "'all' turns out not to mean all: it just means some").
328. 300 U.S. 617 (1937).
329. Id. at 628 ("Doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.").
330. 391 U.S. 145 (1968).
331. Id. at 161 ("In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled by District of Columbia v. Clawans⋯ to refer to objective criteria, chiefly the existing laws and practices in the Nation." (citing Clawans, 300 U.S. at 628)).
332. See Penry v. Lynaugh, 492 U.S. 302, 331 (1989) (stating in "evolving standards" context that "[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures")
333. accord Atkins v. Virginia, 536 U.S. 304,312 (2002). I made a similar point in Part I of this Article.
334. See supra text accompanying notes 23-24 (discussing reliance on state legislation in the "evolving standards" and substantive due process contexts).
335. 441 U.S. 130(1979).
336. Id. at 138-39.
337. Id. at 138.
338. 399 U.S. 66 (1970).
339. Id. at 70.
340. Id. (quoting Duncan v. Louisiana, 391 U.S. 145,161 (1968)).
341. See, e.g., Ring v. Arizona, 536 U.S. 584, 607-09 (2002) (finding a violation of Sixth Amendment right to jury where sentencing judge, rather than jury, found aggravating factors to support death sentence, noting that "the great majority of states" entrust such findings to the jury and that "other than Arizona, only four states" allow the judge to make such determinations)
342. Ballew v. Georgia, 435 U.S. 223, 244 (1978) (invalidating a five-member jury under Sixth Amendment, noting that "only two States, Georgia and Virginia, have reduced the size of juries in certain nonpetty criminal cases to five")
343. Williams v. Florida, 399 U.S. 78, 122 (1970)
344. Harlan, J., concurring) (lamenting the majority's decision to uphold a six-member jury under Sixth Amendment, noting that "(r]ather than bind the States by the hitherto undeviating and unquestioned federal practice of 12-member juries, the Court holds, based on a poll of state practice, that a six-man jury satisfies the guarantee of a trial by jury in a federal criminal system and consequently carries over to the States"). For an excellent (and the only other) discussion of majoritarian doctrine in the Sixth Amendment right to jury context, see Friedman, supra note 9, at 593-98.
345. See, e.g., Klopfer v. North Carolina, 386 U.S. 213, 220 n.5 (1967) (invalidating an indefinite noUe prosequi procedure as violating the right to a speedy trial, noting that "only North Carolina and Pennsylvania have held that a nolle prossed indictment could be reinstated at a subsequent term").
346. See, e.g., Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 388 n.19 (1979) (rejecting claim that members of the public have a right to access criminal trials, noting that "[a]pproximately half the States also have statutory prohibitions containing limitations upon public trials").
347. See, e.g., Taylor v. Louisiana, 419 U.S. 522,533 (1975) ("If the fair-cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn. This conclusion is consistent with the current judgment of the country, now evidenced by legislative or constitutional provisions in every State and at the federal level qualifying women for jury service.").
348. See, e.g., Washington v. Texas, 388 U.S. 14,16 n.4 (1967) (finding a violation of compulsory process where a state statute prevented defendant from placing an accomplice on the stand, noting that "[c]ounsel have cited no statutes from other jurisdictions, and we have found none, that flatly disqualify coparticipants in a crime from testifying for each other regardless of whether they are tried jointly or separately").
349. See, e.g., Maryland v. Craig, 497 U.S. 836,853-54 (1990) (holding that the Confrontation Clause did not categorically prohibit child sexual assault testimony via one-way closed circuit television, explaining: "We likewise conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy.").
350. See Rothgery v. Gillespie County, 128 S. Ct. 2578, 2586-87 (2008) ("(Tlhe overwhelming consensus practice conforms to the rule that the first formal proceeding is the point of attachment. We are advised without contradiction that not only the Federal Government, including the District of Columbia, but 43 States take the first step toward appointing counsel 'before, at, or just after initial appearance."' (citation omitted))
351. see also Argersinger v. Hamlin, 407 U.S. 25, 27 n.l (1972) (holding that no person may be imprisoned without the right to counsel, noting that "[o]verall, 31 States have now extended the right [of counsel] to defendants charged with crimes less serious than felonies"). I credit Jessica Lain for this insight, based on empirical study.
352. See supra Part l.A.l (discussing majoritarian doctrine in the context of substantive due process protection of fundamental rights).
