Foundations of American Law (an
undergraduate course)
This is the first draft of an undergraduate introduction to law
and legal systems. Its basic purpose is to help you understand
our legal system and the means and merits of legal argument.
You will learn to appreciate the distinction between rhetorical
argumentation on disputed issues, as might appear in editorial
writing, and legal argumentation. Each weekly reading
consists of an explanation of legal concepts paired with one or
more important cases that either illustrate the concepts
directly or provide a basis on which to discuss the concepts.
The course culminates with a few weeks’ discussion
concerning pending or recently decided Supreme Court cases
so that you can appreciate the legal disputes of our time from
the legal perspective.
Each reading is covered in a podcast download and then
discussed in a seminar session. Audio can be accessed at
http://www.hydratext.com/foundations-2017. You can
subscribe to these episodes in a podcast app on your phone by
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adding the following URL in your app: http://
www.hydratext.com/foundations-2017?format=rss.
The following is one good option for a weekly schedule:
Meeting 1: Overview of the U.S. Legal System (3)
Meeting 2: Legal Systems and Arguments (33)
Meeting 3: What Is Good? (102)
Meeting 4: Law and Economics (153)
Meeting 5: Collective Action and Human Behavior (191)
Meeting 6: Fairness and Distributive Justice (212)
Meeting 7: Review and Midterm Test (239)
Meeting 8: Courts and Precedent (no audio) (247)
Meeting 9: The Administrative State (298)
Meeting 10: Interpretation (341)
Meeting 11: Deference and Scrutiny (344)
Meeting 12: Discussion of a current Supreme Court case
Meeting 13: Discussion of a current Supreme Court case
Meeting 14: Review and Final Test (397)
Christian Turner, November 7, 2017
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Meeting 1: Introduction
An Overview of the U.S. Legal System
Everyone learns in grade school the basic structure of the
government of the United States. We have a federal
government, established by the U.S. Constitution, and state
governments that operate under state constitutions. This dual
structure, in which both the federal government and the states
are sovereign entities, is called federalism. While the federal
government is hierarchically superior to state governments on
some issues, it lacks authority on others. As a result, the
relationship between the federal government and the states is
more complicated than a simple hierarchy.
The internal structure of both of these sorts of governments
is similar. Each consists of separately constituted branches
that conduct the traditional functions of government. At a
high level of generality:
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– The legislative branch passes laws.
– The executive branch carries out and enforces the laws.
– The judicial branch resolves disputes between the state
and citizens or between citizens by applying law.
This simple model of separate institutions wielding separate
powers turns out to be more complicated when we examine
what governments actually do. Executive branch officials, for
example, must make interpretations of statutes to enforce
them. And judges inevitably create meaning when
interpreting statutes. But this high level, grade-school model
of government is a useful starting point.
Legislatures
The Feds
Our national legislature is called Congress. It is created,
defined, and regulated by Article I of the U.S. Constitution.
The Congress is composed of two separate institutions that
must reach agreement in order to act: the House of
Representatives and the Senate. This feature is known as
bicameralism.
On the one hand, we have the House of Representatives,
the members of which typically represent local districts
defined by the state law. (These district maps are the subject
of ferocious battles concerning racism, partisan entrenchment,
and charges of corruption.) Each state may elect a number of
representatives roughly proportional to its population, with
each state’s being guaranteed at least one seat. For about a
century, the number of representatives has been fixed by law
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at 435. The upshot is that more populous states have more say
in the House, and members are elected in smaller, more local
elections than their state-wide counterparts in the Senate.
The rules of the House are complex, and much business is
conducted either by supermajority consensus to “suspend the
rules” or by “special rules” that govern the consideration and
debate of particular pieces of legislation.
The Senate, in contrast, consists of two members per state.
This gives the residents of small states disproportionate
influence over the Senate. For example, there are fewer than
300,000 Wyoming residents per senator but more than 19
million residents of California per senator. Another stark
contrast is the length of elected terms: senators serve six years
per term, and House representatives serve two-year terms
(which means, in today’s world, that they are never not
running for reelection).
The smaller Senate operates in a much less majoritarian
fashion than does the House. Almost nothing can be
accomplished without a 60-vote supermajority (enough to cut
off debate after a cloture vote), and individual senators can
delay, if not kill, legislation for days. Much in the Senate
occurs by unanimous consent, with compromise and
accommodation having characterized its practice - perhaps
until recently.
This very brief description of the two chambers of the
national legislature is intended both to convey basic
information to you but also to highlight how different
legislatures can be, both in composition and in their rules for
conducting business. Creating different structures for the
House and Senate was a key design choice made by the
Framers of the Constitution. They believed narrow interests
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would have a harder time dominating the legislature if
winning meant achieving passage in two representationally
distinct bodies. And, indeed, the Constitution requires that
any law must pass both houses of Congress in identical form
and be signed by the President (or be approved by 2/3 of both
Houses in the case of a presidential veto).
The States
Almost all state legislatures are similar in structure and
composition to Congress. They are bicameral and
representationally distinct. (Nebraska is a notable exception,
having a unicameral legislature.) They have the equivalent of
a House and a Senate, where senators are fewer in number
and longer-serving than state House representatives. Unlike
U.S. senators, though, state senators are constitutionally
required to represent districts of relatively equal populations,
a consequence of the “one-man, one-vote” principle the U.S.
Supreme Court announced in Reynolds v. Sims. Another
distinction worth noting in this brief summary is that more
than a quarter of state legislatures place term limits on House
and Senate members, a requirement that may not
constitutionally be placed on federal lawmakers. See U.S.
Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
There is another key distinction between federal and state
legislatures: their powers. State legislatures are empowered to
pass virtually any laws within the “police power,” defined as
authority to legislate to improve public health, safety, welfare,
or morals (sometimes called the “orthodox quartet”). This, as
the definition suggests, is a very broad power to regulate.
States may, of course, restrict legislative authority in their
state constitutions.
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Another constraint on state legislatures, which requires us
to use the “virtually” modifier above, is federal law. The
Supremacy Clause of Article VI of the U.S. Constitution
provides:
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any
State to the Contrary notwithstanding.
The effect of this clause is that any state law contrary to a
valid federal law is preempted and void. Federal law includes
constitutional provisions, statutes, and the decisions of federal
courts interpreting federal law. No state legislature may pass
a law abridging the freedom of speech, racially segregating
schools, or providing for less restrictive pollution regulations
than established under the federal Clean Water Act. No state
court may order the same.
Despite the Supremacy Clause, however, the federal
government is not fully superior to the states. Among other
reasons, this is because section 8 of Article I confers on
Congress the power to legislate only on enumerated subjects.
It provides that “Congress shall have Power to” legislate to do
such things as levy and collect taxes, to borrow money, to
regulate interstate and foreign commerce, to make
immigration laws, to coin money, to create roads and post
offices, and to declare war. By restricting congressional
lawmaking to these enumerated powers, the Constitution
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withholds from Congress the full scope of the police power. If
Congress cannot point to an enumerated power to justify a
piece of legislation, then Congress lacks the power to legislate
on that topic.
In addition to specifically listed subjects, article I, section 8
states that Congress has the power “to make all Laws which
shall be necessary and proper for carrying” into effect the
enumerate powers. We will discuss this issue further later in
the course, but a major struggle over the division of power
between the federal government and the states has been over
the interpretation of the enumerated powers and what is
necessary and proper to wielding them. In particular, and
especially in response to the Great Depression and the statesponsored racism of the Jim Crow era, Congress has passed
laws regulating intra-state activities, asserting such laws have
been necessary to solve national problems and that the
regulated activities affected interstate commerce. The
Supreme Court continues to struggle to define the outer
boundaries of congressional power.
Executives
The Feds
Article II of the Constitution provides that the national
Executive Branch is headed by the President of the United
States, in whom the “executive Power shall be vested.”
Presidents are elected by state-appointed electors, who are
usually appointed to reflect the winner of the state-wide
popular vote. This method of selecting the president is
controversial, having arisen from an early compromise
between slave and non-slave states. During the twentieth
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century, the winner among state electors, and therefore the
elected president, also won the national popular vote.
However, since 2000, two of the five elections have resulted in
a president who lost the national popular vote.
Presidents oversee an executive branch that consists of
many agencies, offices, and departments. The size and nature
of the federal bureaucracy changed greatly in the twentieth
century as a result of the Great Depression and the New
Deal. There are fifteen Cabinet Departments, headed by
Secretaries who report to the president and serve in the
Cabinet. But there are also other agencies, including the
Environmental Protection Agency, that are not cabinet
agencies or White House offices but nonetheless function as
other executive agencies. There are also independent agencies
that are headed by commissioners who are protected from atwill presidential dismissal — and therefore have some policy
independence from the administration. Examples include the
Federal Reserve Board and the Federal Trade Commission.
The rules promulgated by such agencies are not subject to the
centralized process through which the White House reviews
the regulations of other executive branch agencies.
The agencies and departments of the Executive Branch
engage in actions of many sorts, including rule-making,
construction projects, policing, war-making, foreign policy
talks and negotiations, and more. The president’s power
comes from his or her authority as Commander in Chief of the
military (section 2 of Article II) and from the authority to
“take Care that the Laws be faithfully executed” (section 3 of
Article II). And so while a presidential administration’s
authority to make and enforce rules almost always arises from
congressional statutes, presidents have also argued, especially
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in the national security context, that they have inherent
executive authority to undertake certain actions.
We will cover administrative rule-making later in this
course, but the upshot is that statutes often direct agencies to
do certain things but without specifying precisely what to do
in every instance. Agencies make rules to govern their
enforcement of statutes. The process of rule making is public,
includes public comment, and results in published regulations.
For example, when Congress writes in a statute that the EPA
shall establish such standards for air quality that are required
to protect the public health, the agency studies the health
effects of various pollutants, proposes detailed standards and
regulations, solicits public comments, and then publishes a
final set of regulations that it will then enforce.
The States
The executive branches of state governments differ from
that of the federal government in several key ways. While the
governor of each state is analogous to the president, most
states provide for popular election of other executive
positions, like the attorney general (the chief law enforcement
officer), the lieutenant governor, and the commissioners of
various other departments. While there has been much
constitutional debate at the federal level over whether
independent regulatory agencies are constitutional and
whether the Constitution requires a unitary executive (meaning
a system in which all executive power and control over
executive officers ultimately rests in the president), many
states have relatively weak governors and multiple sources of
executive authority.
Despite the plural nature of the executive in most states, the
process of agency rulemaking to implement and enforce
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statutes is broadly similar to that of the federal government.
But there are some important differences among states and
between some states and the federal government: whether
courts defer to agency interpretations of statutes and whether
the governor or the legislature can block agency rules before
they take effect, for example.
At this point, it is important to understand that, within the
states, there are important sources and enforcers of law at the
local level. City and county governments are responsible for
the laws that impact many of us most directly, including
zoning laws, traffic laws, business licensing, and noise and
trash ordinances. Local governments take different forms, but
they are often headed by an elected mayor and commission,
sometimes called a city or town council or county commission.
There are some important differences between cities (which
might have a degree of independence from state government,
in a kind of intra-state federalism) and counties, but we won’t
go further into that here.
One important feature of local government, though, is that
the legislature and executive often are combined in a city
council. The council both passes ordinances and directs the
execution of ordinances. It sometimes even plays an
adjudicative role, though its judgments may be appealed to
local and state courts.
The Judiciary
The courts in both the federal system and the states share
some common features. Most basically, when a party wants to
compel another party to do something it believes the law
requires (comply with a contract, pay damages, pay a fine, go
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to jail, stop some conduct, etc.), it makes a complaint in a
court.
In civil actions (those between parties based on tort or
contract - or otherwise not enforcing criminal statutes), a
plaintiff will write a complaint that states the facts of the
dispute and legal grounds upon which relief can be granted
by the courts. The plaintiff serves this complaint on the
defendant, thereby providing notice to the defendant, and
then files the complaint with a court.
Before getting into any dispute concerning the facts, the
defendant may move to dismiss the complaint, either on
grounds that the court lacks the power, or jurisdiction, to
adjudicate the dispute or on grounds that, even if the facts
alleged were all true, there is no legal basis for relief. If the
complaint or some parts of it survive a motion to dismiss, the
defendant must answer the complaint, setting out its version of
the facts, denying or accepting the various assertions of
liability, and setting out legal defenses.
After this process of filing a complaint, adjudicating any
motions to dismiss, and filing an answer, the case proceeds to
discovery, during which the parties gather evidence from one
another in the form of depositions, written questions, or
demands to produce documents. After evidence is gathered, a
party may move for summary judgment, arguing that, viewing
the evidence in a light most favorable to the other side, no
reasonable juror could possibly find for that other side.
If the court does not grant summary judgment, a trial is
held, either in front of a jury or only before a judge (known as
a bench trial). After both sides have presented their evidence,
the finder of fact will determine whether the legal standards at
issue have been met, and the court will enter a judgment. For
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most civil actions, the plaintiff must prove his or her case by a
preponderance of the evidence, meaning only that it is more likely
than not that the legal standard entitling him or her to relief
was met. There are some laws, though, that require the
plaintiff to prove the case by clear and convincing evidence. What
burden a plaintiff must meet is called the burden of proof or
standard of proof.
In criminal prosecutions, a public prosecutor (a district
attorney or United States Attorney), rather than a private
plaintiff, makes the initial complaint. But filing a complaint
with a court is not always sufficient in criminal law. Rather,
there are generally two ways to start a criminal prosecution.
For serious crimes, normally felonies that might subject a
defendant to lengthy imprisonment, the prosecutor must
present a case to a grand jury. The grand jury is composed of
ordinary people, and it may or may not return an indictment
depending on the strength of the evidence the prosecutor
presents. (In practice, indictments are not at all difficult to
secure.) After an indictment, the defendant may be arrested
or summoned to appear in court. There, the defendant is
arraigned, meaning subjected to a proceeding at which the
defendant is informed of the charges and enters a plea. In
most cases, the defendant will have made a plea bargain with
the prosecution and so enters a guilty plea for the charges that
have been negotiated. Less serious crimes, usually
misdemeanors, may proceed by information, which is more like
a civil complaint but filed here by a public prosecutor, and
need not go through a grand jury for indictment.
After arraignment, there is investigation, similar to civil
discovery, and, ultimately, a plea or a trial. The trial, as in civil
cases, may be before a jury or a judge. The burden of proof
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the prosecutor must meet is, famously, guilt beyond a reasonable
doubt.
In both civil actions, the losing party may appeal to a
hierarchically superior court after judgment is entered
(whether after trial or on granting a motion to dismiss or for
summary judgment – and with respect to some exceptional
decisions, even during trial court litigation). After criminal
convictions, the defendant may appeal, but the state generally
may not appeal an acquittal, whether by jury or judge, on
account of the constitutional prohibition on being “twice put
in jeopardy.” The role of a court of appeals (or appellate
court) is to determine whether something went wrong in the
trial court that justifies reversing that court’s judgment or
sending the case back down to the trial court for further
litigation. Importantly, appellate courts are not concerned
with re-determining the facts in a case. Rather, they are
concerned with errors of law. Appellate courts may determine
that the factual record does not support a trial court's legal
conclusion or that a piece of evidence should not have been
admitted as a matter of law, but they will not hear new
evidence. And they generally reverse factual findings only in
cases of clear error.
Grounds for appeal can be, for example, that the
instructions given to the jury misstated the law, that certain
evidence should have been excluded or included, that a
governing statute was misinterpreted, that the law applied
was unconstitutional, or that the evidence was legally
insufficient. Some of these judgments are within the discretion
of the trial court, meaning that court is charged with
exercising some judgment or engaging in some weighing and
that its conclusions are given deference by reviewing courts of
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appeals. Other judgments are purer issues of law that are
reviewed by courts of appeals de novo, meaning with no
deference to the judgment of the trial court. For example,
appellate courts will review de novo a trial court’s
interpretation of a statute. The standard of review refers to the
method an appellate court will use to review the decision of
the trial court: whether de novo, whether the trial court’s
decision was an abuse of discretion, whether its factual judgment
was clearly erroneous, and sometimes other formulations. The
first job of an appellate advocate is to understand the standard
of review an appeals court will apply to decide whether a trial
court’s decision was wrong, as this will shape the type of
arguments made to the court of appeals.
In some states, there are only two layers of courts: trial
courts and the state supreme court. But in most, as in the
federal system, there are three layers: the trial or district
court, the intermediate court of appeals, and a supreme court.
Very often there is a right to appeal and to be heard (or at
least read) by the intermediate appellate court, but the
supreme court has discretion whether to hear an appeal from
a decision of the intermediate court. The U.S. Supreme
Court, for example, agrees to hear only about 1% of the cases
submitted to it on appeal.
The Feds
The Judicial Branch of the federal government is defined in
Article III of the U.S. Constitution.
The judicial Power of the United States, shall be vested
in one supreme Court, and in such inferior Courts as the
Congress may from time to time ordain and establish.
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Interestingly, the Constitution does not require the system of
courts we have now that includes trial courts (called federal
district courts) and intermediate appellate courts (called
courts of appeals). Only the Supreme Court is created
directly by Article III, but Congress has passed statutes
establishing the lower courts per the power granted to it in
the above clause. There are now over ninety judicial districts,
each with a district court, and each district court is staffed by
multiple districts judges. These districts fall within eleven
federal circuits. Each circuit has a court of appeals that hears
appeals from the districts within its territory. So, for example,
federal cases in Athens, Georgia are brought in the United
States District Court for the Middle District of Georgia. Any
appeals from that district court are brought before the United
States Court of Appeals for the Eleventh Circuit (which hears
appeals from all district courts in Alabama, Florida, and
Georgia).