353. See supra Part Part II.A (discussing equal protection doctrine).
354. See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318, 355-60 (2001) (appendix surveying state statutes on warrantless misdemeanor arrests)
355. Connecticut v. Doehr, 501 U.S. 1, 24-25 (1991) (appendix surveying state statutes on prejudgment attachment)
356. Elkins v. United States, 364 U.S. 206, 224-25 (1960) (appendix surveying states on exclusionary rule)
357. Wolf v. Colorado, 338 U.S. 25, 29-30 (1949) (same)
358. see also Baldwin v. New York, 399 U.S. 66, 138-43 (1970)
359. Harlan, J., concurring in part and dissenting in part) (appendix surveying states on right to jury issues).
360. See, e.g., Wilson v. Arkansas, 514 U.S. 927, 933-34 (1995) (recognizing "knock and announce" as a Fourth Amendment requirement "embedded in Anglo-American law")
361. Parham v. J.R., 442 U.S. 584, 612 (1979) (upholding state procedures for involuntary commitment of juveniles under Due Process Clause, explaining "[t]hat there may be risks of error in the process affords no rational predicate for holding unconstitutional an entire statutory and administrative scheme that is generally followed in more than 30 states")
362. Ballew v. Georgia, 435 U.S. 223, 244-45 (1978) (invalidating a five-member jury under the Sixth Amendment, noting that "only two States, Georgia and Virginia, have reduced die size of juries in certain nonpetry criminal cases to five")
363. Pointer v. Texas, 380 U.S. 400, 404 (1965) ("[T]he right of confrontation [i]s 'one of die fundamental guarantees of life and liberty,' and⋯ 'guarded against legislative and judicial action by provisions in the Constitution of the United States and in die constitutions of most, if not of all, the States composing the Union."'
364. Kirby v. United States, 174 U.S. 47, 55-56 (1899)))
365. see also infra text accompanying note 218 (discussing the absence of state counting altogether in areas where the Supreme Court's articulation of the constitutional standard appears to invite it).
366. See supra notes 7-8 and accompanying text (discussing widespread perception among deadi penalty scholars in particular, and larger academy in general, that the Supreme Court's reliance on state legislative consensus to determine constitutional protection is limited to Eighth Amendment "cruel and unusual punishments" context).
367. See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) ('The very purpose of a Bill of Rights was to withdraw certain subjects from die vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.")
368. Adkins v. Children's Hosp., 261 U.S. 525, 560 (1923) ("The elucidation of [a constitutional] question cannot be aided by counting heads.")
369. see also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 999-1000 (1992)
370. Scalia, J., dissenting) ("How upsetting it is that so many of our citizens⋯ think that we Justices should properly take into account dieir views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.").
371. See, e.g., Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 2631-32 (2008) (acknowledging that "a slim majority of the States with a [punitive damages-to-actual harm] ratio have adopted 3:1" but concluding, "[t]hus, a legislative judgment that 3:1 is a reasonable limit overall is not a judgment that 3:1 is a reasonable limit in this particular type of case")
372. Michael H. v. Gerald D., 491 U.S. 110, 126-27 (1989) (acknowledging that almost all states recognize right of natural parent to assert paternity but distinguishing that right, stating: "What Michael asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives. What he must establish, therefore, is not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least has not traditionally denied them.")
373. id. at 137-42
374. Brennan, J., dissenting) (chastising the majority's manipulation of tradition and "level of generality"). Most often (but not always), this occurs when the Court's protection lags behind that of the states.
375. See, e.g., Michael M. v. Superior Court, 450 U.S. 464,492 (1981)
376. Brennan, J., dissenting) ("First, the experience of other jurisdictions, and California itself, belies the plurality's conclusion that a gender-neutral statutory rape law 'may well be incapable of enforcement.' There are now at least 37 States that have enacted gender-neutral statutory rape laws.")
377. Scott v. Illinois, 440 U.S. 367, 385-88 (1979)
378. Brennan, J., dissenting) ("Perhaps the strongest refutation of respondent's alarmist prophecies that an authorized imprisonment standard would wreak havoc on die States is that the standard has not produced that result in the substantial number of States that already provide counsel in all cases where imprisonment is authorizedIn fact, Scott would be entitled to appointed counsel under the current laws of at least 33 States.")
379. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 326 n.6 (1976)
380. Marshall, J., dissenting) ("Appellee has produced a study of the laws of the 50 States that shows that Massachusetts' age-50 retirement law prescribes the earliest retirement age in the Nation, and that no other State requires its state police to retire before age 55. In short, I refuse to hypothesize that testing after age 50 loses its predictive ability when the appellants have introduced absolutely nothing that supports this position.")
381. Braunfeld v. Brown, 366 U.S. 599, 614-15 (1961)
382. Brennan, J., dissenting) ("It is true, I suppose, that the granting of [a religious] exemption [to Sunday closing laws] would make Sundays a little noisier, and the task of police and prosecutor a little more difficult. It is also true that a majority-21-of the 34 States which have general Sunday regulations have exemptions of this kind. We are not told that those States are significantly noisier, or that their police are significantly more burdened, than Pennsylvania's.")
383. cf. Texas v. Johnson, 491 U.S. 397, 429 (1989)
384. Rehnquist, C.J., dissenting) ("I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag."). For an explanation of this phenomenon, see infra note 253 and accompanying text.
385. See Corinna Barrett Lain, Deciding Death, 57 DUKE L.J. 1, 25-35 (2007) (deconstructing the "evolving standards" doctrine to show result-oriented manipulation of state polling data, using the death penalty for juveniles and mentally retarded offenders as examples)
386. Jacobi, supra note 1, at 1123- 49 (discussing in depth the "junk social science of counting state legislation"). Indeed, the same could be said of the entire body of constitutional law.
387. See Lawrence H. Tribe, The Treatise Power, 8 GREEN BAG 2D. 291, 292, 295 (2005) (open letter from Tribe announcing his decision to suspend work on the second volume of his constitutional law treatise based on "conflict over basic constitutional premises" and "profound doubts whether any new synthesis⋯ is possible at present").
388. Professor Roderick Hills has argued that the Supreme Court's state polling exercises are consistent with federalism principles because the Court tends to use state legislative consensus to preserve, rather than invalidate, a challenged state practice.
389. See Hills, supra note 9. I respectfully disagree with this assessment. In many cases (including those in which state counting is not formally entrenched as identifying the constitutional norm and is thus more susceptible to result-oriented manipulation), the Supreme Court has used the majority position of the states to invalidate, as well as validate, state legislation. See supra notes 99-103,105,107 (discussing cases where the Supreme Court used state legislative consensus to invalidate legislation in the context of notice and opportunity to be heard); 140-143 (discussing same in equal protection context)
390. 155-156,158 (same in First Amendment context). In fairness, Professor Hills does not base his argument on an examination of the Court's cases, but rather upon a discussion of why it does not make sense for the Court to invalidate state legislation based on state legislative consensus-and on that score, he may well be right. For my own take on the federalism implications of state counting
391. see infra notes 294-296 and accompanying text.
392. See Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491, 505 n.66 (1997) ("Because of inertia, enactment of legislation requires more than majority support; the same is true for repeal. Thus the failure to repeal existing legislation might indicate that a majority still supports it or that a minority sufficiently large to block repeal supports it. There is no way of telling for sure."). Indeed, the argument has even more force in the "evolving standards" context given the difficulty of repealing criminal law provisions
393. See Richard E Myers, II, Responding to the Time-Based Failures of the Criminal law Through a Criminal Sunset Provision, 49 B.C. L REV. 1327, 1329 (2008) ("Once on the books, criminal law is difficult to repeal. It stays with us, despite changing moral convictions and majority preferences.")
394. see also William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L REV. 505, 557 (2001) ("When the issue is subtracting crimes rather than adding them, legislative inertia is probably stronger in criminal law than elsewhere, since even groups with good reason to seek decriminalization hesitate to do so.").
395. See, e.g., Kassel v. Consol. Freightways Corp. of Del., 450 U.S. 662, 671 (1981) (polling states to find a burden on interstate commerce imposed by outlier state's more restrictive regulation, noting, "Iowa's law is now out of step with the laws of all other Midwestern and Western States. Iowa thus substantially burdens the interstate flow of goods by truck.")
396. Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429,445-46 (1978) (polling states to find the same).
397. See, e.g.. Brown v. Legal Found, of Wash., 538 U.S. 216, 221-23 (2003) (polling states to uphold state's use of interest on lawyers' trust accounts to pay for legal services for the needy)
398. Penn. Cent. Transp. Co. v. City of New York, 438 U.S. 104,109 (1978) (polling states to uphold landmark preservation law against takings claim).
399. See, e.g., Breed v. Jones, 421 U.S. 519, 538 (1975) (polling states to find double jeopardy violation where juvenile was subject to both adjudicatory hearing and subsequent trial as adult).
400. See, e.g, Burnham v. Superior Court, 495 U.S. 604, 615 (1990) (polling states to uphold tag jurisdiction, noting, "We do not know of a single state or federal statute, or a single judicial decision resting upon state law, that has abandoned in-state service as a basis for jurisdiction")
401. id. at 627 ("Nothing we say today prevents individual States from limiting or entirely abandoning the in-state-service basis of jurisdiction. And nothing prevents an overwhelming majority of them from doing so, with the consequence that the 'traditional notions of fairness' that this Court applies may change.").
402. see infra note 245 (noting that the Supreme Court does not appear to have counted states in other personal jurisdiction cases).
403. See, e.g., Carlson v. Landon, 342 U.S. 524, 562 (1952) ("Discretion is only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.").
404. See, e.g.. Bob Jones Univ. v. United States, 461 U.S. 574,593 n.20 (1983) ("Yet contemporary standards must be considered in determining whether [tax exemption applies].").
405. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 266 (1986) ("[E]very successful proponent of overruling precedent has borne the heavy burden of persuading the Court that changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objective.")
406. Runyon v. McCrary, 427 U.S. 160,191 (1976)
407. Stevens, J., concurring) ("If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of tlieir successors.").
408. See Eaton v. City of Tulsa, 415 U.S. 697, 700 (1974)
409. Powell, J., concurring) (invalidating a summary contempt finding for saying "chicken shit" in the courtroom).
410. This is not to deny that the Justices' policy preferences might lead to manipulation of state polling data, but that is true in and outside the "evolving standards" context.
411. See supra notes 217-220 and accompanying text (discussing doctrinal manipulation of state polling data).
412. Justice O'Connor has made the point explicitly.
413. See, e.g., Sandra Day O'Connor, Remarks, Public Trust as a Dimension of Equal Justice: Some Suggestions to Increase Public Trust, 36 CT. REV. 10, 13 (1999) ("We don't have standing armies to enforce opinions, we rely on the confidence of the public in the correctness of those decisions. That's why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and build that trust.").
414. Not one of the cases I have found was decided before the 1930s, a point that is not likely coincidental. See BARRY FRIEDMAN, THE WILL OFTHE PEOPLE 4 (2009) (noting that in the wake of the New Deal, "a tacit deal was reached: the American people would grant the justices their power, so long as the Supreme Court's interpretation of the Constitution did not stray too far from what a majority of the people believed it should be. For the most part, this deal has stuck.")
415. see also id. at 195-236 (discussing in depth the Supreme Court's capitulation to the New Deal program following President Roosevelt's court-packing plan).
416. THE FEDERALIST NO. 78,137 (Alexander Hamilton) (Henry B. Dawson ed., Scribner 1876).
417. See generally supra Part II (analyzing equal protection and First Amendment doctrines)
418. supra text accompanying note 128 (citing cases famous for countermajoritarian protection in the equal protection and First Amendment contexts).
419. See generally supra Part LA (comparing the Supreme Court's substantive due process fundamental rights and "evolving standards" doctrines).
420. This venerable doctrine has other, perhaps more well known, iterations, but here the reference is to "Cover Your Authority." C{. Winter, supra note 9, at 684 (suggesting that the Court's reliance on state polling in the Fourth Amendment context may have been "nothing more than acting prudently to cover its political flank")
421. Conkle, supra note 18, at 64 ("Nothing in constitutional law is more controversial than substantive due process.").
422. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.")
423. Bowers v. Hardwick, 478 U.S. 186,194 (1986) ("Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.")
424. Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) ("Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights⋯. That history counsels caution and restraint.").
425. See generally supra Part I.B.2 (discussing majoritarian decisionmaking under the Supreme Court's notice and opportunity to be heard cases); supra Part II (discussing the same under equal protection and First Amendment).
426. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966) (requiring warnings prior to custodial interrogation under the Fifth Amendment)
427. see also LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLrnCS394 (2000) ("If Miranda is not the most controversial decision by the Warren Court, it is close enough, and it is the most controversial criminal procedure decision hands down.").