Appeals in circuit courts are usually heard by a panel of
three judges, drawn from the court’s pool of judges. There are
thirteen active judges on the Eleventh Circuit and a number
of senior judges (who also sit on appellate panels). The Ninth
Circuit, which includes California, has seats for twenty-nine
active judges, and a large number of judges who have taken
senior status.
Decisions by circuit court panels are usually final and may
be appealed only by petitioning for a writ of certiorari to the
U.S. Supreme Court. As mentioned above, most such efforts
at Supreme Court review are denied without explanation.
Some cases, however, are first taken up by a larger panel of
the circuit court of appeals, often all the active judges. This is
known as an en banc proceeding.
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The litigation process, in a nutshell, looks like this: There’s
a complaint or criminal equivalent, efforts to dismiss the
complaint, taking of evidence, motions for summary
judgment, trial, and then appeals from any final judgments in
the trial court. In the federal system, the ruling of a district
court is appealed to the appropriate circuit court of appeals. A
three-judge panel will hear the case. Its decision may be
appealed to the whole circuit and an en banc proceeding
requested, or that step can be skipped and a petition for a writ
of certiori from the U.S. Supreme Court filed.
Not every case, however, may be brought in every court. To
hear and resolve a case, a court must have valid judicial
power to do so. And so all courts, federal or state, must first
decide whether they have the power to adjudicate the case.
This judicial power is called jurisdiction. There are two types.
First, the federal constitutional command to provide Due
Process limits a court’s ability to subject a defendant to an
adjudication where that litigant has had no significant ties to
the court’s geographic range. To haul a litigant into court, the
court must have personal jurisdiction over the litigant, meaning
that the litigant’s ties to the jurisdiction must be sufficient,
unless the litigant waives this protection.
More importantly, though, and not subject to waiver by any
parties is a court’s subject matter jurisdiction. This refers to the
court’s power to speak to the issues raised in the litigation.
Article III of the Constitution provides that federal courts
have power over cases “arising under” the Constitution,
federal laws, and treaties. Such disputes create a type of
subject matter jurisdiction called federal question jurisdiction,
because they call for an application of federal laws. Another
common type of federal jurisdiction is diversity jurisdiction,
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which gives federal courts the power to resolve any dispute
between citizens of different states, even those arising only
under state law, such as pure contract disputes. (Note that
article III provides other grounds for federal jurisdiction,
including in cases in which the United States is a party.)
Article III also states that Congress may make exceptions and
regulations to govern federal court jurisdiction. It has done so
with respect to diversity jurisdiction, providing that disputes
between citizens of different states that do not raise federal
questions may only be brought in federal court if the amount
in controversy exceeds $75,000. (It has also provided that
there are some cases that may only be brought in federal
courts, providing exclusive jurisdiction. One example is
actions for bankruptcy.)
One last word about federal courts for now. Federal judges
are nominated by the President and confirmed by the Senate.
They are then constitutionally protected from dismissal and
given life tenure and salary protection. Only impeachment in
the House and conviction in the Senate for high crimes and
misdemeanors can result in removal from the bench. These
protections from the other branches are efforts to promote the
independence of the federal judiciary.
The States
State courts are where most disputes are litigated and most
crimes prosecuted. Breach of contract, slip and fall torts,
automobile accidents, zoning violations, murders, and many
of the causes of action that come to mind are disputes over the
application of state law and are resolved in state courts.
Again, to exert judicial authority over a litigant, the court
must have personal jurisdiction over that litigant. So someone
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with no ties at all to West Virginia cannot be made to defend a
lawsuit there.
As noted above, the tripartite system of the federal courts is
often mirrored in state courts. But there are in states
specialized courts: small claims courts, family courts, probate
courts (wills), local government courts, drug courts,
misdemeanor courts, and the like. Often times, appeals from
such courts are first heard in state trial courts before
proceeding through the appellate courts. The procedures for
bringing complaints and for conducting litigation differs
substantially from state to state - but is broadly similar to the
outline sketched above.
One striking difference between federal courts and state
courts is that in nearly all states some judges are elected by
the people rather than nominated and confirmed.
A final note: state courts may hear cases raising not only
issues of state law but also of federal law. Sometimes when a
litigant is sued in state court and there are issues of federal
law (or any other ground for federal jurisdiction), the litigant
can remove the case to a federal district court. Litigation then
proceeds there, at least on those issues successfully removed.
But if a case involving federal law is litigated through the
state court system, then, after the highest state court has
issued a judgment or refused to hear the case, a losing party
may petition the U.S. Supreme Court for certiorari, just as if
the case had been resolved by a federal court of appeals. The
U.S. Supreme Court regularly hears cases appealing
judgments of state supreme courts.
The Common Law
We have described courts thus far as though they
adjudicate the application of laws created by other
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institutions, most often legislatures. This is not so. For ages,
courts have been a source of law’s content, not just a body
charged with deciding cases under it.
The “common law” refers to the body of law created by
courts in case-by-case decisions over time. Almost all states in
the U.S. are “common law” jurisdictions, meaning that courts
will apply judge-made law to settle disputes where the
legislatures have not superseded such law with statutes.
The law governing liability for accidents (a part of a field of
law called tort law), the law governing contracts, and even, in
ages gone by, criminal law, have been the product of judicial
development over time. To know what the law is, you need to
read relevant cases that announce rules or read books that
gather the cases and synthesize their resolutions into rules.
We will talk more about rules and legal argument in the
sections that follow. For now, it is enough to observe that
when a court decides a case, it gives a rationale. The common
law arises from applying such rationales in future cases.
Next Steps
This introduction has outlined the major structures of the
legal system we have in the United States. But we have not
yet discussed the substance of the law, how it is made and
argued, or how to identify it. The next section broadens our
inquiry. Instead of thinking about our law, we will turn to
understanding the law a little better.
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Marbury v. Madison, 1 Cranch
137 (1803)
The famous case of Marbury arose following the election of
1801, in which President John Adams, a Federalist, was
defeated by Thomas Jefferson, a Democratic-Republican.
The Federalists, faced with losing control of the executive and
legislative branches, passed the Judiciary Act of 1801. The
Act expanded the number of district and circuit court
positions, allowing these new and vacant seats to be filled by
the lame-duck Federalist president and confirmed by the
outgoing Federalist Congress.
These last-minute appointees became known as the
“Midnight Judges,” and the plaintiff, William Marbury, was
one of them. In order to effectuate the appointment of the
freshly-minted judges, newly-appointed Chief Justice John
Marshall (who wrote this opinion) was asked to deliver to
each judge their commission. (Chief Justice Marshall had
been President Adams’ Secretary of State and continued
acting in the role through the end of President Adams’ term,
at the President’s request.)
Most of the commissions made it into the hands of their
recipients, but Marbury’s was among those that were not
delivered before President Adams left office. After President
Jefferson was sworn in, he ordered the new Secretary of
State, James Madison, not to deliver the remaining
commissions. Because Marbury could not assume his new
judicial post, without the commission, he filed a petition for a
writ of mandamus directly in the Supreme Court. (A writ of
mandamus is a judicial order for a public official to do, or to
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refrain from doing, some non-discretionary act.) In short,
Marbury sought to have the Supreme Court order Secretary
Madison to deliver the commission to which Marbury was
entitled.
One of the issues before the Court (which is discussed in
the excerpt of the opinion below) is whether Marbury was
authorized to file the writ directly with the Supreme Court.
The Supreme Court's authority to hear cases – its jurisdiction –
is defined by Article III of the Constitution. Writs of
mandamus are not specifically contained within the list of
cases or controversies over which the Court has original
jurisdiction. Original jurisdiction means that the case can be
submitted directly to the Supreme Court, rather than coming
to the Court on appeal from a state supreme court or a lower
federal court. Here is the relevant text:
In all cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be
party, the Supreme Court shall have original
jurisdiction. In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction, both as
to law and fact, with such exceptions, and under such
regulations as the Congress shall make.
The other law relevant to the question whether the Supreme
Court can issue a write of mandamus itself, without having
the case come to it on appeal, is the above-mentioned
Judiciary Act of 1801. It specifically states that the Supreme
Court has the power to issue writs of mandamus.
The Court agreed with Marbury that (a) Marbury was
entitled to the commission, (b) that a writ of mandamus was
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an appropriate remedy, and (c) that the Judiciary Act of 1789
purported to grant the Supreme Court original jurisdiction to
issue writs of mandamus to public officials. But this raised
two further – and critical – questions:
1. Is the grant of original jurisdiction in the Judiciary
Act consistent with Article III of the Constitution,
which contains a more limited definition of the Court’s
original jurisdiction?
2. If a law is unconstitutional, do courts have the power
and/or obligation not to enforce it? The answer to this
question defines a basic allocation of authority
between the courts and the political branches.
What follows is the opinion for the Court by Chief Justice
Marshall resolving these questions.
Marshall, J.:
....
The act to establish the judicial courts of the United States
authorizes the supreme court “to issue writs of mandamus, in
cases warranted by the principles and usages of law, to any
courts appointed, or persons holding office, under the
authority of the United States.”
The secretary of state, being a person holding an office
under the authority of the United States, is precisely within
the letter of the description; and if this court is not authorized
to issue a writ of mandamus to such an officer, it must be
because the law is unconstitutional, and therefore absolutely
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incapable of conferring the authority, and assigning the duties
which its words purport to confer and assign.
The constitution vests the whole judicial power of the
United States in one supreme court, and such inferior courts
as congress shall, from time to time, ordain and establish. This
power is expressly extended to all cases arising under the laws
of the United States; and consequently, in some form, may be
exercised over the present case; because the right claimed is
given by a law of the United States.
In the distribution of this power it is declared that “the
supreme court shall have original jurisdiction in all cases
affecting ambassadors, other public ministers and consuls,
and those in which a state shall be a party. In all other cases,
the supreme court shall have appellate jurisdiction.”
It has been insisted, at the bar, that as the original grant of
jurisdiction, to the supreme and inferior courts, is general,
and the clause, assigning original jurisdiction to the supreme
court, contains no negative or restrictive words; the power
remains to the legislature, to assign original jurisdiction to
that court in other cases than those specified in the article
which has been recited; provided those cases belong to the
judicial power of the United States.
If it had been intended to leave it in the discretion of the
legislature to apportion the judicial power between the
supreme and inferior courts according to the will of that body,
it would certainly have been useless to have proceeded further
than to have defined the judicial power, and the tribunals in
which it should be vested. The subsequent part of the section
is mere surplusage, is entirely without meaning, if such is to
be the construction. If congress remains at liberty to give this
court appellate jurisdiction, where the constitution has
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declared their jurisdiction shall be original; and original
jurisdiction where the constitution has declared it shall be
appellate; the distribution of jurisdiction, made in the
constitution, is form without substance.
Affirmative words are often, in their operation, negative of
other objects than those affirmed; and in this case, a negative
or exclusive sense must be given to them or they have no
operation at all.
It cannot be presumed that any clause in the constitution is
intended to be without effect; and therefore such a
construction is inadmissible, unless the words require it.
If the solicitude of the convention, respecting our peace
with foreign powers, induced a provision that the supreme
court should take original jurisdiction in cases which might be
supposed to affect them; yet the clause would have proceeded
no further than to provide for such cases, if no further
restriction on the powers of congress had been intended. That
they should have appellate jurisdiction in all other cases, with
such exceptions as congress might make, is no restriction;
unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial
system, divides it into one supreme, and so many inferior
courts as the legislature may ordain and establish; then
enumerates its powers, and proceeds so far to distribute them,
as to define the jurisdiction of the supreme court by declaring
the cases in which it shall take original jurisdiction, and that
in others it shall take appellate jurisdiction; the plain import of
the words seems to be, that in one class of cases its
jurisdiction is original, and not appellate; in the other it is
appellate, and not original. If any other construction would
render the clause inoperative, that is an additional reason for
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rejecting such other construction, and for adhering to their
obvious meaning.
To enable this court then to issue a mandamus, it must be
shewn to be an exercise of appellate jurisdiction, or to be
necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction
may be exercised in a variety of forms, and that if it be the
will of the legislature that a mandamus should be used for that
purpose, that will must be obeyed. This is true, yet the
jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction, that it
revises and corrects the proceedings in a cause already
instituted, and does not create that cause. Although,
therefore, a mandamus may be directed to courts, yet to issue
such a writ to an officer for the delivery of a paper, is in effect
the same as to sustain an original action for that paper, and
therefore seems not to belong to appellate, but to original
jurisdiction. Neither is it necessary in such a case as this, to
enable the court to exercise its appellate jurisdiction.
The authority, therefore, given to the supreme court, by the
act establishing the judicial courts of the United States, to
issue writs of mandamus to public officers, appears not to be
warranted by the constitution; and it becomes necessary to
enquire whether a jurisdiction, so conferred, can be exercised.
[And so the Court here has answered the first question,
highlighted above, in the negative: this aspect of the Judiciary
Act is unconstitutional. It must now answer the second, the
question that makes this case the most famous case in U.S.
constitutional law: Should or must courts enforce
unconstitutional acts?]
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The question, whether an act, repugnant to the constitution,
can become the law of the land, is a question deeply
interesting to the United States; but, happily, not of an
intricacy proportioned to its interest. It seems only necessary
to recognize certain principles, supposed to have been long
and well established, to decide it.
That the people have an original right to establish, for their
future government, such principles as, in their opinion, shall
most conduce to their own happiness, is the basis, on which
the whole American fabric has been erected. The exercise of
this original right is a very great exertion; nor can it, nor
ought it to be frequently repeated. The principles, therefore,
so established, are deemed fundamental. And as the authority,
from which they proceed, is supreme, and can seldom act,
they are designed to be permanent.
This original and supreme will organizes the government,
and assigns, to different departments, their respective powers.
It may either stop here; or establish certain limits not to be
transcended by those departments.
The government of the United States is of the latter
description. The powers of the legislature are defined, and
limited; and that those limits may not be mistaken, or
forgotten, the constitution is written. To what purpose are
powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be
passed by those intended to be restrained? The distinction,
between a government with limited and unlimited powers, is
abolished, if those limits do not confine the persons on whom
they are imposed, and if acts prohibited and acts allowed, are
of equal obligation. It is a proposition too plain to be
contested, that the constitution controls any legislative act
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repugnant to it; or, that the legislature may alter the
constitution by an ordinary act.
Between these alternatives there is no middle ground. The
constitution is either a superior, paramount law, unchangeable
by ordinary means, or it is on a level with ordinary legislative
acts, and like other acts, is alterable when the legislature shall
please to alter it.
If the former part of the alternative be true, then a
legislative act contrary to the constitution is not law: if the
latter part be true, then written constitutions are absurd
attempts, on the part of the people, to limit a power, in its own
nature illimitable.
Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount
law of the nation, and consequently the theory of every such
government must be, that an act of the legislature, repugnant
to the constitution, is void.
This theory is essentially attached to a written constitution,
and is consequently to be considered, by this court, as one of
the fundamental principles of our society. It is not therefore to
be lost sight of in the further consideration of this subject.
If an act of the legislature, repugnant to the constitution, is
void, does it, notwithstanding its invalidity, bind the courts,
and oblige them to give it effect? Or, in other words, though it
be not law, does it constitute a rule as operative as if it was a
law? This would be to overthrow in fact what was established
in theory; and would seem, at first view, an absurdity too
gross to be insisted on. It shall, however, receive a more
attentive consideration.
It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the rule
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to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must
decide on the operation of each.
So if a law be in opposition to the constitution; if both the
law and the constitution apply to a particular case, so that the
court must either decide that case conformably to the law,
disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must determine
which of these conflicting rules governs the case. This is of
the very essence of judicial duty.
If then the courts are to regard the constitution; and the
constitution is superior to any ordinary act of the legislature;
the constitution, and not such ordinary act, must govern the
case to which they both apply.
Those then who controvert the principle that the
constitution is to be considered, in court, as a paramount law,
are reduced to the necessity of maintaining that courts must
close their eyes on the constitution, and see only the law.
This doctrine would subvert the very foundation of all
written constitutions. It would declare that an act, which,
according to the principles and theory of our government, is
entirely void; is yet, in practice, completely obligatory. It
would declare, that if the legislature shall do what is expressly
forbidden, such act, notwithstanding the express prohibition,
is in reality effectual. It would be giving to the legislature a
practical and real omnipotence, with the same breath which
professes to restrict their powers within narrow limits. It is
prescribing limits, and declaring that those limits may be
passed as pleasure.
That it thus reduces to nothing what we have deemed the
greatest improvement on political institutions – a written
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constitution – would of itself be sufficient, in America, where
written constitutions have been viewed with so much
reverence, for rejecting the construction. But the peculiar
expressions of the constitution of the United States furnish
additional arguments in favour of its rejection.
The judicial power of the United States is extended to all
cases arising under the constitution.
Could it be the intention of those who gave this power, to
say that, in using it, the constitution should not be looked
into? That a case arising under the constitution should be
decided without examining the instrument under which it
arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by
the judges. And if they can open it at all, what part of it are
they forbidden to read, or to obey?
There are many other parts of the constitution which serve
to illustrate this subject.
It is declared that “no tax or duty shall be laid on articles
exported from any state.” Suppose a duty on the export of
cotton, of tobacco, or of flour; and a suit instituted to recover
it. Ought judgment to be rendered in such a case? ought the
judges to close their eyes on the constitution, and only see the
law.
The constitution declares that “no bill of attainder or ex
post facto law shall be passed.”
If, however, such a bill should be passed and a person
should be prosecuted under it; must the court condemn to
death those victims whom the constitution endeavors to
preserve?
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“No person,” says the constitution, “shall be convicted of
treason unless on the testimony of two witnesses to the same
overt act, or on confession in open court.”