428. See supra text accompanying notes 192-203 (discussing majoritarian decisionmaking in the Sixth Amendment right to jury context).
429. This is not to say that the Fifth Amendment interrogation context is never susceptible to the sort of explicitly majoritarian decisionmaking that the Supreme Court does in other doctrinal areas.
430. See Dickerson v. United States, 530 U.S. 428, 443 (2000) ("We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.").
431. See supra Part I.B.2 (discussing state polling in the notice and opportunity to be heard context)
432. Part II (discussing state polling in equal protection and First Amendment contexts).
433. See supra note 172 and accompanying text.
434. While the Supreme Court in Bumham v. Superior Court of California, 495 U.S. 604 (1990), counted states and explicitly recognized the relevance of state legislative consensus in its personal jurisdiction analysis, id. at 615, 627, the Court does not appear to have taken an explicitly majoritarian approach to personal jurisdiction outside that case.
435. See supra note 226 (quoting Bumham's majoritarian language).
436. 410U.S. 113 (1973) (overturning the laws of forty-six states that placed limits on access to abortion in the first trimester). Others have recognized the point. See ROSEN, supra note 8, at 202 ("In response to Roe v. Wade, conservatives embraced a series of formalist approaches to the Constitution in an effort to constrain judicial discretion⋯.")
437. Post, supra note 11, at 88-91 (discussing the Supreme Court's conservative approach in Bowers as a result of its liberal result in Roe)
438. see also Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (defending "restrained methodology" in the substantive due process area "lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court").
439. 408 U.S. 238 (1972) (overturning the death penalty statutes of thirty-nine states).
440. 370 U.S. 421 (1962) (overturning the laws of thirty-nine states requiring or allowing school prayer).
441. Mitchell v. United States, 526 U.S. 314,331-32 (1999)
442. Scalia, J., dissenting). Chief Justice Rehnquist apparently agreed.
443. See Dickerson v. United States, 530 U.S. 428, 443 (2000) (opinion by Chief Justice Rehnquist citing Justice Scalia's dissent in Mitchell for the proposition that "the fact that a rule has found 'wide acceptance in the legal culture' is 'adequate reason not to overrule' it").
444. 399 U.S. 66 (1970).
445. See id. The Supreme Court's analysis in Baldwin is discussed at supra notes 201-202 and accompanying text.
446. Baldwin, 399 U.S. at 77 (Burger, C.J., dissenting).
447. This explains why the dissenters in most of these cases are the Court's liberals.
448. See supra note 218 (listing a number of cases in which the Court has rejected the result that state polling would suggest and quoting state counting arguments by dissenting Justices).
449. See Sandra Day O'Connor, The Majesty of the Law: Reflections of a Supreme Court Justice 166 (Craig Joyce ed., 2003).
450. See Jason DeParle, In Battle to Pick Next Justice, Right Says Avoid a Kennedy, N.Y. TIMES, June 27, 2005, at Al (quoting Justice Kennedy as stating, "In the long term, the court is not antimajoritarian-it's majoritarian."). This proclivity for majoritarian rulings may also explain Justice Kennedy's willingness to consider foreign law in constitutional decisionmaking.
451. See Jeffrey Toobin, Swing Shift: How Anthony Kennedy's Passion for Foreign Law Could Change the Supreme Court, NEW YORKER, Sept. 12, 2005, at 42 (discussing Justice Kennedy's interest in foreign law and quoting him as explaining, "There is also the constitution with a small 'c,' the sum total of customs and mores of the community" and "(t]he closer the big 'C and the small 'c,' the better off you are as a society").
452. See William Mishler & Reginald S. Sheehan, PuHic Opinion, die Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective, 58 J. POL 169 (1996) (providing an empirical study comparing responsiveness of moderate, conservative, and liberal Justices to public opinion).
453. See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (opinion by Justice Kennedy)
454. Lawrence v. Texas, 539 U.S. 558 (2003) (opinion by Justice Kennedy)
455. State Farm Mut. Auto. Ins. v. Campbell, 538 U.S. 408 (2003)
456. opinion by Justice Kennedy, joined by Justice O'Connor)
457. Troxel v. Granville, 520 U.S. 57 (2000) (opinion by Justice O'Connor)
458. Romer v. Evans, 517 U.S. 620 (1996) (opinion by Justice Kennedy, joined by Justice O'Connor)
459. Reno v. Flores, 507 U.S. 292 (1993) (opinion by Justice Kennedy)
460. Heller v. Doe, 509 U.S. 312 (1993) (opinion by Justice Kennedy)
461. Schad v. Arizona, 501 U.S. 624 (1991) (opinion joined by Justices O'Connor and Kennedy)
462. Bowers v. Hardwick, 478 U.S. 186 (1986) (opinion joined by Justice O'Connor).
463. See supra notes 246-248 and accompanying text (discussing liberal landmarks where the Court upset the majority practice of the states). 491 U.S. 110 (1989)
464. Michael H. v. Gerald D. is discussed at supra note 43 and accompanying text.
465. Michael H., 491 U.S. at 140-41 (Brennan, J., dissenting).
466. Again, I concede that to the extent existing state statutes do not accurately reflect contemporary public opinion, this will not be the case.
467. See supra notes 221-222 and accompanying text (discussing point). But the issue seems to me a more generic problem of the ostensibly majoritarian legislative and executive branches-that current majorities may bind those in the future not by agreement, but sheer inertia.
468. OLIVER WENDELL HOLMES, THE COMMON LAW 1,5 (Mark DeWolfe Howe ed, 1963)
469. See ROSEN, supra note 8, at 202 ("On the Supreme Court and in the legal academy today, the leading schools of constitutional interpretation on the left and the right tend to embrace a heroic version of judicial power, which insists that judges can demonstrate their devotion to principle by acting unilaterally-that is, ignoring, as much as possible, the constitutional views of the president, Congress, the state legislatures, and the American people.")
470. Brennan's Approach to Reading and Interpreting the Constitution, 43 N.Y.L SCH. L. REV. 41 (1999) (panel including, among others, Michael McConnell, who stated, "The central problem with (justice Brennan's] jurisprudence is that he cast aside all of the traditional constraints on constitutional decision making. This approach placed into the hands of judges the power to turn their own views of good social policy into law without any credible basis in constitutional text, history, precedent, constitutional tradition, or contemporary democratic warrant.")
471. Mark Tushnet, Religion and Theories of Constitutional Interpretation, 33 LOY. L REV. 221, 229 (1987) (noting "the general problem of originalism, which is that social change makes it a theory of constitutional interpretation that regularly fails to provide guidance on matters of contemporary constitutional controversy because it disregards the complexities of both the historical record and the current situation")
472. see also Antonin Scalia, Originalism: The Lesser Evil, 57 U. ClN. L REV. 849, 863 (1989) ("Nonoriginalism, which under one or another formulation invokes 'fundamental values' as the touchstone of constitutionality, plays precisely to this weakness [of judging by personal policy preferences]. It is very difficult for a person to discern a difference between those political values that he personally thinks most important, and those political values that are 'fundamental to our society.' Thus, by the adoption of such a criterion judicial personalization of the law is enormously facilitated. (One might reduce this danger by insisting that the new 'fundamental values' invoked to replace original meaning be clearly and objectively manifested in the laws of the society. But among all the varying tests suggested by nonoriginalist theoreticians, I am unaware that that one ever appears.)").
473. ROSEN, supra note 8, at 202; see also supra note 263 (quoting sentence in its entirety).
474. See, e.g., Tonja Jacobi, The Subtle Unraveling of Federalism: The lEogic of Using State Legislation, as Evidence of an Evolving National Consensus, 84 N.C.L.R. 1089 (2006).
475. See Corinna Barrett Lain, Popular Constitutionalism and Our (Already) Democratic Supreme Court (unpublished manuscript, on file widi author).
476. See supra notes 1,4 and accompanying text.
477. See supra note 5 and accompanying text.
478. See supra notes 7-8 and accompanying text.
479. See Trap v. Dulles, 356 U.S. 86, 100 n.32 (1958) ("Whether the word 'unusual' has any qualitative meaning different from 'cruel' is not clear. On the few occasions this Court has had to consider the meaning of the phrase, precise distinctions between cruelty and unusualness do not seem to have been drawn. These cases indicate that the Court simply examines the particular punishment involved in light of the basic prohibition against inhuman treatment, without regard to any subtleties of meaning that might be latent in the word 'unusual.'").