Here the language of the constitution is addressed
especially to the courts. It prescribes, directly for them, a rule
of evidence not to be departed from. If the legislature should
change that rule, and declare one witness, or a confession out
of court, sufficient for conviction, must the constitutional
principle yield to the legislative act?
From these, and many other selections which might be
made, it is apparent, that the framers of the constitution
contemplated that instrument, as a rule for the government of
courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to
support it? This oath certainly applies, in an especial manner,
to their conduct in their official character. How immoral to
impose it on them, if they were to be used as the instruments,
and the knowing instruments, for violating what they swear to
support?
The oath of office, too, imposed by the legislature, is
completely demonstrative of the legislative opinion on this
subject. It is in these words, “I do solemnly swear that I will
administer justice without respect to persons, and do equal
right to the poor and to the rich; and that I will faithfully and
impartially discharge all the duties incumbent on me as
according to the best of my abilities and understanding,
agreeably to the constitution, and laws of the United States.”
Why does a judge swear to discharge his duties agreeably
to the constitution of the United States, if that constitution
forms no rule for his government? if it is closed upon him, and
cannot be inspected by him?
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If such be the real state of things, this is worse than solemn
mockery. To prescribe, or to take this oath, becomes equally a
crime.
It is also not entirely unworthy of observation, that in
declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made in
pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a law
repugnant to the constitution is void; and that courts, as well
as other departments, are bound by that instrument.
The rule must be discharged.
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Meeting 2: Legal Systems and
Arguments
The Law
We’ve so far gotten an overview of the American legal system:
what its parts are and what these parts do. But we’ve talked
about the law as if we know what it is and as if we have only
to look at what these parts have done to know what the law is.
There is a more basic set of questions and more basic skills we
need in order to understand “the law.” Isn’t that what law
school is for?
Frank Abagnale, the anti-hero whose adventures were
chronicled in the film Catch Me If You Can, forged a transcript
and passed the bar exam never having attended law school.
Eight weeks of study, apparently, was enough for him to pass
the exam on his third try. People I’ve heard discuss the film
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often cite this fact as evidence of Mr. Abagnale's unusual gifts.
I, too, was astounded by Mr. Abagnale’s resourcefulness and
adventures, but I didn’t find it at all exceptional that he was
able to pass the bar. You see, law is just not very hard.
Any reasonably intelligent person can fairly quickly learn
enough about law to understand its practice and to make legal
arguments. Further experience can help perfect one’s sense of
what makes arguments compelling or weak. But the basic
skill and knowledge are within your grasp.
Let’s get started
For many outsiders, law is a discipline seemingly steeped in
obscure methods and arcane procedures. Many entering law
students think that a lawyer’s training is in knowing what the
laws are. They believe they will be expected to master a list of
laws in each subject and that lawyers are people who know
these lists. The way we often teach it, as case after case
illustrating discrete types of laws and disputes, may initially
reinforce this assumption. But it could not be more wrong. As
with most fields, expertise in law lies in knowing how to learn more
of it, not in an encyclopedic knowledge of all its details. There
are concepts and methods that, once acquired, allow you to do
law: to read it, understand it, criticize it, and make it. Put
simply, becoming a lawyer or a citizen versed in law is about
learning a set of concepts and a language, not a list of laws or
where to look laws up.
Here’s as good a starting point as any: What is a legal
argument? It would seem to be an argument about the law.
And so we must ask what the law is and what sorts of
arguments one could have about it.
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At its most basic, and sweeping some philosophical
problems under the rug for the moment, the body of law is a
set of information that will be part of the grounds on which a
court will decide whether to compel an entity – whether a
private person, a corporation, or a government official – to do
something it wishes not to do. Susan wants John to do
something, and the rest of society, acting through a court, will
force him to do it if the court identifies a law that says he
must. When Susan says that the law compels John to do this
undesired thing and John disagrees, they are having a legal
dispute and will make legal arguments.
A legal dispute involves a set of:
– one or more laws,
– facts,
– and the undesired things the court may order if it finds,
from the facts, a violation of the law.
The body of information that is the law itself consists primarily
of statutes (acts of legislatures), administrative rules (acts of
governmental agencies), contracts (acts of private parties),
and common law (the collected acts of courts that have made
law to decide cases). These laws attempt to guide behavior by
stating that if some class of facts occurs, then some official
judgment should follow. No matter how long or convoluted
their text or the judicial cases announcing them, all primary
laws boil down to: If X occurred, then a court should order Y.
The trick is translating the typically vague or ambiguous text
in which a law is encoded into this simple form. The opinions
of courts in other cases (or the informational outputs of other
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legal institutions) can and sometimes must be used when
deciding among possible translations.
The facts of the case are another bit of input information that
may be contested by parties. In the above formulation,
whether X occurred, even if we agree about what the law
means by X, might be uncertain. For example, we may agree
that the victim was shot at point-blank range. But the
defendant is only guilty of murder if, among other things, she
was the one who killed the victim. To show a law violation is
to show that the law’s criterion is satisfied by the facts to a
given degree of certainty, called the standard of proof. For
example, we must put on evidence that convinces us “beyond
a reasonable doubt” that the criteria for murder, which
include the fact that it was the defendant who caused the
victim’s death, have been met in order to conclude the murder
law was violated by the defendant.
The undesired thing that the defendant is fighting to avoid
might be paying money to another private citizen or the state,
or serving a prison sentence, or ceasing to operate a factory.
And the court’s judgment will come in the form of yet more
information, orders and opinions, that may serve as part of
the input for future judgments. When a court orders such an
undesired thing, we call it a remedy.
A legal argument
The job of the lawyer, in the end, is to identify the relevant
informational inputs – the applicable law and the relevant
facts – and to argue about how they constrain the possible
output (the judgment). “Your honor, facts x, y, and z occurred
here. And law A says that if those three things happened, then
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the defendant must pay the plaintiff damages.” Or: “Your
honor, the law says that a fine of $100 must be paid by anyone
driving between ten and twenty miles per hour above the
speed limit on state highways. Here, radar shows the
defendant was driving seventeen miles per hour above the
posted speed limit of state highway four. Therefore, he must
pay $100."
A basic legal argument goes in several parts:
1. Separate the dispute between the parties into separate
possible legal grounds for liability, i.e., the separate
possible law violations.
2. For each possibly applicable legal ground, parse the
law to determine the criteria, X, under which it will be
found to be violated; and
3. Argue that HERE, X should or should not be found
BECAUSE (at which point you apply the facts to
determine whether the criteria have been met).
Again, you must separate the overall dispute into component
legal issues. Then, for each issue, formulate criteria that will
suffice to prove a violation. Finally, apply the facts to
determine whether the criteria were met.
Your job as a lawyer is first to bring order to the stream of
facts relating to a dispute (and, believe me, aggrieved parties
will deliver an uncoordinated jumble of facts and outrages,
and they will argue that all this means they should win a
bunch of money). Identify the separate complaints that an
aggrieved party is making, and match these with potential
grounds for liability, whether based on contract or publicly-
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made laws. This involves some skill and experience searching
and sifting through laws. Fear not, we’ll return to why it’s not
all that hard to understand law’s sources and to figure out,
without studying a complete list, what the law probably is and
where it is probably recorded.
To reinforce how legal argument works, let’s imagine a
lawyer as an archer. Your first task is to set up targets at
which to shoot. Given a dispute, you need first to understand
what laws are implicated, i.e. which targets to select. One by
one, for each law, set up the target by explaining what the
criteria are for proving a violation. This may involve
acknowledging ambiguity or disagreement among other
courts that have applied the law. Indeed, we might expend
considerable energy arguing over what the target should be
and what its criteria should be. Next, reach into your quiver
(the set of facts) and fire arrows at the target. That is, explain
why the law is or is not violated using the facts of our case.
Set up targets. Describe what it means to hit one. Fire arrows
and explain why they do or do not hit the target.
The most basic legal argument goes: Plaintiff argues that
Defendant is liable for violating law A. Law A is violated if
criteria X is satisfied. HERE, X is (or is not) satisfied,
BECAUSE the facts do or (do not) satisfy X. Step one:
Identify the law that applies. Step two: Identify that law’s
criteria. Step three: Apply the law to the facts.
I have found that the archery analogy, emphasizing order,
law identification, and deployment of facts, helps students to
understand what makes for a good argument. Let us consider
a concrete example of a fight and possible legal arguments.
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Example
Please read Orin Kerr’s blog post, Bad Answers, Good Answers,
a n d Te r r i fi c A n s w e r s , a t h t t p : / / v o l o k h . c o m / p o s t s /
1168382003.html.
Law is, to the contrary, hard
What I've discussed is just the most basic part of the basic
skill of arguing about law. Law itself is, to me, an intensely
fascinating subject. I study it as the set of rules we use to
govern ourselves. It could hardly get more interesting than to
think deeply about why we have decided to govern ourselves
this way and whether we could do a better job of it. Such
questions call for the full use of other areas of knowledge:
psychology, economics, statistics, sociology, physics,
philosophy, and just about every field you can think of that
grapples with what is really going on inside of and between us
humans.
Even though I’ve suggested here that law is easy, there is an
important sense in which I’m wrong about that. While it is
indeed easy to understand how we go about law, getting law
right is very hard indeed. In fact, the most important piece of
advice I got from a law school professor and that I continually
turn over and keep at the forefront of my mind is: “Make the
easy problems hard.”
It may be easy to learn how to make a legal argument:
Parties are fighting about something. Law A speaks to
that thing and has criteria X. Here X is met or not met
based on the given set of facts.
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But to make a really great argument, we need to appreciate
why the parties are fighting, what justifies their positions. It’s
in understanding, deeply, the strength of the intuitions
justifying your opponent’s position, that you can understand
what law A really concerns, and why figuring out and
applying criteria X is, in fact, a hard problem that may divide
courts. My point here is only that it’s easy to be able to
undertake this very hard work.
What are the laws?
In the last section, we started with an explanation of the basic
skill of making an argument by connecting a law with the
facts of a case. Like an archer, you set up a target (the law
relevant to an aspect of the dispute), and you then fire your
arrows (the facts of your case), arguing that they either do or
do not hit the target BECAUSE (insert your argument for
why the facts do or do not meet the criteria established by the
law here). Rinse and repeat for each law applicable to the
dispute. That's the core mechanic at the heart of litigationoriented practice.
But how do we know what the laws are? And what kinds of
arguments count as good "BECAUSE arguments"? There are
three basic elements essential to a solid understanding of legal
systems. First, you need to know how the legal system works
so that you can tell what the laws are, what they should be,
and how they are enforced. Second, you need to know,
mechanically, how to make an argument (first introduced in
the last section). And third you need to know how to judge
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the quality of an argument. What kinds of arguments are “in
bounds,” and what makes them relevant.
In this section, I’m going to show you what the basic areas
of a legal system are: Tort, Contract, and Criminal Law, all
governed by Constitutional Law and Procedure. This subject
arrangement is not arbitrary and knowing how to derive it
will help you to develop intuitions for what the law should be
in any give case.
A legal system
Let’s talk about legal systems. How do we know what the
laws are or should be? You no doubt have some familiarity
with contracts, lawsuits, prosecutions, and the like. You
surely know, as well, of wills and gifts. All these things seem
like possible subjects of court cases, all of them laws of one
kind or another. How do we make sense of this jumble of
things a court might have to deal with?
It’s easiest if we go back to first principles, and so you’ll
need some patience with abstraction. Start by thinking not of
formal, developed legal systems, but of mere collections of
people. “In the beginning,” suppose we have a group of
people who decide that life will be easier if they work
together. This group decides it will undertake certain joint
projects and has some ability to coerce its members to
cooperate. Maybe all they can do is kick you out. Maybe they
can beat you up, imprison you, make you pay a fine, or make
you compensate someone else in the group.
A legal system is the set of rules – call them “laws” – for
figuring out how this group, or “public,” will deploy whatever
coercion it can muster. So we see that a legal system is an
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attribute of just about any collective you can think of: a nation
state, a corporation, a fraternity, or your local PTA. They all
have legal systems, and, guess what, all of these systems have
the same, basic structure. Let’s turn to what that foundational
structure is.
Classifying the Laws
One of the very first things any “public” must decide is how
its laws should be made and enforced. And the most basic
element of each of those decisions is who should do so. You
see, the business of law is the creation and transmission of
information. For example, a legislature may draft a law, pass
it, transmit it to the chief executive, who signs it. Then, when
a case arises, a court reads that law, interprets it, and creates
information in the form of a judgment, which is then the basis
for action by others. So a legal system can be conceived as a
set of rules to manage the creation and passing of messages
among various groups within a public. (If you’re a computer
programmer and are starting to think this sounds like objectoriented programming, yes, the connections are deep, because
both endeavors are code-based efforts to manage complex
systems.)
To proceed further, we need a convenient term to describe
subgroups within the public that will be making and passing
on legal information. I’ll call these groups institutions. The
Congress is an institution, with many sub-institutions. A
corporation is an institution. They’re all over. But to
understand the basic structure of legal systems – and to
construct a simple atlas of the laws – we only need to talk
about two fundamental types of institutions: public and private.
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Public institutions, like legislatures, presidents or city
councils, are established by the collective to work on behalf of
the collective. Private institutions, like a corporation, a single
individual, or contracting parties, are the creations of private
individuals meant to serve the interests of those individuals,
even if those interests are altruistic or publicly minded.
Let’s match these two kinds of institutions, public and
private, with two basic steps in applying law: making and
enforcement. Law can be made by either (a) private
institutions or (b) public institutions. Private institutions
make contracts, wills, and gifts, for example. Public
institutions, like legislatures, administrative agencies, and
courts, make statutes, regulations, and common law rules.
Next, law can also be enforced by (a) private institutions or
(b) public institutions. By “enforced,” here, I mean control
over whether a cause of action is brought. Can you, a private
citizen, go to court and sue, privately prosecuting, or does the
decision whether to enforce a law and prosecute rest with a
public official, a public prosecutor? Private citizens often sue
to enforce contracts or for compensation for injuries arising
from the violation of some common-law or statutory duty, like
employment discrimination or negligent injury.
Arranging these possibilities in a chart, we can see that
familiar legal fields, the ones you’d study in your first year of
law school, emerge as categories from our “who makes and
who enforces” questions.
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These are the basic legal areas: Contract (privately made,
privately prosecuted), Tort (publicly made, privately
prosecuted), Parens Patriae (privately made, publicly
prosecuted - and almost, but not quite, an empty set), and
Criminal Law (publicly made, publicly prosecuted). Beware,
these are my labels. Gifts are part of Contract Law in my
atlas, and civil rights statutes giving individuals a right to sue
violators are a part of Tort Law. Other academics and
practitioners might not use these same labels, but our goal is
understanding legal systems in general. Once you know that,
then learning the particulars of any given system is just
picking up jargon.
So why is this a useful map? For one, it helps students of
law understand why they take Contract, Tort, and Criminal
Law as foundational, first-year courses. In doing so, you’re
functionally covering the whole legal system. For us, it will
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help to understand, in broad outline, why laws come from the
institutions they do and what the limits on such laws should
be. Put simply, the constraints on a contract, statute, or other
type of law almost always come back to the characteristics of
the institutions that made it. Therefore, whether you’re trying
to argue that a law, contract, or regulation is valid, is invalid,
should be interpreted in a particular way, or anything else, the
right kinds of arguments will be found in thinking hard about
the characteristics of the law’s drafter.
A Functional Atlas
The above is a classification of the laws of a legal system. But
legal systems have rules, sometimes called secondary rules,
that specify how a law must be made, how far it can go, how
it should be interpreted, and how it should be enforced.
Constitutional Law is the set of rules governing which
institutions can make which kinds of laws (so-called
structural rules, like voting rules, age requirements, and the
like) and what the permissible contents of laws are (which
you can perhaps lump together as “rights,” such as that the
law may not abridge the freedom of speech). Similarly, we can
call the rules governing who can bring and how they can
bring actions to enforce law Procedure. Here's the full map of
arbitrary legal systems:
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To re-emphasize: Constitutional Law is the set of secondary
laws governing the making of laws. Procedure is the set of
secondary laws governing the prosecution of law violations.
There is a public and private Constitutional Law and a public
and private Procedure. One of the goals of my academic work
has been to exploit this symmetry to show how these areas of
law nicely mirror one another, with differences owing
primarily to the generic difference between public and private
institutions. For example, the private Constitutional Law of
Contracts, or what all lawyers just call “contract law,”
comprises making law according to doctrines of offer and
acceptance and a body of of doctrine associated with
“unconscionability” that can be used to invalidate unfair
contracts. The public Constitutional Law often has more rulelike procedures for law enactment (such as passage of the
same statutory text in the House and Senate) but also has a
body of doctrine, here associated with specific rights and “due
process” more generally, to invalidate statutes.
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The key advantage to learning law in these terms is that we
can develop intuitions and arguments about what the law
should be based on the qualities of the institution at hand. For
example, individuals typically act in their own self-interest. If
we’re going to allow them to make a law that binds others, we
should probably only do so if all those others consent. And,
indeed, the basic structural provision of what I call the
Constitutional Law of Contracts is consent: that a privately
made law may only come from a unanimous private group
containing all those who would be bound. Public agents are
expected, in contrast, to act in the public interest. And our
secondary rules governing the public making of law are tuned
to trying to ensure good agency (by looking to see that proper
and usually detailed procedures were followed and
scrutinizing more closely than we do with contracts the fit of a
law with our more basic norms - freedom of speech and
equality, e.g.).
Next Steps
Importantly, we now have in hand a map of the legal system,
Contract, Tort, Criminal Law, governed by Constitutional
Law and Procedure. We’re going to need to go over some
examples to see how the public or private identity of the
institution plays a primary role in the content of
Constitutional Law and Procedure. That will give us an
abstract understanding of legal systems, a set of expectations
about how laws are probably made and governed.