480. See Weems v. United States, 217 U.S. 349, 368 (1910) ("What constitutes a cruel and unusual punishment has not been exactly decided. It has
481. id. at 367 ("[I]t is a precept of justice that punishment for crime should be graduated and proportioned to offense.")
482. see also HUGO ADAM Bedau, The Courts, the Constitution, and Capital Punishment 37 (1977) ('"Cruel and unusual punishment,' one is entitled to conclude, really means 'unusually severe punishment.'").
483. See Furman v. Georgia, 408 U.S. 238, 274 (1972) (Brennan, J., concurring) (reading the "cruel and unusual punishments" clause to prohibit the imposition of death in an arbitrary and capricious manner).
484. See Lockett v. Ohio, 438 U.S. 586, 604 (1978) ('"[T]he penalty of death is qualitatively different' from any other sentence. We are satisfied that this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." (quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976)))
485. Hoffman, supra note 7, at 151 ("The cruel and unusual punishments clause has, in effect, become a 'super due process clause' for death-penalty cases only, imposing greatly heightened procedural standards to ensure the fairness and accuracy of both the guilt and sentencing stages of capital trials.")
486. see also Louis D. Bilionis, The Unusualness of Capital Punishment, 26 OHIO N.U. L REV. 601, 614 (2000) ("[A] punishment is unusual if it is unreliable in practice. This sense is intimated when the critique complains of the risk of erroneous convictions of the innocent, as well as the risk of legally erroneous convictions." (emphasis omitted)).
487. This interpretation, unlike the others, has not been recognized by the Supreme Court.
488. See John F. Stinneford, The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L REV. 1739, 1745-46 (2008) (arguing that the framers understood the word "unusual" to mean "contrary to long usage," an interpretation that in practice would "precisely invert the evolving standards of decency test" by striking cruel innovations in punishment despite their popularity).
489. See ALEXANDER M. BlCKEL, THE LEAST DANGEROUS BRANCH 16-17 (1962) ("Qludicial review is a counter-majoritarian force in our system[W]hen the Supreme Court declares unconstitutional a legislative act⋯ it thwarts the will of the representatives of the actual people of the here and now.").
490. Id.
491. See Barry Friedman, TheBirthof an Academic (Obsession: The History of & Countermajoritarian Difficulty, Port Five, 112 YALE L.J. 153 (2002).
492. See, e.g., id. at 155-63 (discussing the scholarly preoccupation with countermajoritarian difficulty)
493. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L REV. 457, 495 (1994) (same)
494. Chemerinsky, supra note 1, at 70-72 (same)
495. Neal Kumar Katyal, Judges as Advice-givers, 50 STAN. L REV. 1709, 1709-10 (1998) (same)
496. Steven L Winter, Indeterminacy and Incommensurability m Constitutional Law, 78 CAL. L REV. 1441 (1990) (same).
497. For a sampling of the literature, see supra note 11. A notable exception is John Hart FJy, who famously tackled the countermajoritarian difficulty by justifying judicial review in democracy-enhancing terms
498. See generally ELY, supra note 1 (defending judicial review as a means of protecting rights that preserve the democratic process).
499. ROSEN, supra note 8, at xii.
500. See, e.g., THOMAS R. MARSHALL, PUBLIC OPINION AND THE SUPREME COURT ix (1989) (arguing that the Supreme Court "has been roughly as majoritarian as other American policy makers" and empirically supporting claim)
501. ROBERT G. McCLOSKEY, THE AMERICAN SUPREME COURT 23 (I960) (arguing that "the Supreme Court has seldom, if ever, flatly and for very long resisted a really unmistakable wave of public sentiment" and empirically supporting claim)
502. David G. Barnum, The Supreme Court and Public Opinion: Judicial Decision-Making m the Post-New Deal Period, 47 J. POL. 652, 662 (1985) (arguing that the Court's decisions in the new deal period have been "surprisingly consistent with majoritarian principles" and empirically supporting claim)
503. Robert A. Dahl, Derision-Ma/cmg in a Democracy: The Supreme Court as a National Police-Maker, 6 J. PUB. L. 279, 285 (1957) (arguing that "the policy views dominant on the Court are never for long out of line witJb. the policy views dominant among the lawmaking majorities of the United States" and empirically supporting claim).