Then, we can begin to look at how our system, in particular,
is constituted. What are the public institutions? What kinds of
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legal information does each produce, and how does
information flow among institutions?
Once you know these things, you’ll be able to take a dispute
or an issue and know where to look and how to think about
what the law is and what the law should be. Should we leave
this issue to parties to contract over? Should we pass a law
that creates rights to sue? Should we create a criminal law?
What kinds of sanctions should there be? If you know what
the law should be, then, because the law very often is what
you think it should be, you’ll know where to find it and how
to argue about it.
Causes of action
Let’s get to some nuts and bolts. How do legal actions work?
Every suit, no matter the area, has the same form. There are
discrete, but not air-tight, steps to convincing a court that the
defendant should lose – meaning, be coerced to pay money or
otherwise do something he or she wishes not to do. Here they
are: Duty, Breach, Causation, Damages, Defenses. Whether
it’s Contract, Tort, or Criminal Law, liability is established by
showing that there existed a duty, established by a law, that
the defendant breached that duty thereby causing harm to the
plaintiff, and that there are no relevant defenses to the breach.
If you know this legal workflow and you understand the
institutional differences between the areas of law, you’ll have
an easy time learning how the steps are a little different in
each area, and you’ll be able to move between areas with
relative ease. That’s the power of abstraction and why it’s
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worth the effort. Rather than learn a large catalog of skills
and procedures for accident law and a completely separate set
for lease agreements, we learn the general structure for all
lawsuits and how the institutional definition of an area might
affect how the general principles are made into specific
requirements. If we also know how to formulate legal
arguments about these steps, we’re off to the races.
Duty
The very first question we must address is what the duty, if
any, of the defendant was. Duties are what we might casually
think of as “the law,” the things you must do or not do. Duties
can be created in statutes by legislatures or administrative
bodies (think speed limits and nearly all criminal laws), by
courts refining the “common law,” or by private individuals in
contracts. Each institution will have different rules governing
how it can make duties and what kinds of duties it is
permitted to create.
For contracts, we examine whether the group of private
entities that will be bound by the terms of the contract
consented, usually by looking to see whether someone made
an offer of terms that the others accepted. If so, the contract
operates very much like a statute, specifying that one of the
parties is under a duty, say, to deliver a car and that the other
is under a duty to remit payment. There really isn’t much
difference between this kind of duty, to deliver a car under a
contract, and a duty to obey a speed limit under a public
statute or regulation. Both are “laws” that courts will back up
with coercion, though possibly using different remedies.
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Courts explicitly create duties in certain areas not governed
by legislation, and they do so by deciding cases. Historically,
Tort, private lawsuits to recover for violations of publicly
made law, has been composed primarily of judge-made duties.
Suits for injuries sustained in various types of accidents, for
example, are the bulk of what first-year students study in tort
classes, and these are often governed by the body of prior
cases courts have decided. Today, numerous legislatively
enacted statutes also provide for and govern private lawsuits.
For example, the Civil Rights Act, among other things,
creates duties on public accommodations owners and
employers not to discriminate against customers and
employees on account of race, and it gives private individuals
rights to sue if these duties are violated.
(Also note that many duties prohibit conduct only if
accompanied by a particular mental state, or mens rea in the
dead language lawyers sometimes use. So, I've only violated
the duty contained in some murder statutes if I purposefully or
knowingly kill another human being.)
No matter the source, the question is what conduct the law
requires or prohibits. That is duty.
Breach
Just because the law imposed a duty on the defendant does
not mean the defendant violated the law by breaching that
duty. The question, here, is whether the facts show that
defendant did something or failed to do something the law
required. So if the law imposed on me an obligation when
driving to operate my car with the care of an ordinary,
competent driver under all the circumstances, whether I
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breached the duty would turn on an analysis of the facts and
an interpretation of the duty. Perhaps the court will compare
my facts with those in other driving cases to see whether
courts have further specified what kinds of driving fall short
of the general duty of care.
Same thing under Contract and Criminal Law. Regardless
of the source, we look at the duty the law imposes and then at
the facts of our case to see whether that duty was breached –
by not performing a contract or by committing a crime, for
example.
As a matter of practice, the act of comparing a contractual,
statutory, or judge-made duty with the facts will sometimes be
impossible. The case in front of you may not clearly fall on
one side of the violation/no-violation line, forcing you to look
more carefully at what the duty is and perhaps sending you
back to step one to restate, refine, or amend the duty. This can
involve making new law either through interpretation –
deciding what a written formulation of a duty “really” means
– or through judicial amendment of rules from its own prior
decisions.
Consider this example. Suppose you have a case involving
an accountant who did a bad job that resulted in your client’s
losing a lot of money. Suppose further that your client never
hired the accountant but had nonetheless relied on the
accountant’s work for someone else. First, note that we are
wondering whether there is some publicly created law that
would allow your client to sue to recover damages. The
question, then, is whether there is a tort duty to your client
that the accountant violated. (Why is this not a contract
case?)
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Maybe some states have decided, on similar facts to the
ones in your case, that the duty of accountants to perform
analyses like “reasonably prudent accountants,” a judge-made
tort duty, does not extend to plaintiffs who lack a contractual
relationship with the accountant. In these states, although the
customer of an accountant is owed a duty to perform
accounting work like a reasonably prudent accountant would,
that duty is not owed to non-customers. So if you got hold of
an analysis written by someone else’s accountant, used it, and
lost a lot of money, you’d have no legal remedy. That
accountant owed you no duty.
But other states have taken a different approach. These
have allowed even non-customers to sue when the accountant
should have foreseen those people would rely on his or her
work. Notice that this duty might extend to your client if you
can show facts establishing that the accountant should have
foreseen your client would rely on his or her work.
If our state has not decided the question, we will have to
argue concerning what the duty of accountants should be. We
are forced to consider more carefully the ambit of the duty
(violation only if you also have a contract with the accountant
or any foreseeable reliers – or something else?) before we can
apply the facts to determine if there is a breach.
Another example: In a contract for the sale of goods,
suppose I receive the goods but pay you less than you think
you are owed. Suppose also that the contract contemplated
payment but failed to include an explicit price term. Did I
violate (breach) a duty established by the contract? We need
to go back to the first step and figure out what, specifically, I
was obligated to pay. What was my legal duty? Under the law
of most states (http://www.law.cornell.edu/ucc/2/2-305.html),
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I'd be on the hook for a reasonable price at the time of
delivery. Whether I breached that implicit obligation depends
on what that duty is. So we’ll litigate it, offering evidence of
what was reasonable to establish what our private law
required me to pay. And then we will determine whether I
breached that duty by failing to pay that amount.
Causation
Even if I “break the law,” I’m often not liable, that is not
subject to fines, damages, injunctions, or imprisonment,
unless my actions caused a result specified by the law. Even if
I breached a duty to operate a machine with ordinary care, I
do not have to pay you any money unless my failure of care
caused you to be injured.
This analysis is sometimes tricky, because in the law we use
the word “causation” to serve both logical and policy ends.
Two concepts, a single word. Logically, causation is
straightforward to understand, if not always to apply. If I am
under a duty to operate a car non-negligently and I breach
that duty, I am only responsible to someone injured in a crash
if I caused his or her injuries. At the very least, my breaching
the duty the law established must be a but-for cause of the
injury. That is, but for my breach, the injury would not have
occurred.
Sometimes this but-for causation is called “actual causation”
or “cause in fact.” The problem is that this concept is greedy:
it sweeps in lots of conduct that we probably don’t think of as
causal. For example, if I injure someone in an auto accident,
and but for my negligence the person would not have been
injured, it’s also the case that my parents are a “but-for” cause
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of the injuries. After all, no parents, no me. No me, no breach
by me. Of course, my parents violated no duty, so the fact that
they were but-for causes of the injury does not mean they are
liable.
Still, what if my breach of a contractual obligation to
deliver certain goods to a shopkeep causes her to go shopping
for those goods and to be killed in a car accident on the way
to the store? Should her estate be able to recover damages for
her death from me? What if I negligently cause an automobile
accident that causes a minor injury to someone who is held up
by the accident and, because of the hold up, misses work and
is fired? Am I liable for the lost wages? In both cases, my
breach of a legal duty was a but-for cause of the unexpected
injuries.
The law’s solution to these sorts of problems is to require
something more than but-for causation. We will insist that the
defendant’s conduct was a proximate cause, or substantial
factor, in producing the injury. The language and exact
analysis vary, but the idea is to restrict liability to violations
that are connected in a fairly direct way to the injury. This is a
matter of policy rather than logic.
In both tort and contract law, the ability of the breaching
party reasonably to foresee the injury is the key. They differ,
though, in the kind and timing of the thing foreseen.
Traditionally in tort, if you should have foreseen, at the time
of the breach, damage of the kind that occurred, you will be
liable for the damages caused even if you couldn’t foresee
their magnitude. In contract law, the famous case of Hadley v.
Baxendale (http://www.bailii.org/ew/cases/EWHC/Exch/
1854/J70.html) decided that a defendant who breached a
contract to deliver a crankshaft was not responsible for lost
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profits that were not foreseen (contemplated) at the time of
the contract and were not otherwise a “natural consequence”
of the breach.
The important thing to note for the moment is that,
whatever the limits on causation, they are policy
determinations that allocate responsibility for avoiding losses
in ways thought best to serve the public interest. Because it’s
a policy issue, the extent to which we permit plaintiffs to
travel down the but-for path could also be understood as a
definition of the scope of the duty the law has created.
Consider, for example, the accountant’s liability to third
parties. One could characterize the question as going to
whether the accountant was a “direct enough” cause of their
injuries or to whether we desire, as a matter of policy, to
create a duty on an accountant enforceable by foreseeable
reliers not in contract with him or her. The practical
consequence of this distinction, between duty and proximate
cause is that the definition of the duty is in the hands of the
judge for such torts. But the question of causation is given to
the jury. These distinct ways of seeing the same problem were
the subject of a famous torts case, Palsgraf v. Long Island
Railroad Co. (http://en.wikipedia.org/wiki/
Palsgraf_v._Long_Island_Railroad_Co.).
Also note that causation can sometimes be difficult to prove.
Summers v. Tice (http://scholar.google.com/scholar_case?
case=7084631840002460993) is a tort case in which the
plaintiff was shot in the face by at least one of two negligent
hunters but where it was unclear which shooter caused which
injury. The court shifted the burden from the plaintiff to each
hunter to prove that he was not the cause, lest the plaintiff be
stuck unable to prove to a greater than 50% probability that a
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particular one of them had caused his injury. As a matter of
policy, the court did not want someone who was clearly
harmed by the negligent actions of multiple parties to be
denied a remedy simply because the victim was unable to
prove which of the two actually caused the victim's harm. By
shifting the burden of proving or disproving causation to the
defendants, the court was making a policy decision that favors
a plaintiff where multiple defendants have acted negligently in
such a way that at least one of those defendants harmed the
plaintiff.
Damages and Defenses
The final elements of a lawsuit are showing that there were
damages, calculating them, and also examining any defenses
the law may provide. Your intuition will get you a long way
here. But there are some subtleties, some of which we will
discuss in class.
Defenses are generally policy-based limitations on a
positively stated duty. They, like other aspects of the lawsuit,
could easily be collapsed into the definition of the duty. For
example, while it might generally be a violation of a publicly
created duty to go onto another’s land without permission, I
will not be liable for doing so if my entry was to save a life.
This is the necessity defense to the trespass tort. If my
trespass on your land was “necessary” within the meaning of
that defense, you will not be able to sue me successfully for
trespass. One could just as easily say that a trespass is defined
so as not to included necessary entries.
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Rules and Standards
One last general topic about the business of law. And then
we’ll dive into the substantive reasons courts and lawmakers
might cite when making or resolving law.
How should potential legal violations be measured? When
we say something is illegal, how should we specify what that
something is?
Consider one way of doing so with which you are
doubtlessly familiar. The speed limit on a public highway is
almost always stated in terms of a particular, fixed speed that
may not be exceeded. This is a quintessential legal rule. It
specifies in advance and with precision the conduct that will
subject you to fines or other punishment. You can feel safe
from governmental sanction driving your car at fifty miles per
hour on a road on which the speed limit has been declared by
signage to be fifty-five miles per hour. The reason you feel this
measure of safety is because fifty is less than fifty-five, not
because you’ve made a prediction that courts would likely
believe your speed to be reasonable or safe. It’s the same as
confidently moving a piece on a board when playing a game.
If you’re familiar with the rules, you will know in advance
whether you can move the piece in that way.
Contrast this with a legal standard. A standard sets out a way
to determine legality that depends on judgments, not mere
calculations. Perhaps the most famous legal standard is found
in the law of torts. In general, you can be liable in tort, and
therefore required to pay damages, to someone you injure
through your own negligence. What is negligence? It is
conduct that exhibits a level of care less than that a
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reasonably prudent person would have taken under the
circumstances. Basically, we’re asking whether you acted
unreasonably in a situation. What’s unreasonable? There’s the
rub: we have to take a lot of factors into account and make a
judgment. Would a reasonable person under the
circumstances have slammed on the brakes or used one
surgical method instead of another or put up a sign saying the
floor was slippery or locked a gate to keep kids away from an
unmonitored swimming pool, etc.?
One type of standard in law is the multi-factor balancing
test, in which a court is asked, or asks itself, to consider
several different interests or factors and weigh them. Justice
Scalia was a harsh critic of this sort of approach to law,
preferring rules whenever possible (but not in all cases).
Consider this passage from a dissent of his in Bendix Autolite
Corp. v. Midwesco Enterprises, 486 U.S. 888 (1988):
Having evaluated the interests on both sides as roughly
as this, the Court then proceeds to judge which is more
important. This process is ordinarily called “balancing,”
but the scale analogy is not really appropriate, since the
interests on both sides are incommensurate. It is more
like judging whether a particular line is longer than a
particular rock is heavy. All I am really persuaded of by
the Court's opinion is that the burdens the Court labels
“significant” are more determinative of its decision than
the benefits it labels “important.” Were it not for the
brief implication that there is here a discrimination
unjustified by any state interest, I suggest an opinion
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could as persuasively have been written coming out the
opposite way.
Scalia’s critique here, and as he elaborated elsewhere, is more
complex than it first appears. His attack on balancing
interests, where a judge “weighs” some considerations against
others, is against a particular kind of standard. Here, he
attacks balancing tests that ask courts to weigh one kind of
interest against another, such as an interest in efficient
execution of administrative tasks against the interest in equal
treatment of government employees. How is one to know
whether a certain amount of inequality (and there must
always be some) is “worth” the gains in efficient operations
that would be lost if the agency had to put in place rules and
monitoring to prevent it? A trade-off that seems reasonable to
one intelligent person deliberating in good faith might seem
unreasonable to another. And how can anyone say which of
them is right?
But the critique goes further. Any time we ask courts to
apply standards, we ask them exercise discretion – to engage
in judgments about which reasonable people might disagree.
Standards ask whether something is too much, too little, too
injurious to some other interests, or the like - but with no
fixed measure of “too.” In such cases, law is less predictable.
People are unable to plan their actions in anticipation of how
the law might apply to them. And courts become
policymakers, rather than impartial adjudicators.
Given that rules enable prediction and compliance, why
would we ever prefer to use standards to define illegal
conduct? Getting law right, whatever else it may mean,
depends on our ability to craft legal definitions that don’t
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commit us to intolerable levels of injustice, danger, or
inefficiency in the future. As famous legal philosopher H.L.A.
Hart put it, we are people, not gods. And we are limited both
in “fact” and in “aim.” That is, at the time we are making law,
we are limited in what we know about the world and how
events will unfold, and we are limited in knowing what it is
we will want in the future. How can we responsibly lay down
a mechanical rule to resolve some dispute in the distant future
when we may be ignorant of crucial considerations and of
what will even be important to us then. Sure we could make a
rule that would resolve the case with relative certainty
(flipping a coin would do the trick), but, as Hart wrote, “[w]e
shall thus indeed succeed in settling in advance, but also in
the dark, issues which can only reasonably be settled when
they arise and are identified.”
Consider the speed limit again. Should I be fined if I exceed
the speed limit while rushing a dying friend to the hospital?
What if I’m being pursued by aggressors? What if my car
malfunctions or if I’m passing a vehicle driving at the speed
limit but that presents a danger to traffic around it?
We could attempt to define rule-like exceptions to cover
these situations, something like: “It shall be illegal to exceed
the posted speed limit except in the following situations: (a)
when the driver or passenger is suffering the following
medical emergencies: …., (b) when all other vehicles within
1/4 mile are traveling at least five miles per hour faster, [etc.]”
This formulation of a law meant to make speeding illegal
except when needed is, to put it mildly, a bit clunky. To craft
the law well, we will either need to imagine and describe with
specificity the category of speeding we’d like to permit or
count on judges to bend the law in appropriate cases.
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Perhaps it would be better to state a general rule and
indicate there are exceptions that meet a standard. “It shall be
illegal to exceed the posted speed limit except (a) when
required preserve health or life, (b) when slower travel would
be hazardous to the driver or surrounding drivers, or (c)
when otherwise required to promote public safety.” The cost
of such a statute is obvious. I may not be able to predict with
certainty whether a police officer and ultimately a judge will
determine my situation to fall within an exception.
Additionally, there will be more litigation than there would be
in a system of absolute rules. However, there are clear
benefits. We will be able to avoid punishing people in
situations we cannot now imagine but where speeding is
clearly warranted. Knowing the exception exists could cause
people to hesitate less to speed in such situations. A judge or
jury can interpret the provision to do more exact justice in a
given case.
What is more, perhaps our “rule-like” approach would wind
up being the standard-like approach in practice. Everyone
knows that they will not be ticketed for traveling sixty miles
per hour on a road limited to travel at fifty-five miles per hour.
Police officers generally give tickets for speeding some
”significant” margin over the posted limit. How much could
depend on conditions, whether the officer has a quota to meet,
whether there are unusual safety concerns in the area (like a
school speed zone), and the like. In practice, the speed at
which you will be ticketed is a matter of judgment and can be
predicted only generally. And if you take your ticket to court
(defending the prosecution for speeding), whether a judge
reduces the fine or otherwise shows leniency is not an event
you could calculate with any exactness in advance.
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Real legal systems tend to specify some laws in more rulelike fashion and others in more standards-like fashion. For
example, in soccer, the international body FIFA defines a foul
in such a way that it requires careless or reckless conduct or
conduct imparting excessive force. The same body defines a
goal as occurring when the entire ball reaches beyond the
entire goal line. The former is quite standard-like, and the
latter is a rule. But the laws of the game include both. Why?
There are a few general observations we can make about
rules and standards. Rules:
– Retain power in rule promulgators;
– Potentially reduce decision costs;
– Reduce the quantity of litigation because the resolution
of disputes is more predictable;
– Provide wider safe harbors (zones of conduct that
clearly do not run afoul of the rule) because there is
less uncertainty about borderline cases, thus enabling
more productive conduct.
Standards:
– Grant more power to adjudicators;
– Enable decisionmakers to reach more just or efficient
results in given cases than might application of a
mechanical rule;
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– Promote transparent weighing and considerations of
reasonableness that might otherwise be used secretly
by rule enforcers;
– Promote planning and conflict avoidance if the
standard more accurately describes the conditions of
enforcement than the “official rule” would.
That is enough for now for us to think about how law is
specified and the trade-offs of describing conduct with
particularity or leaving the contours of legality to
decisionmakers confronted with a real case. But we will take
up later in the course yet another type of legal authority: the
legal principle. Rules and standards differ in how they specify
what is legal or illegal, but both are all or nothing. That is, if a
rule or standard is met, the legality of the conduct is
determined. Whether speeding is determined by a rule or
standard, when the criteria are met, we know whether the
speeding was illegal. In contrast, a principle is a consideration
in adjudicating or lawmaking that has weight but is not
determinative.
If we have a rule or standard establishing that no person
shall be a judge in a case in which the judge has any
appearance of partiality or conceivable interest, then we
would probably insist the judge recuse from a case in which
the judge’s social acquaintance is being sued for a breach of
contract. If, though, we determine from the common law that
one principle is that judges should not serve on cases in which
they might be perceived to have an interest, then we would
say that it weighs in favor of recusal that our judge is
acquainted with the defendant. But there might be a
competing principle that judges should not recuse when
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public trust in the judiciary would not be threatened, perhaps
because we want to discourage parties from “shopping” for
judges by digging up only tenuous potential conflicts. That
principle might weigh in favor of the judge’s service if the
judge has many acquaintances. We would have to examine
these principles together, and one would yield in our case. We
will return to the idea of principles when we study courts in
greater depth.
Lee v. Weisman, 505 U.S. 577
(1992)
A few words before we get to the Court’s decision in this case:
Lee marked an opportunity for the Supreme Court, after
several Republican appointees during the Reagan and Bush
years, to reconsider its holding that the Establishment Clause
generally prohibits official prayer in public schools. As you
will read, a middle school student and her family sued to stop
a prayer at her public middle school graduation ceremony,
arguing that it violated the constitutional ban on
governmental “establishment[s] of religion.”
The First Amendment to the Constitution reads:
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; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.
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The particular portion of the amendment that interests us
here is: “Congress shall make no law respecting an
establishment of religion.”
First things first: A public middle school is not the United
States Congress. Does this provision of the Constitution even
apply to public schools, which are part of state governments
and are certainly not legislatures? The answer is yes, that all
the provisions of the First Amendment apply to all state
actors, whether legislative, executive, or judicial and whether
federal or state.
That the amendment applies to the states is uncontroversial.
Even though people still disagree as to the exact mechanism,
the Fourteenth Amendment’s prohibition of any state’s denial
of Due Process rights has been held to include a prohibition
of violations of the substance of the First Amendment. This
critical amendment to the Constitution was one of several
ratified after the Civil War that were intended to outlaw
slavery, to prohibit states from treating citizens unequally, and
to create a role for the federal government to guard the
political and civil rights of its citizens.
But does this mean that the amendment also applies to
executive actors? In many ways, the fact that the First
Amendment prohibits the President and governors from
cracking down on speech or religions they dislike seems an
obvious fact of our legal life. Indeed, arguing to a court that a
governor can violate the First Amendment because he or she
is not “Congress” or a legislature would get you nowhere. The
law clearly bars any state actor from violating the
amendment’s terms. A number of scholars, though, have
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questioned this assumption.1 For the foreseeable future,
though, this debate will be confined to academia.
Given these legal facts, we can now ask how the
constitutional rule, that the middle school is prohibited from
undertaking any action that would establish a religion, would
apply to this case. The Court’s job here is to make an
interpretation of the Constitution, to derive from it a rule or
standard that can be applied to resolve this case more
transparently. Sure, the Court could just say, “We think an
official prayer in a public school violates the Establishment
Clause.” That would indeed resolve the case, but it would not
explain the Court’s ruling or provide guidance for future cases.
The very reason the Court grants certiorari is to provide such
guidance, not, generally, to correct an error in the outcome of
a single case. Indeed, this case, like nearly all Supreme Court
cases, is primarily about the proper law, not the proper result.
As you will read, the debate among members of the Court
concerns how to translate the Establishment Clause into an
administrable rule or standard (how to define the target, to
pick up again our archer analogy). In fact, it’s even one step
beyond that. Starting with a standard the Court adopted in a
prior case, Lemon v. Kurtzman, how should that test be
understood in the school prayer context. Why do you think
they come to different answers to this question? Are multiple
and conflicting answers to constitutional questions possible
1
See, e.g., Daniel Hemel, Executive Action and the First Amendment's
First Word, 40 Pepp. L. Rev. 601 (2013) (http://
digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?
article=2130&context=plr).
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without one side’s being wrong? What does it mean to be
wrong here?
After you read the case, see whether you can apply what we
learned about rules and standards. Can you contrast the
standard that Justice Kennedy derives and applies with the
rule the dissent favors, explaining why the first is a standard
and the second a rule? Ok, let’s read the decision.
Justice Kennedy delivered the opinion of the Court.
School principals in the public school system of the city of
Providence, Rhode Island, are permitted to invite members of
the clergy to offer invocation and benediction prayers as part
of the formal graduation ceremonies for middle schools and
for high schools. The question before us is whether including
clerical members who offer prayers as part of the official
school graduation ceremony is consistent with the Religion
Clauses of the First Amendment, provisions the Fourteenth
Amendment makes applicable with full force to the States and
their school districts.
I
A
Deborah Weisman graduated from Nathan Bishop Middle
School, a public school in Providence, at a formal ceremony
in June 1989. She was about 14 years old. For many years it
has been the policy of the Providence School Committee and
the Superintendent of Schools to permit principals to invite
members of the clergy to give invocations and benedictions at
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middle school and high school graduations. Many, but not all,
of the principals elected to include prayers as part of the
graduation ceremonies. Acting for himself and his daughter,
Deborah’s father, Daniel Weisman, objected to any prayers at
Deborah’s middle school graduation, but to no avail. The
school principal, petitioner Robert E. Lee, invited a rabbi to
deliver prayers at the graduation exercises for Deborah’s
class. Rabbi Leslie Gutterman, of the Temple Beth El in
Providence, accepted.
It has been the custom of Providence school officials to
provide invited clergy with a pamphlet entitled "Guidelines
for Civic Occasions," prepared by the National Conference of
Christians and Jews. The Guidelines recommend that public
prayers at nonsectarian civic ceremonies be composed with
"inclusiveness and sensitivity," though they acknowledge that
"[p]rayer of any kind may be inappropriate on some civic
occasions.” The principal gave Rabbi Gutterman the
pamphlet before the graduation and advised him the
invocation and benediction should be nonsectarian.
Rabbi Gutterman’s prayers were as follows:
INVOCATION
God of the Free, Hope of the Brave:
For the legacy of America where diversity is celebrated
and the rights of minorities are protected, we thank You.
May these young men and women grow up to enrich it.
For the liberty of America, we thank You. May these
new graduates grow up to guard it.
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For the political process of America in which all its
citizens may participate, for its court system where all
may seek justice we thank You. May those we honor this
morning always turn to it in trust.
For the destiny of America we thank You. May the
graduates of Nathan Bishop Middle School so live that
they might help to share it.
May our aspirations for our country and for these
young people, who are our hope for the future, be richly
fulfilled.
AMEN
BENEDICTION
O God, we are grateful to You for having endowed us
with the capacity for learning which we have celebrated
on this joyous commencement.
Happy families give thanks for seeing their children
achieve an important milestone. Send Your blessings
upon the teachers and administrators who helped prepare
them.
The graduates now need strength and guidance for the
future, help them to understand that we are not complete
with academic knowledge alone. We must each strive to
fulfill what You require of us all: To do justly, to love
mercy, to walk humbly.
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We give thanks to You, Lord, for keeping us alive,
sustaining us and allowing us to reach this special,
happy occasion.
AMEN
. . . . The school board (and the United States, which supports
it as amicus curiae ) argued that these short prayers and
others like them at graduation exercises are of profound
meaning to many students and parents throughout this
country who consider that due respect and acknowledgment
for divine guidance and for the deepest spiritual aspirations of
our people ought to be expressed at an event as important in
life as a graduation. We assume this to be so in addressing the
difficult case now before us, for the significance of the prayers
lies also at the heart of Daniel and Deborah Weisman’s case.
B
. . . . The District Court held that petitioners’ practice of
including invocations and benedictions in public school
graduations violated the Establishment Clause of the First
Amendment, and it enjoined petitioners from continuing the
practice. The court applied the three-part Establishment
Clause test set forth in Lemon v. Kurtzman. Under that test as
described in our past cases, to satisfy the Establishment
Clause a governmental practice must (1) reflect a clearly
secular purpose; (2) have a primary effect that neither
advances nor inhibits religion; and (3) avoid excessive
government entanglement with religion. The District Court
held that petitioners’ actions violated the second part of the
test, and so did not address either the first or the third. The
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court decided, based on its reading of our precedents, that the
effects test of Lemon is violated whenever government action
“creates an identification of the state with a religion, or with
religion in general,” or when “the effect of the governmental
action is to endorse one religion over another, or to endorse
religion in general.” The court determined that the practice of
including invocations and benedictions, even so-called
nonsectarian ones, in public school graduations creates an
identification of governmental power with religious practice,
endorses religion, and violates the Establishment Clause. . . . .
II
These dominant facts mark and control the confines of our
decision: State officials direct the performance of a formal
religious exercise at promotional and graduation ceremonies
for secondary schools. Even for those students who object to
the religious exercise, their attendance and participation in
the state-sponsored religious activity are in a fair and real
sense obligatory, though the school district does not require
attendance as a condition for receipt of the diploma. . . . .
The principle that government may accommodate the free
exercise of religion does not supersede the fundamental
limitations imposed by the Establishment Clause. It is beyond
dispute that, at a minimum, the Constitution guarantees that
government may not coerce anyone to support or participate
in religion or its exercise, or otherwise act in a way which
“establishes a [state] religion or religious faith, or tends to do
so.” The State’s involvement in the school prayers challenged
today violates these central principles.
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That involvement is as troubling as it is undenied. A school
official, the principal, decided that an invocation and a
benediction should be given; this is a choice attributable to the
State, and from a constitutional perspective it is as if a state
statute decreed that the prayers must occur. The principal
chose the religious participant, here a rabbi, and that choice is
also attributable to the State. The reason for the choice of a
rabbi is not disclosed by the record, but the potential for
divisiveness over the choice of a particular member of the
clergy to conduct the ceremony is apparent.
Divisiveness, of course, can attend any state decision
respecting religions, and neither its existence nor its potential
necessarily invalidates the State’s attempts to accommodate
religion in all cases. The potential for divisiveness is of
particular relevance here though, because it centers around an
overt religious exercise in a secondary school environment
where, as we discuss below, subtle coercive pressures exist
and where the student had no real alternative which would
have allowed her to avoid the fact or appearance of
participation.
The State’s role did not end with the decision to include a
prayer and with the choice of a clergyman. Principal Lee
provided Rabbi Gutterman with a copy of the “Guidelines for
Civic Occasions,” and advised him that his prayers should be
nonsectarian. Through these means the principal directed and
controlled the content of the prayers. Even if the only
sanction for ignoring the instructions were that the rabbi
would not be invited back, we think no religious
representative who valued his or her continued reputation
and effectiveness in the community would incur the State’s
displeasure in this regard. It is a cornerstone principle of our
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Establishment Clause jurisprudence that “it is no part of the
business of government to compose official prayers for any
group of the American people to recite as a part of a religious
program carried on by government,” and that is what the
school officials attempted to do.
Petitioners argue, and we find nothing in the case to refute
it, that the directions for the content of the prayers were a
good-faith attempt by the school to ensure that the
sectarianism which is so often the flashpoint for religious
animosity be removed from the graduation ceremony. The
concern is understandable, as a prayer which uses ideas or
images identified with a particular religion may foster a
different sort of sectarian rivalry than an invocation or
benediction in terms more neutral. The school’s explanation,
however, does not resolve the dilemma caused by its
participation. The question is not the good faith of the school
in attempting to make the prayer acceptable to most persons,
but the legitimacy of its undertaking that enterprise at all
when the object is to produce a prayer to be used in a formal
religious exercise which students, for all practical purposes,
are obliged to attend.
We are asked to recognize the existence of a practice of
nonsectarian prayer, prayer within the embrace of what is
known as the Judeo-Christian tradition, prayer which is more
acceptable than one which, for example, makes explicit
references to the God of Israel, or to Jesus Christ, or to a
patron saint. There may be some support, as an empirical
observation, to the statement of the Court of Appeals for the
Sixth Circuit . . . that there has emerged in this country a civic
religion, one which is tolerated when sectarian exercises are
not. If common ground can be defined which permits once
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conflicting faiths to express the shared conviction that there is
an ethic and a morality which transcend human invention, the
sense of community and purpose sought by all decent
societies might be advanced. But though the First
Amendment does not allow the government to stifle prayers
which aspire to these ends, neither does it permit the
government to undertake that task for itself.
The First Amendment’s Religion Clauses mean that
religious beliefs and religious expression are too precious to
be either proscribed or prescribed by the State. The design of
the Constitution is that preservation and transmission of
religious beliefs and worship is a responsibility and a choice
committed to the private sphere, which itself is promised
freedom to pursue that mission. It must not be forgotten then,
that while concern must be given to define the protection
granted to an objector or a dissenting nonbeliever, these same
Clauses exist to protect religion from government
interference. James Madison, the principal author of the Bill
of Rights, did not rest his opposition to a religious
establishment on the sole ground of its effect on the minority.
A principal ground for his view was: “[E]xperience
witnesseth that ecclesiastical establishments, instead of
maintaining the purity and efficacy of Religion, have had a
contrary operation.”
These concerns have particular application in the case of
school officials, whose effort to monitor prayer will be
perceived by the students as inducing a participation they
might otherwise reject. Though the efforts of the school
officials in this case to find common ground appear to have
been a good-faith attempt to recognize the common aspects of
religions and not the divisive ones, our precedents do not
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permit school officials to assist in composing prayers as an
incident to a formal exercise for their students. And these
same precedents caution us to measure the idea of a civic
religion against the central meaning of the Religion Clauses of
the First Amendment, which is that all creeds must be
tolerated and none favored. The suggestion that government
may establish an official or civic religion as a means of
avoiding the establishment of a religion with more specific
creeds strikes us as a contradiction that cannot be accepted.
The degree of school involvement here made it clear that
the graduation prayers bore the imprint of the State and thus
put school-age children who objected in an untenable
position. We turn our attention now to consider the position
of the students, both those who desired the prayer and she
who did not.
To endure the speech of false ideas or offensive content and
then to counter it is part of learning how to live in a pluralistic
society, a society which insists upon open discourse towards
the end of a tolerant citizenry. And tolerance presupposes
some mutuality of obligation. It is argued that our
constitutional vision of a free society requires confidence in
our own ability to accept or reject ideas of which we do not
approve, and that prayer at a high school graduation does
nothing more than offer a choice. By the time they are
seniors, high school students no doubt have been required to
attend classes and assemblies and to complete assignments
exposing them to ideas they find distasteful or immoral or
absurd or all of these. Against this background, students may
consider it an odd measure of justice to be subjected during
the course of their educations to ideas deemed offensive and
irreligious, but to be denied a brief, formal prayer ceremony
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that the school offers in return. This argument cannot prevail,
however. It overlooks a fundamental dynamic of the
Constitution.
The First Amendment protects speech and religion by quite
different mechanisms. Speech is protected by ensuring its full
expression even when the government participates, for the
very object of some of our most important speech is to
persuade the government to adopt an idea as its own. The
method for protecting freedom of worship and freedom of
conscience in religious matters is quite the reverse. In
religious debate or expression the government is not a prime
participant, for the Framers deemed religious establishment
antithetical to the freedom of all. The Free Exercise Clause
embraces a freedom of conscience and worship that has close
parallels in the speech provisions of the First Amendment, but
the Establishment Clause is a specific prohibition on forms of
state intervention in religious affairs with no precise
counterpart in the speech provisions. The explanation lies in
the lesson of history that was and is the inspiration for the
Establishment Clause, the lesson that in the hands of
government what might begin as a tolerant expression of
religious views may end in a policy to indoctrinate and coerce.