504. See MARSHALL, supra note 281.
505. See, e.g., Friedman, supra note 9, at 613-14 ("As vacancies occur, presidents fill them with judges whose views are at least somewhat similar to their own and, more important, to the views of the people who elected them. Thus, as the views of the electorate change, the change is reflected in the changing composition of the judiciary.")
506. Mishler 6k Sheehan, supra note 256, at 171 ("The conventional explanation of the relationship between public opinion and Supreme Court decisions is that the influence of public opinion is indirect-that it is mediated largely through the impact of public opinion on presidential elections and the subsequent effects of presidential appointments on the ideological composition of the Court.")
507. Keith E. Whittington, Congress Before the Lochner Court, 85 B.U. L. REV. 821, 832 (2005) (discussing view of "the appointments process as the primary mechanism for linking the policy preferences of the justices and legislative majorities").
508. See generally Thomas M. Keck, Party Politics or Judicial Independence? The Regime Politics Literature Hits the law Schools, 32 LAW 6k SOC. INQUIRY 511 (2007) (noting that "[f]or at least fifty years, prominent political scientists have traced the decisions of the U.S. Supreme Court to the policy and political commitments of governing partisan regimes" and discussing the legal academy's newfound turn to regime politics literature to explain the Court's alliance with majority will).
509. On tliis score, Michael Klarman's work is as compelling as any I have seen.
510. See, e.g., Michael J. Klarman, Bush v. Gore Through the Lens of Constitutional History, 89 CAL L REV. 1721 (2001)
511. Michael J. Klarman, The Racial Origins of Modem Criminal Procedure, 99 MICH. L REV. 48 (2001)
512. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L REV. 1 (1996).
513. See, e.g., Balkin 6k Seigel, supra note 1
514. Post, supra note 11
515. Eskridge, supra note 36.
516. See supra note 281 (listing empirical research supporting the majoritarian claim)
517. supra note 285 (listing constitutional history scholarship supporting the majoritarian claim).
518. Larry D. Kramer, The People Themselves: Popular CONsnTunoNALisM and JUDICIAL REVIEW (2004) (arguing that the Constitution vests ultimate interpretive authority to "the people themselves" and that as a consequence, judicial supremacy is illegitimate).
519. See Friedman, supra note 11, at 279 ("[M]ost extant normative theories of judicial review rest on the capacity of judges to act in a manner contrary to political or popular preferences.").
520. See Heffernan, supra note 5, at 1446 (describing Supreme Court's consensus-based approach under the Eighth Amendment as "a sheep-dog process of judicial review, one diat rounds up stray states").
521. The 1964 Civil Rights Act provides a prime example of Congress performing this sheepdog function.
522. See, e.g., Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C.).
523. BlCKEL, supra note 275, at 18 ("Qjudicial review is a deviant institution in the American democracy.").
524. See Baldwin v. New York, 399 U.S. 117, 133 (1970)
525. Harlan, J., dissenting) (describing one of die "basic virtues" of federalism as "leav[ing) ample room for governmental and social experimentation in a society as diverse as ours").
526. Ker v. California, 374 U.S. 23,45 (1963) (Harlan, J., concurring).
527. The Supreme Court's Sixth Amendment right to jury decisions illustrate the point nicely.
528. See, e.g., Baldwin, 399 U.S. at 134-36
529. Harlan, J., dissenting) (criticizing the Court's majoritarian approach to Sixth Amendment protection on the basis diat it "ignores both the basic fairness of the New York procedure and the peculiar local considerations that have led the New York Legislature to conclude that trial by jury is more apt to retard than further justice for criminal defendants in New York City" and discussing especially congested trial dockets in New York City).
530. I credit Jim Gibson for this point, with thanks.
531. If Steven Calabresi and Nicholas Terrell are right in arguing that coalition building makes tyranny of the majority less likely at the federal level than at the state level, this is little consolation indeed.
532. See Steven G. Calabresi & Nicholas Terrell, The Number of States and the Economics of American Federalism (June 18, 2009), at 32-34, available at http://ssrn.com/abstract=1421903.
533. See, e.g., RANDY E. BARNETT, CONSTITUTIONAL LAW: CASES IN CONTEXT (2008)
534. ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (3d ed. 2006)
535. NOWAK & ROTUNDA, supra note 19
536. RONALD D. ROTUNDA, MODERN CONSTITUTIONAL LAW: CASES AND NOTES (9th ed. 2009).