A state-created orthodoxy puts at grave risk that freedom of
belief and conscience which are the sole assurance that
religious faith is real, not imposed.
The lessons of the First Amendment are as urgent in the
modern world as in the 18th century when it was written.
One timeless lesson is that if citizens are subjected to statesponsored religious exercises, the State disavows its own duty
to guard and respect that sphere of inviolable conscience and
belief which is the mark of a free people. To compromise that
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principle today would be to deny our own tradition and forfeit
our standing to urge others to secure the protections of that
tradition for themselves.
As we have observed before, there are heightened concerns
with protecting freedom of conscience from subtle coercive
pressure in the elementary and secondary public schools. Our
decisions in Engel v. Vitale and School Dist. of Abington . . . .
recognize, among other things, that prayer exercises in public
schools carry a particular risk of indirect coercion. The
concern may not be limited to the context of schools, but it is
most pronounced there. What to most believers may seem
nothing more than a reasonable request that the nonbeliever
respect their religious practices, in a school context may
appear to the nonbeliever or dissenter to be an attempt to
employ the machinery of the State to enforce a religious
orthodoxy.
We need not look beyond the circumstances of this case to
see the phenomenon at work. The undeniable fact is that the
school district’s supervision and control of a high school
graduation ceremony places public pressure, as well as peer
pressure, on attending students to stand as a group or, at least,
maintain respectful silence during the invocation and
benediction. This pressure, though subtle and indirect, can be
as real as any overt compulsion. Of course, in our culture
standing or remaining silent can signify adherence to a view
or simple respect for the views of others. And no doubt some
persons who have no desire to join a prayer have little
objection to standing as a sign of respect for those who do.
But for the dissenter of high school age, who has a reasonable
perception that she is being forced by the State to pray in a
manner her conscience will not allow, the injury is no less
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real. There can be no doubt that for many, if not most, of the
students at the graduation, the act of standing or remaining
silent was an expression of participation in the rabbi’s prayer.
That was the very point of the religious exercise. It is of little
comfort to a dissenter, then, to be told that for her the act of
standing or remaining in silence signifies mere respect, rather
than participation. What matters is that, given our social
conventions, a reasonable dissenter in this milieu could
believe that the group exercise signified her own participation
or approval of it.
Finding no violation under these circumstances would place
objectors in the dilemma of participating, with all that implies,
or protesting. We do not address whether that choice is
acceptable if the affected citizens are mature adults, but we
think the State may not, consistent with the Establishment
Clause, place primary and secondary school children in this
position. Research in psychology supports the common
assumption that adolescents are often susceptible to pressure
from their peers towards conformity, and that the influence is
strongest in matters of social convention. To recognize that
the choice imposed by the State constitutes an unacceptable
constraint only acknowledges that the government may no
more use social pressure to enforce orthodoxy than it may use
more direct means.
The injury caused by the government’s action, and the
reason why Daniel and Deborah Weisman object to it, is that
the State, in a school setting, in effect required participation
in a religious exercise. It is, we concede, a brief exercise
during which the individual can concentrate on joining its
message, meditate on her own religion, or let her mind
wander. But the embarrassment and the intrusion of the
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religious exercise cannot be refuted by arguing that these
prayers, and similar ones to be said in the future, are of a de
minimis character. To do so would be an affront to the rabbi
who offered them and to all those for whom the prayers were
an essential and profound recognition of divine authority. And
for the same reason, we think that the intrusion is greater
than the two minutes or so of time consumed for prayers like
these. Assuming, as we must, that the prayers were offensive
to the student and the parent who now object, the intrusion
was both real and, in the context of a secondary school, a
violation of the objectors’ rights. That the intrusion was in the
course of promulgating religion that sought to be civic or
nonsectarian rather than pertaining to one sect does not
lessen the offense or isolation to the objectors. At best it
narrows their number, at worst increases their sense of
isolation and affront.
There was a stipulation in the District Court that
attendance at graduation and promotional ceremonies is
voluntary. Petitioners and the United States, as amicus, made
this a center point of the case, arguing that the option of not
attending the graduation excuses any inducement or coercion
in the ceremony itself. The argument lacks all persuasion.
Law reaches past formalism. And to say a teenage student has
a real choice not to attend her high school graduation is
formalistic in the extreme. True, Deborah could elect not to
attend commencement without renouncing her diploma; but
we shall not allow the case to turn on this point. Everyone
knows that in our society and in our culture high school
graduation is one of life’s most significant occasions. A school
rule which excuses attendance is beside the point. Attendance
may not be required by official decree, yet it is apparent that a
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student is not free to absent herself from the graduation
exercise in any real sense of the term "voluntary," for absence
would require forfeiture of those intangible benefits which
have motivated the student through youth and all her high
school years. Graduation is a time for family and those closest
to the student to celebrate success and express mutual wishes
of gratitude and respect, all to the end of impressing upon the
young person the role that it is his or her right and duty to
assume in the community and all of its diverse parts.
The importance of the event is the point the school district
and the United States rely upon to argue that a formal prayer
ought to be permitted, but it becomes one of the principal
reasons why their argument must fail. Their contention, one
of considerable force were it not for the constitutional
constraints applied to state action, is that the prayers are an
essential part of these ceremonies because for many persons
an occasion of this significance lacks meaning if there is no
recognition, however brief, that human achievements cannot
be understood apart from their spiritual essence. We think the
Government’s position that this interest suffices to force
students to choose between compliance or forfeiture
demonstrates fundamental inconsistency in its argumentation.
It fails to acknowledge that what for many of Deborah’s
classmates and their parents was a spiritual imperative was
for Daniel and Deborah Weisman religious conformance
compelled by the State. While in some societies the wishes of
the majority might prevail, the Establishment Clause of the
First Amendment is addressed to this contingency and rejects
the balance urged upon us. The Constitution forbids the State
to exact religious conformity from a student as the price of
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attending her own high school graduation. This is the calculus
the Constitution commands.
The Government’s argument gives insufficient recognition
to the real conflict of conscience faced by the young student.
The essence of the Government’s position is that with regard
to a civic, social occasion of this importance it is the objector,
not the majority, who must take unilateral and private action
to avoid compromising religious scruples, hereby electing to
miss the graduation exercise. This turns conventional First
Amendment analysis on its head. It is a tenet of the First
Amendment that the State cannot require one of its citizens to
forfeit his or her rights and benefits as the price of resisting
conformance to state-sponsored religious practice. To say that
a student must remain apart from the ceremony at the
opening invocation and closing benediction is to risk
compelling conformity in an environment analogous to the
classroom setting, where we have said the risk of compulsion
is especially high. Just as in Engel v. Vitale . . . . and School Dist.
Of Abington v. Schempp . . . . where we found that provisions
within the challenged legislation permitting a student to be
voluntarily excused from attendance or participation in the
daily prayers did not shield those practices from invalidation,
the fact that attendance at the graduation ceremonies is
voluntary in a legal sense does not save the religious exercise.
Inherent differences between the public school system and
a session of a state legislature distinguish this case from. The
considerations we have raised in objection to the invocation
and benediction are in many respects similar to the arguments
we considered in Marsh [a case upholding the practice of
prayer to open state legislative sessions]. But there are also
obvious differences. The atmosphere at the opening of a
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session of a state legislature where adults are free to enter and
leave with little comment and for any number of reasons
cannot compare with the constraining potential of the one
school event most important for the student to attend. The
influence and force of a formal exercise in a school graduation
are far greater than the prayer exercise we condoned in
Marsh. The Marsh majority in fact gave specific recognition to
this distinction and placed particular reliance on it in
upholding the prayers at issue there. Today’s case is different.
At a high school graduation, teachers and principals must and
do retain a high degree of control over the precise contents of
the program, the speeches, the timing, the movements, the
dress, and the decorum of the students. In this atmosphere the
state-imposed character of an invocation and benediction by
clergy selected by the school combine to make the prayer a
state-sanctioned religious exercise in which the student was
left with no alternative but to submit. This is different from
Marsh and suffices to make the religious exercise a First
Amendment violation. Our Establishment Clause
jurisprudence remains a delicate and fact-sensitive one, and
we cannot accept the parallel relied upon by petitioners and
the United States between the facts of Marsh and the case
now before us. Our decisions in Engel v. Vitale and School Dist.
of Abington v. Schempp require us to distinguish the public
school context.
We do not hold that every state action implicating religion
is invalid if one or a few citizens find it offensive. People may
take offense at all manner of religious as well as nonreligious
messages, but offense alone does not in every case show a
violation. We know too that sometimes to endure social
isolation or even anger may be the price of conscience or
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nonconformity. But, by any reading of our cases, the
conformity required of the student in this case was too high
an exaction to withstand the test of the Establishment Clause.
The prayer exercises in this case are especially improper
because the State has in every practical sense compelled
attendance and participation in an explicit religious exercise
at an event of singular importance to every student, one the
objecting student had no real alternative to avoid.
Our jurisprudence in this area is of necessity one of linedrawing, of determining at what point a dissenter’s rights of
religious freedom are infringed by the State.
"The First Amendment does not prohibit practices which by
any realistic measure create none of the dangers which it is
designed to prevent and which do not so directly or
substantially involve the state in religious exercises or in the
favoring of religion as to have meaningful and practical
impact. It is of course true that great consequences can grow
from small beginnings, but the measure of constitutional
adjudication is the ability and willingness to distinguish
between real threat and mere shadow."
Our society would be less than true to its heritage if it
lacked abiding concern for the values of its young people, and
we acknowledge the profound belief of adherents to many
faiths that there must be a place in the student’s life for
precepts of a morality higher even than the law we today
enforce. We express no hostility to those aspirations, nor
would our oath permit us to do so. A relentless and allpervasive attempt to exclude religion from every aspect of
public life could itself become inconsistent with the
Constitution. We recognize that, at graduation time and
throughout the course of the educational process, there will
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be instances when religious values, religious practices, and
religious persons will have some interaction with the public
schools and their students. But these matters, often questions
of accommodation of religion, are not before us. The sole
question presented is whether a religious exercise may be
conducted at a graduation ceremony in circumstances where,
as we have found, young graduates who object are induced to
conform. No holding by this Court suggests that a school can
persuade or compel a student to participate in a religious
exercise. That is being done here, and it is forbidden by the
Establishment Clause of the First Amendment.
For the reasons we have stated, the judgment of the Court
of Appeals is affirmed.
Justice Blackmun, with whom Justice Stevens and
Justice O’Connor join, concurring.
Nearly half a century of review and refinement of
Establishment Clause jurisprudence has distilled one clear
understanding: Government may neither promote nor affiliate
itself with any religious doctrine or organization, nor may it
obtrude itself in the internal affairs of any religious institution.
The application of these principles to the present case
mandates the decision reached today by the Court.
. . . . There can be “no doubt” that the “invocation of God’s
blessings” delivered at Nathan Bishop Middle School “is a
religious activity.” In the words of Engel, the Rabbi’s prayer
“is a solemn avowal of divine faith and supplication for the
blessings of the Almighty. The nature of such a prayer has
always been religious.” The question then is whether the
government has “plac[ed] its official stamp of approval” on
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the prayer. As the Court ably demonstrates, when the
government “compose[s] official prayers,” selects the member
of the clergy to deliver the prayer, has the prayer delivered at
a public school event that is planned, supervised and given by
school officials, and pressures students to attend and
participate in the prayer, there can be no doubt that the
government is advancing and promoting religion. As our prior
decisions teach us, it is this that the Constitution prohibits.
. . . . I join the Court’s opinion today because I find nothing
in it inconsistent with the essential precepts of the
Establishment Clause developed in our precedents. The Court
holds that the graduation prayer is unconstitutional because
the State “in effect required participation in a religious
exercise.” Although our precedents make clear that proof of
government coercion is not necessary to prove an
Establishment Clause violation, it is sufficient. Government
pressure to participate in a religious activity is an obvious
indication that the government is endorsing or promoting
religion.
But it is not enough that the government restrain from
compelling religious practices: It must not engage in them
either. The Court repeatedly has recognized that a violation of
the Establishment Clause is not predicated on coercion. The
Establishment Clause proscribes public schools from
“conveying or attempting to convey a message that religion or
a particular religious belief is favored or preferred,” . . . . even
if the schools do not actually “impos[e] pressure upon a
student to participate in a religious activity.”
. . . . The mixing of government and religion can be a threat
to free government, even if no one is forced to participate.
When the government puts its imprimatur on a particular
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religion, it conveys a message of exclusion to all those who do
not adhere to the favored beliefs. A government cannot be
premised on the belief that all persons are created equal when
it asserts that God prefers some. . . . .
Madison warned that government officials who would use
religious authority to pursue secular ends “exceed the
commission from which they derive their authority and are
Tyrants. The People who submit to it are governed by laws
made neither by themselves, nor by an authority derived from
them, and are slaves.” Democratic government will not last
long when proclamation replaces persuasion as the medium of
political exchange.
Likewise, we have recognized that “[r]eligion flourishes in
greater purity, without than with the aid of Gov[ernment].” . .
. . When the government favors a particular religion or sect,
the disadvantage to all others is obvious, but even the favored
religion may fear being “taint[ed] ... with a corrosive
secularism.” The favored religion may be compromised as
political figures reshape the religion’s beliefs for their own
purposes; it may be reformed as government largesse brings
government regulation. Keeping religion in the hands of
private groups minimizes state intrusion on religious choice
and best enables each religion to “flourish according to the
zeal of its adherents and the appeal of its dogma.”
It is these understandings and fears that underlie our
Establishment Clause jurisprudence. e have believed that
religious freedom cannot exist in the absence of a free
democratic government, and that such a government cannot
endure when there is fusion between religion and the political
regime. We have believed that religious freedom cannot thrive
in the absence of a vibrant religious community and that such
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a community cannot prosper when it is bound to the secular.
And we have believed that these were the animating
principles behind the adoption of the Establishment Clause.
To that end, our cases have prohibited government
endorsement of religion, its sponsorship, and active
involvement in religion, whether or not citizens were coerced
to conform.
I remain convinced that our jurisprudence is not misguided,
and that it requires the decision reached by the Court today.
Accordingly, I join the Court in affirming the judgment of the
Court of Appeals.
[The concurring opinion of Justice Souter has been
omitted.]
Justice Scalia, with whom Chief Justice Rehnquist,
Justice White, and Justice Thomas join,
dissenting.
Three Terms ago, I joined an opinion recognizing that the
Establishment Clause must be construed in light of the
“[g]overnment policies of accommodation, acknowledgment,
and support for religion [that] are an accepted part of our
political and cultural heritage.” That opinion affirmed that
“the meaning of the Clause is to be determined by reference to
historical practices and understandings.” It said that “[a] test
for implementing the protections of the Establishment Clause
that, if applied with consistency, would invalidate
longstanding traditions cannot be a proper reading of the
Clause.”
These views of course prevent me from joining today’s
opinion, which is conspicuously bereft of any reference to
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history. In holding that the Establishment Clause prohibits
invocations and benedictions at public-school graduation
ceremonies, the Court – with nary a mention that it is doing
so – lays waste a tradition that is as old as public-school
graduation ceremonies themselves, and that is a component of
an even more longstanding American tradition of
nonsectarian prayers to God at public celebrations generally.
As its instrument of destruction, the bulldozer of social
engineering, the Court invents a boundless, and boundlessly
manipulable, test of psychological coercion, which promises to
do for the Establishment Clause what the Durham rule did
for the insanity defense.
Today’s opinion shows more forcefully than volumes of
argumentation why our Nation’s protection, that fortress
which is our Constitution, cannot possibly rest upon the
changeable philosophical predilections of the Justices of this
Court, but must have deep foundations in the historic
practices of our people.
I
Justice Holmes’ aphorism that “a page of history is worth a
volume of logic” . . . . applies with particular force to our
Establishment Clause jurisprudence. . . . . “[T]he line we must
draw between the permissible and the impermissible is one
which accords with history and faithfully reflects the
understanding of the Founding Fathers.” “[H]istorical
evidence sheds light not only on what the draftsmen intended
the Establishment Clause to mean, but also on how they
thought that Clause applied” to contemporaneous practices.
Thus, “[t]he existence from the beginning of the Nation’s life
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of a practice, [while] not conclusive of its constitutionality ...
[,] is a fact of considerable import in the interpretation” of the
Establishment Clause.
The history and tradition of our Nation are replete with
public ceremonies featuring prayers of thanksgiving and
petition. Illustrations of this point have been amply provided
in our prior opinions, but since the Court is so oblivious to
our history as to suggest that the Constitution restricts
“preservation and transmission of religious beliefs ... to the
private sphere,” it appears necessary to provide another brief
account.
[Justice Scalia lists the long tradition of religious
invocations by the nation’s presidents at various events,
including inaugurations and proclamations.]
The other two branches of the Federal Government also
have a long-established practice of prayer at public events. As
we detailed in Marsh, congressional sessions have opened with
a chaplain’s prayer ever since the First Congress. And this
Court’s own sessions have opened with the invocation “God
save the United States and this Honorable Court” since the
days of Chief Justice Marshall.
In addition to this general tradition of prayer at public
ceremonies, there exists a more specific tradition of
invocations and benedictions at public school graduation
exercises. By one account, the first public high school
graduation ceremony took place in Connecticut in July 1868
– the very month, as it happens, that the Fourteenth
Amendment (the vehicle by which the Establishment Clause
has been applied against the States) was ratified – when “15
seniors from the Norwich Free Academy marched in their
best Sunday suits and dresses into a church hall and waited
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through majestic music and long prayers.” As the Court
obliquely acknowledges in describing the “customary
features” of high school graduations and as respondents do
not contest, the invocation and benediction have long been
recognized to be “as traditional as any other parts of the
[school] graduation program and are widely established.”
II
The Court presumably would separate graduation invocations
and benedictions from other instances of public “preservation
and transmission of religious beliefs” on the ground that they
involve “psychological coercion.” I find it a sufficient
embarrassment that our Establishment Clause jurisprudence
regarding holiday displays[] . . . . has come to “requir[e]
scrutiny more commonly associated with interior decorators
than with the judiciary.” But interior decorating is a rockhard science compared to psychology practiced by amateurs.
A few citations of “[r]esearch in psychology” that have no
particular bearing upon the precise issue here cannot disguise
the fact that the Court has gone beyond the realm where
judges know what they are doing. The Court’s argument that
state officials have “coerced” students to take part in the
invocation and benediction at graduation ceremonies is, not to
put too fine a point on it, incoherent.
The Court identifies two “dominant facts” that it says
dictate its ruling that invocations and benedictions at public
school graduation ceremonies violate the Establishment
Clause. Neither of them is in any relevant sense true.
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A
The Court declares that students’ “attendance and
participation in the [invocation and benediction] are in a fair
and real sense obligatory.” But what exactly is this “fair and
real sense”? According to the Court, students at graduation
who want “to avoid the fact or appearance of participation” in
the invocation and benediction are psychologically obligated
by “public pressure, as well as peer pressure, ... to stand as a
group or, at least, maintain respectful silence” during those
prayers. This assertion – the very linchpin of the Court’s
opinion – is almost as intriguing for what it does not say as for
what it says. It does not say, for example, that students are
psychologically coerced to bow their heads, place their hands
in a Drüer-like prayer position, pay attention to the prayers,
utter “Amen,” or in fact pray. (Perhaps further intensive
psychological research remains to be done on these matters.)
It claims only that students are psychologically coerced “to
stand ... or, at least, maintain respectful silence.” Both halves
of this disjunctive (both of which must amount to the fact or
appearance of participation in prayer if the Court’s analysis is
to survive on its own terms) merit particular attention.
To begin with the latter: The Court’s notion that a student
who simply sits in
“respectful silence” during the invocation and benediction
(when all others are standing) has somehow joined – or would
somehow be perceived as having joined – in the prayers is
nothing short of ludicrous. We indeed live in a vulgar age. But
surely “our social conventions” have not coarsened to the
point that anyone who does not stand on his chair and shout
obscenities can reasonably be deemed to have assented to
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everything said in his presence. Since the Court does not
dispute that students exposed to prayer at graduation
ceremonies retain (despite “subtle coercive pressures”) the
free will to sit there is absolutely no basis for the Court’s
decision. It is fanciful enough to say that “a reasonable
dissenter,” standing head erect in a class of bowed heads,
“could believe that the group exercise signified her own
participation or approval of it.” It is beyond the absurd to say
that she could entertain such a belief while pointedly
declining to rise.
But let us assume the very worst, that the nonparticipating
graduate is “subtly coerced” ... to stand! Even that half of the
disjunctive does not remotely establish a “participation” (or an
“appearance of participation”) in a religious exercise. The
Court acknowledges that “in our culture standing ... can
signify adherence to a view or simple respect for the views of
others." (Much more often the latter than the former, I think,
except perhaps in the proverbial town meeting, where one
votes by standing.) But if it is a permissible inference that one
who is standing is doing so simply out of respect for the
prayers of others that are in progress, then how can it
possibly be said that a “reasonable dissenter ... could believe
that the group exercise signified her own participation or
approval”? Quite obviously, it cannot. I may add, moreover,
that maintaining respect for the religious observances of
others is a fundamental civic virtue that government
(including the public schools) can and should cultivate – so
that even if it were the case that the displaying of such respect
might be mistaken for taking part in the prayer, I would deny
that the dissenter’s interest in avoiding even the false
appearance of participation constitutionally trumps the
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government’s interest in fostering respect for religion
generally.
The opinion manifests that the Court itself has not given
careful consideration to its test of psychological coercion. For
if it had, how could it observe, with no hint of concern or
disapproval, that students stood for the Pledge of Allegiance,
which immediately preceded Rabbi Gutterman’s invocation?
The government can, of course, no more coerce political
orthodoxy than religious orthodoxy. Moreover, since the
Pledge of Allegiance has been revised since Barnette to include
the phrase “under God,” recital of the Pledge would appear to
raise the same Establishment Clause issue as the invocation
and benediction. If students were psychologically coerced to
remain standing during the invocation, they must also have
been psychologically coerced, moments before, to stand for
(and thereby, in the Court’s view, take part in or appear to
take part in) the Pledge. Must the Pledge therefore be barred
from the public schools (both from graduation ceremonies
and from the classroom)? In Barnette we held that a public
school student could not be compelled to recite the Pledge; we
did not even hint that she could not be compelled to observe
respectful silence – indeed, even to stand in respectful silence
– when those who wished to recite it did so. Logically, that
ought to be the next project for the Court’s bulldozer.
I also find it odd that the Court concludes that high school
graduates may not be subjected to this supposed
psychological coercion, yet refrains from addressing whether
“mature adults” may. I had thought that the reason graduation
from high school is regarded as so significant an event is that
it is generally associated with transition from adolescence to
young adulthood. Many graduating seniors, of course, are old
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enough to vote. Why, then, does the Court treat them as
though they were first-graders? Will we soon have a
jurisprudence that distinguishes between mature and
immature adults?
B
The other “dominant fac[t]” identified by the Court is that
“[s]tate officials direct the performance of a formal religious
exercise” at school graduation ceremonies. “Direct[ing] the
performance of a formal religious exercise” has a sound of
liturgy to it, summoning up images of the principal directing
acolytes where to carry the cross, or showing the rabbi where
to unroll the Torah. A Court professing to be engaged in a
“delicate and fact-sensitive” line-drawing, . . . . would better
describe what it means as “prescribing the content of an
invocation and benediction.” But even that would be false. All
the record shows is that principals of the Providence public
schools, acting within their delegated authority, have invited
clergy to deliver invocations and benedictions at graduations;
and that Principal Lee invited Rabbi Gutterman, provided
him a two-page pamphlet, prepared by the National
Conference of Christians and Jews, giving general advice on
inclusive prayer for civic occasions, and advised him that his
prayers at graduation should be nonsectarian. . . . . The Court
identifies nothing in the record remotely suggesting that
school officials have ever drafted, edited, screened, or
censored graduation prayers, or that Rabbi Gutterman was a
mouthpiece of the school officials. . . . .
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III
The deeper flaw in the Court’s opinion does not lie in its
wrong answer to the question whether there was stateinduced “peer-pressure” coercion; it lies, rather, in the Court’s
making violation of the Establishment Clause hinge on such a
precious question. The coercion that was a hallmark of
historical establishments of religion was coercion of religious
orthodoxy and of financial support by force of law and threat
of penalty. Typically, attendance at the state church was
required; only clergy of the official church could lawfully
perform sacraments; and dissenters, if tolerated, faced an
array of civil disabilities. Thus, for example, in the Colony of
Virginia, where the Church of England had been established,
ministers were required by law to conform to the doctrine and
rites of the Church of England; and all persons were required
to attend church and observe the Sabbath, were tithed for the
public support of Anglican ministers, and were taxed for the
costs of building and repairing churches.
The Establishment Clause was adopted to prohibit such an
establishment of religion at the federal level (and to protect
state establishments of religion from federal interference). I
will further acknowledge for the sake of argument that, as
some scholars have argued, by 1790 the term “establishment”
had acquired an additional meaning – “financial support of
religion generally, by public taxation” – that reflected the
development of “general or multiple” establishments, not
limited to a single church. But that would still be an
establishment coerced by force of law. And I will further
concede that our constitutional tradition, from the
Declaration of Independence and the first inaugural address
of Washington, quoted earlier, down to the present day, has,
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with a few aberrations . . . . ruled out of order governmentsponsored endorsement of religion – even when no legal
coercion is present, and indeed even when no ersatz, “peerpressure” psycho-coercion is present – where the
endorsement is sectarian, in the sense of specifying details
upon which men and women who believe in a benevolent,
omnipotent Creator and Ruler of the world are known to
differ (for example, the divinity of Christ). But there is simply
no support for the proposition that the officially sponsored
nondenominational invocation and benediction read by Rabbi
Gutterman – with no one legally coerced to recite them –
violated the Constitution of the United States. To the
contrary, they are so characteristically American they could
have come from the pen of George Washington or Abraham
Lincoln himself.
Thus, while I have no quarrel with the Court’s general
proposition that the Establishment Clause “guarantees that
government may not coerce anyone to support or participate
in religion or its exercise,” I see no warrant for expanding the
concept of coercion beyond acts backed by threat of penalty –
a brand of coercion that, happily, is readily discernible to
those of us who have made a career of reading the disciples of
Blackstone rather than of Freud.
The Framers were indeed opposed to coercion of religious
worship by the National Government; but, as their own
sponsorship of nonsectarian prayer in public events
demonstrates, they understood that "[s]peech is not coercive;
the listener may do as he likes."
This historical discussion places in revealing perspective the
Court’s extravagant claim that the State has “for all practical
purposes” and “in every practical sense” compelled students
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to participate in prayers at graduation. Beyond the fact,
stipulated to by the parties, that attendance at graduation is
voluntary, there is nothing in the record to indicate that
failure of attending students to take part in the invocation or
benediction was subject to any penalty or discipline. Contrast
this with, for example, the facts of Barnette: Schoolchildren
were required by law to recite the Pledge of Allegiance;
failure to do so resulted in expulsion, threatened the expelled
child with the prospect of being sent to a reformatory for
criminally inclined juveniles, and subjected his parents to
prosecution (and incarceration) for causing delinquency. To
characterize the “subtle coercive pressures,” . . . . allegedly
present here as the “practical” equivalent of the legal
sanctions in Barnette is ... well, let me just say it is not a
“delicate and fact-sensitive” analysis.
The Court relies on our “school prayer” cases, Engel v. Vitale
and School Dist. Of Abington v. Schempp. But whatever the merit
of those cases, they do not support, much less compel, the
Court’s psycho-journey. In the first place, Engel and Schempp
do not constitute an exception to the rule, distilled from
historical practice, that public ceremonies may include prayer;
rather, they simply do not fall within the scope of the rule (for
the obvious reason that school instruction is not a public
ceremony). Second, we have made clear our understanding
that school prayer occurs within a framework in which legal
coercion to attend school (i.e., coercion under threat of
penalty) provides the ultimate backdrop. In Schempp, for
example, we emphasized that the prayers were "prescribed as
part of the curricular activities of students who are required
by law to attend school." Engel’s suggestion that the school
prayer program at issue there – which permitted students "to
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remain silent or be excused from the room – involved
"indirect coercive pressure," should be understood against this
backdrop of legal coercion. The question whether the opt-out
procedure in Engel sufficed to dispel the coercion resulting
from the mandatory attendance requirement is quite different
from the question whether forbidden coercion exists in an
environment utterly devoid of legal compulsion. And finally,
our school prayer cases turn in part on the fact that the
classroom is inherently an instructional setting, and daily
prayer there – where parents are not present to counter "the
students’ emulation of teachers as role models and the
children’s susceptibility to peer pressure," – might be thought
to raise special concerns regarding state interference with the
liberty of parents to direct the religious upbringing of their
children: "Families entrust public schools with the education
of their children, but condition their trust on the
understanding that the classroom will not purposely be used
to advance religious views that may conflict with the private
beliefs of the student and his or her family." Voluntary prayer
at graduation – a one-time ceremony at which parents,
friends, and relatives are present – can hardly be thought to
raise the same concerns.
IV
Our Religion Clause jurisprudence has become bedeviled (so
to speak) by reliance on formulaic abstractions that are not
derived from, but positively conflict with, our long-accepted
constitutional traditions. Foremost among these has been the
so-called Lemon test, which has received well-earned criticism
from many Members of this Court. The Court today
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demonstrates the irrelevance of Lemon by essentially ignoring
it, and the interment of that case may the only happy
byproduct of the Court’s otherwise lamentable decision.
Unfortunately, however, the Court has replaced Lemon with
its psycho-coercion test, which suffers the double disability of
having no roots whatever in our people’s historic practice, and
being as infinitely expandable as the reasons for
psychotherapy itself.
Another happy aspect of the case is that it is only a
jurisprudential disaster and not a practical one. Given the odd
basis for the Court’s decision, invocations and benedictions
will be able to be given at public school graduations next
June, as they have for the past century and a half, so long as
school authorities make clear that anyone who abstains from
screaming in protest does not necessarily participate in the
prayers. All that is seemingly needed is an announcement, or
perhaps a written insertion at the beginning of the graduation
program, to the effect that, while all are asked to rise for the
invocation and benediction, none is compelled to join in them,
nor will be assumed, by rising, to have done so. That obvious
fact recited, the graduates and their parents may proceed to
thank God, as Americans have always done, for the blessings
He has generously bestowed on them and on their country.
***
The reader has been told much in this case about the
personal interest of Mr. Weisman and his daughter, and very
little about the personal interests on the other side. They are
not inconsequential. Church and state would not be such a
difficult subject if religion were, as the Court apparently
thinks it to be, some purely personal avocation that can be
indulged entirely in secret, like pornography, in the privacy of
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one’s room. For most believers it is not that, and has never
been. Religious men and women of almost all denominations
have felt it necessary to acknowledge and beseech the blessing
of God as a people, and not just as individuals, because they
believe in the “protection of divine Providence,” as the
Declaration of Independence put it, not just for individuals
but for societies; because they believe God to be, as
Washington’s first Thanksgiving Proclamation put it, the
“Great Lord and Ruler of Nations.” One can believe in the
effectiveness of such public worship, or one can deprecate
and deride it. But the longstanding American tradition of
prayer at official ceremonies displays with unmistakable
clarity that the Establishment Clause does not forbid the
government to accommodate it. . . . .
I must add one final observation: The Founders of our
Republic knew the fearsome potential of sectarian religious
belief to generate civil dissension and civil strife. And they
also knew that nothing, absolutely nothing, is so inclined to
foster among religious believers of various faiths a toleration –
no, an affection – for one another than voluntarily joining in
prayer together, to the God whom they all worship and seek.
Needless to say, no one should be compelled to do that, but it
is a shame to deprive our public culture of the opportunity,
and indeed the encouragement, for people to do it voluntarily.
The Baptist or Catholic who heard and joined in the simple
and inspiring prayers of Rabbi Gutterman on this official and
patriotic occasion was inoculated from religious bigotry and
prejudice in a manner that cannot be replicated. To deprive
our society of that important unifying mechanism, in order to
spare the nonbeliever what seems to me the minimal
inconvenience of standing or even sitting in respectful
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nonparticipation, is as senseless in policy as it is unsupported
in law.
For the foregoing reasons, I dissent.
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Meeting 3: What Is Good?
What Is Good?
The substantive reading for this class consists of the following
three articles by Lawrence Solum on utilitarianism,
deontology, and virtue ethics.
– http://lsolum.typepad.com/legal_theory_lexicon/
2003/11/legal_theory_le_4.html
– http://lsolum.typepad.com/legal_theory_lexicon/
2003/11/legal_theory_le_2.html
– http://lsolum.typepad.com/legal_theory_lexicon/
2003/11/legal_theory_le.html
After reading the next case, Furman, try to make a utilitarian
argument for and a utilitarian argument against the death
penalty. Then see whether you can make a deontological
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argument for and a deontological argument against the death
penalty. Observe how these arguments differ and what sort of
evidence is relevant to one set of arguments but not to
another.
Furman v. Georgia, 408 U.S. 238
(1972)
PER CURIAM.
Petitioner in No. 69-5003 was convicted of murder in Georgia
and was sentenced to death pursuant to [Georgia law].
Petitioner in No. 69-5030 was convicted of rape in Georgia
and was sentenced to death pursuant to [Georgia law].
Petitioner in No. 69-5031 was convicted of rape in Texas and
was sentenced to death pursuant to [Texas law]. Certiorari
was granted limited to the following question: ‘Does the
imposition and carrying out of the death penalty in (these
cases) constitute cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments?’ The Court holds
that the imposition and carrying out of the death penalty in
these cases constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments. The
judgment in each case is therefore reversed insofar as it leaves
undisturbed the death sentence imposed, and the cases are
remanded for further proceedings. So ordered.
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Mr. Justice BRENNAN, concurring.
The question presented in these cases is whether death is
today a punishment for crime that is ‘cruel and unusual’ and
consequently, by virtue of the Eighth and Fourteenth
Amendments, beyond the power of the State to inflict.
Almost a century ago, this Court observed that ‘(d)ifficulty
would attend the effort to define with exactness the extent of
the constitutional provision which provides that cruel and
unusual punishments shall not be inflicted.’ Less than 15
years ago, it was again noted that ‘(t)he exact scope of the
constitutional phrase ‘cruel and unusual’ has not been detailed
by this Court.’ Those statements remain true today. The Cruel
and Unusual Punishments Clause, like the other great clauses
of the Constitution, is not susceptible of precise definition. Yet
we know that the values and ideals it embodies are basic to
our scheme of government. And we know also that the Clause
imposes upon this Court the duty, when the issue is properly
presented, to determine the constitutional validity of a
challenged punishment, whatever that punishment may be. In
these cases, ‘(t)hat issue confronts us, and the task of
resolving it is inescapably ours.’
I
We have very little evidence of the Framers’ intent in
including the Cruel and Unusual Punishments Clause among
those restraints upon the new Government enumerated in the
Bill of Rights. [Brennan goes on to to give a history of the 8th
Amendment.]
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Several conclusions thus emerge from the history of the
adoption of the Clause. We know that the Framers’ concern
was directed specifically at the exercise of legislative power.
They included in the Bill of Rights a prohibition upon ‘cruel
and unusual punishments’ precisely because the legislature
would otherwise have had the unfettered power to prescribe
punishments for crimes. Yet we cannot now know exactly
what the Framers thought ‘cruel and unusual punishments’
were. Certainly they intended to ban torturous punishments,
but the available evidence does not support the further
conclusion that only torturous punishments were to be
outlawed. As Livermore’s comments demonstrate, the
Framers were well aware that the reach of the Clause was not
limited to the proscription of unspeakable atrocities. Nor did
they intend simply to forbid punishments considered ‘cruel
and unusual’ at the time. The ‘import’ of the Clause is, indeed,
‘indefinite,’ and for good reason. A constitutional provision ‘is
enacted, it is true, from an experience of evils, but its general
language should not, therefore, be necessarily confined to the
form that evil had theretofore taken. Time works changes,
brings into existence new conditions and purposes. Therefore
a principle, to be vital, must be capable of wider application
than the mischief which gave it birth.’
[Brennan discusses how the Court has interpreted the
Cruel and Unusual Clause over time, ultimately concluding
that the Court has rejected an interpretation that is limited by
history or the desires of the legislature. The historical
approach was rejected because it unnecessarily limited the
scope of the Clause, and the Court has been unwilling to
allow the representative branch—which may be swayed by
concerns that would undermine the effectiveness of the
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Clause—to dictate what constitutes cruel and unusual
punishment.]
Judicial enforcement of the Clause, then, cannot be evaded
by invoking the obvious truth that legislatures have the power
to prescribe punishments for crimes. That is precisely the
reason the Clause appears in the Bill of Rights. The difficulty
arises, rather, in formulating the ‘legal principles to be applied
by the courts’ when a legislatively prescribed punishment is
challenged as ‘cruel and unusual.’ In formulating those
constitutional principles, we must avoid the insertion of
‘judicial conception(s) of . . . wisdom or propriety,’ . . . yet we
must not, in the guise of ‘judicial restraint,’ abdicate our
fundamental responsibility to enforce the Bill of Rights. Were
we to do so, the ‘constitution would indeed be as easy of
application as it would be deficient in efficacy and power. Its
general principles would have little value and be converted by
precedent into impotent and lifeless formulas. Rights declared
in words might be lost in reality.’ The Cruel and Unusual
Punishments Clause would become, in short, ‘little more than
good advice.’
II
Ours would indeed be a simple task were we required merely
to measure a challenged punishment against those that history
has long condemned. That narrow and unwarranted view of
the Clause, however, was left behind with the 19th century.
Our task today is more complex. We know ‘that the words of
the (Clause) are not precise, and that their scope is not static.’
We know, therefore, that the Clause ‘must draw its meaning
from the evolving standards of decency that mark the
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progress of a maturing society.’ That knowledge, of course, is
but the beginning of the inquiry.
In Trop v. Dulles . . . it was said that ‘(t)he question is
whether (a) penalty subjects the individual to a fate forbidden
by the principle of civilized treatment guaranteed by the
(Clause).’ It was also said that a challenged punishment must
be examined ‘in light of the basic prohibition against inhuman
treatment’ embodied in the Clause. It was said, finally, that:
‘The basic concept underlying the (Clause) is nothing
less than the dignity of man. While the State has the
power to punish, the (Clause) stands to assure that this
power be exercised within the limits of civilized
standards.’
At bottom, then, the Cruel and Unusual Punishments Clause
prohibits the infliction of uncivilized and inhuman
punishments. The State, even as it punishes, must treat its
members with respect for their intrinsic worth as human
beings. A punishment is ‘cruel and unusual,’ therefore, if it
does not comport with human dignity.
This formulation, of course, does not of itself yield
principles for assessing the constitutional validity of particular
punishments. Nevertheless, even though ‘(t)his Court has had
little occasion to give precise content to the (Clause),’ . . .
there are principles recognized in our cases and inherent in
the Clause sufficient to permit a judicial determination
whether a challenged punishment comports with human
dignity.
The primary principle is that a punishment must not be so
severe as to be degrading to the dignity of human beings.
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Pain, certainly, may be a factor in the judgment. The infliction
of an extremely severe punishment will often entail physical
suffering. Yet the Framers also knew ‘that there could be
exercises of cruelty by laws other than those which inflicted
bodily pain or mutilation.’ Even though ‘(t)here may be
involved no physical mistreatment, no primitive torture,’ . . .
severe mental pain may be inherent in the infliction of a
particular punishment. . . . .
More than the presence of pain, however, is comprehended
in the judgment that the extreme severity of a punishment
makes it degrading to the dignity of human beings. The
barbaric punishments condemned by history, ‘punishments
which inflict torture, such as the rack, the thumb-screw, the
iron boot, the stretching of limbs, and the like,’ are, of course,
‘attended with acute pain and suffering.’ When we consider
why they have been condemned, however, we realize that the
pain involved is not the only reason. The true significance of
these punishments is that they treat members of the human
race as nonhumans, as objects to be toyed with and discarded.
They are thus inconsistent with the fundamental premise of
the Clause that even the vilest criminal remains a human
being possessed of common human dignity.
The infliction of an extremely severe punishment, then, like
the one before the Court in Weems v. United States, from which
‘(n)o circumstance of degradation (was) omitted,’ . . . may
reflect the attitude that the person punished is not entitled to
recognition as a fellow human being. That attitude may be
apparent apart from the severity of the punishment itself. In
Louisiana ex rel. Francis v. Resweber . . . for example, the
unsuccessful electrocution, although it caused ‘mental anguish
and physical pain,’ was the result of ‘an unforeseeable
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accident.’ Had the failure been intentional, however, the
punishment would have been, like torture, so degrading and
indecent as to amount to a refusal to accord the criminal
human status. Indeed, a punishment may be degrading to
human dignity solely because it is a punishment. A State may
not punish a person for being ‘mentally ill, or a leper, or . . .
afflicted with a veneral disease,’ or for being addicted to
narcotics. To inflict punishment for having a disease is to treat
the individual as a diseased thing rather than as a sick human
being. That the punishment is not severe, ‘in the abstract,’ is
irrelevant; ‘(e)ven one day in prison would be a cruel and
unusual punishment for the ‘crime’ of having a common cold.’
Finally, of course, a punishment may be degrading simply by
reason of its enormity. A prime example is expatriation, a
‘punishment more primitive than torture,’ . . . for it necessarily
involves a denial by society of the individual’s existence as a
member of the human community.
In determining whether a punishment comports with
human dignity, we are aided also by a second principle
inherent in the Clause—that the State must not arbitrarily
inflict a severe punishment. This principle derives from the
notion that the State does not respect human dignity when,
without reason, it inflicts upon some people a severe
punishment that it does not inflict upon others. Indeed, the
very words ‘cruel and unusual punishments’ imply
condemnation of the arbitrary infliction of severe
punishments. And, as we now know, the English history of
the Clause reveals a particular concern with the establishment
of a safeguard against arbitrary punishments.
This principle has been recognized in our cases. In
Wilkerson v. Utah . . . the Court reviewed various treatises on
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military law in order to demonstrate that under ‘the custom of
war’ shooting was a common method of inflicting the
punishment of death. . . . . As Wilkerson suggests, when a
severe punishment is inflicted ‘in the great majority of cases’
in which it is legally available, there is little likelihood that the
State is inflicting it arbitrarily. If, however, the infliction of a
severe punishment is ‘something different from that which is
generally done’ in such cases, . . . there is a substantial
likelihood that the State, contrary to the requirements of
regularity and fairness embodied in the Clause, is inflicting
the punishment arbitrarily. This principle is especially
important today. There is scant danger, given the political
processes ‘in an enlightened democracy such as ours,’ . . . that
extremely severe punishments will be widely applied. The
more significant function of the Clause, therefore, is to protect
against the danger of their arbitrary infliction.
A third principle inherent in the Clause is that a severe
punishment must not be unacceptable to contemporary
society. Rejection by society, of course, is a strong indication
that a severe punishment does not comport with human
dignity. In applying this principle, however, we must make
certain that the judicial determination is as objective as
possible. Thus, for example, Weems . . . and Trop suggest that
one factor that may be considered is the existence of the
punishment in jurisdictions other than those before the Court.
Wilkerson suggests that another factor to be considered is the
historic usage of the punishment. Trop . . . combined present
acceptance with past usage by observing that ‘the death
penalty has been employed throughout our history, and, in a
day when it is still widely accepted, it cannot be said to violate
the constitutional concept of cruelty.’ In Robinson v.
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California . . . which involved the infliction of punishment for
narcotics addiction, the Court went a step further, concluding
simply that ‘in the light of contemporary human knowledge, a
law which made a criminal offense of such disease would
doubtless be universally thought to be an infliction of cruel
and unusual punishment.’
The question under this principle, then, is whether there
are objective indicators from which a court can conclude that
contemporary society considers a severe punishment
unacceptable. Accordingly, the judicial task is to review the
history of a challenged punishment and to examine society’s
present practices with respect to its use. Legislative
authorization, of course, does not establish acceptance. The
acceptability of a severe punishment is measured, not by its
availability, for it might become so offensive to society as
never to be inflicted, but by its use.
The final principle inherent in the Clause is that a severe
punishment must not be excessive. A punishment is excessive
under this principle if it is unnecessary: The infliction of a
severe punishment by the State cannot comport with human
dignity when it is nothing more than the pointless infliction of
suffering. If there is a significantly less severe punishment
adequate to achieve the purposes for which the punishment is
inflicted, . . . the punishment inflicted is unnecessary and
therefore excessive.
This principle appeared in our cases in Mr. Justice Field’s
dissent in O’Neil v. Vermont . . .. He there took the position that:
‘(The Clause) is directed, not only against punishments
of the character mentioned (torturous punishments), but
against all punishments which by their excessive length
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or severity are greatly disproportioned to the offenses
charged. The whole inhibition is against that which is
excessive either in the bail required, or fine imposed, or
punishment inflicted.’
Although the determination that a severe punishment is
excessive may be grounded in a judgment that it is
disproportionate to the crime, the more significant basis is
that the punishment serves no penal purpose more effectively
than a less severe punishment. This view of the principle was
explicitly recognized by the Court in Weems. There the Court,
reviewing a severe punishment inflicted for the falsification of
an official record, found that ‘the highest punishment possible
for a crime which may cause the loss of many thousand(s) of
dollars, and to prevent which the duty of the state should be
as eager as to prevent the perversion of truth in a public
document, is not greater than that which may be imposed for
falsifying a single item of a public account.’ Stating that ‘this
contrast shows more than different exercises of legislative
judgment,’ the Court concluded that the punishment was
unnecessarily severe in view of the purposes for which it was
imposed.
There are, then, four principles by which we may determine
whether a particular punishment is ‘cruel and unusual.’ The
primary principle, which I believe supplies the essential
predicate for the application of the others, is that a
punishment must not by its severity be degrading to human
dignity. The paradigm violation of this principle would be the
infliction of a torturous punishment of the type that the
Clause has always prohibited. Yet ‘(i)t is unlikely that any
State at this moment in history(,)’ . . . would pass a law
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providing for the infliction of such a punishment. Indeed, no
such punishment has ever been before this Court. The same
may be said of the other principles. It is unlikely that this
Court will confront a severe punishment that is obviously
inflicted in wholly arbitrary fashion; no State would engage in
a reign of blind terror. Nor is it likely that this Court will be
called upon to review a severe punishment that is clearly and
totally rejected throughout society; no legislature would be
able even to authorize the infliction of such a punishment.
Nor, finally, is it likely that this Court will have to consider a
severe punishment that is patently unnecessary; no State
today would inflict a severe punishment knowing that there
was no reason whatever for doing so. In short, we are
unlikely to have occasion to determine that a punishment is
fatally offensive under any one principle.
Since the Bill of Rights was adopted, this Court has
adjudged only three punishments to be within the prohibition
of the Clause. Each punishment, of course, was degrading to
human dignity, but of none could it be said conclusively that it
was fatally offensive under one or the other of the principles.
Rather, these ‘cruel and unusual punishments’ seriously
implicated several of the principles, and it was the application
of the principles in combination that supported the judgment.
That, indeed, is not surprising. The function of these
principles, after all, is simply to provide means by which a
court can determine whether a challenged punishment
comports with human dignity. They are, therefore,
interrelated, and in most cases it will be their convergence
that will justify the conclusion that a punishment is ‘cruel and
unusual.’ The test, then, will ordinarily be a cumulative one: If
a punishment is unusually severe, if there is a strong
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probability that it is inflicted arbitrarily, if it is substantially
rejected by contemporary society, and if there is no reason to
believe that it serves any penal purpose more effectively than
some less severe punishment, then the continued infliction of
that punishment violates the command of the Clause that the
State may not inflict inhuman and uncivilized punishments
upon those convicted of crimes.
III
The punishment challenged in these cases is death. Death, of
course, is a ‘traditional’ punishment, . . . one that ‘has been
employed throughout our history,’ . . . and its constitutional
background is accordingly an appropriate subject of inquiry.
There is, first, a textual consideration raised by the Bill of
Rights itself. The Fifth Amendment declares that if a
particular crime is punishable by death, a person charged
with that crime is entitled to certain procedural protections.
We can thus infer that the Framers recognized the existence
of what was then a common punishment. We cannot,
however, make the further inference that they intended to
exempt this particular punishment from the express
prohibition of the Cruel and Unusual Punishments Clause.
Nor is there any indication in the debates on the Clause that a
special exception was to be made for death. If anything, the
indication is to the contrary, for Livermore specifically
mentioned death as a candidate for future proscription under
the Clause. Finally, it does not advance analysis to insist that
the Framers did not believe that adoption of the Bill of Rights
would immediately prevent the infliction of the punishment of
death; neither did they believe that it would immediately
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prevent the infliction of other corporal punishments that,
although common at the time, . . . are now acknowledged to
be impermissible.
There is also the consideration that this Court has decided
three cases involving constitutional challenges to particular
methods of inflicting this punishment. . . . These three
decisions thus reveal that the Court, while ruling upon
various methods of inflicting death, has assumed in the past
that death was a constitutionally permissible punishment. Past
assumptions, however, are not sufficient to limit the scope of
our examination of this punishment today. The
constitutionality of death itself under the Cruel and Unusual
Punishments Clause is before this Court for the first time; we
cannot avoid the question by recalling past cases that never
directly considered it.
The question, then, is whether the deliberate infliction of
death is today consistent with the command of the Clause that
the State may not inflict punishments that do not comport
with human dignity. I will analyze the punishment of death in
terms of the principles set out above and the cumulative test
to which they lead: It is a denial of human dignity for the
State arbitrarily to subject a person to an unusually severe
punishment that society has indicated it does not regard as
acceptable, and that cannot be shown to serve any penal
purpose more effectively than a significantly less drastic
punishment. Under these principles and this test, death is
today a ‘cruel and unusual’ punishment.
Death is a unique punishment in the United States. In a
society that so strongly affirms the sanctity of life, not
surprisingly the common view is that death is the ultimate
sanction. This natural human feeling appears all about us.
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There has been no national debate about punishment, in
general or by imprisonment, comparable to the debate about
the punishment of death. No other punishment has been so
continuously restricted, . . . nor has any State yet abolished
prisons, as some have abolished this punishment. And those
States that still inflict death reserve it for the most heinous
crimes. Juries, of course, have always treated death cases
differently, as have governors exercising their commutation
powers. Criminal defendants are of the same view. ‘As all
practicing lawyers know, who have defended persons charged
with capital offenses, often the only goal possible is to avoid
the death penalty.’ Some legislatures have required particular
procedures, such as two-stage trials and automatic appeals,
applicable only in death cases. ‘It is the universal experience
in the administration of criminal justice that those charged
with capital offenses are granted special considerations.’ This
Court, too, almost always treats death cases as a class apart.
And the unfortunate effect of this punishment upon the
functioning of the judicial process is well known; no other
punishment has a similar effect.
The only explanation for the uniqueness of death is its
extreme severity. Death is today an unusually severe
punishment, unusual in its pain, in its finality, and in its
enormity. No other existing punishment is comparable to
death in terms of physical and mental suffering. Although our
information is not conclusive, it appears that there is no
method available that guarantees an immediate and painless
death. Since the discontinuance of flogging as a
constitutionally permissible punishment, . . . death remains as
the only punishment that may involve the conscious infliction
of physical pain. In addition, we know that mental pain is an
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inseparable part of our practice of punishing criminals by
death, for the prospect of pending execution exacts a frightful
toll during the inevitable long wait between the imposition of
sentence and the actual infliction of death. As the California
Supreme Court pointed out, ‘the process of carrying out a
verdict of death is often so degrading and brutalizing to the
human spirit as to constitute psychological torture.’ Indeed, as
Mr. Justice Frankfurther noted, ‘the onset of insanity while
awaiting execution of a death sentence is not a rare
phenomenon.’ The ‘fate of ever-increasing fear and distress’ to
which the expatriate is subjected . . . can only exist to a
greater degree for a person confined in prison awaiting death.
The unusual severity of death is manifested most clearly in
its finality and enormity. Death, in these respects, is in a class
by itself. Expatriation, for example, is a punishment that
‘destroys for the individual the political existence that was
centuries in the development(,)’ that ‘strips the citizen of his
status in the national and international political community
(,)’ and that puts ‘(h)is very existence’ in jeopardy.
Expatriation thus inherently entails ‘the total destruction of
the individual’s status in organized society. ‘In short, the
expatriate has lost the right to have rights.’ Yet, demonstrably,
expatriation is not ‘a fate worse than death.’ Although death,
like expatriation, destroys the individual’s ‘political existence’
and his ‘status in organized society,’ it does more, for, unlike
expatriation, death also destroys ‘(h)is very existence.’ There
is, too, at least the possibility that the expatriate will in the
future regain ‘the right to have rights.’ Death forecloses even
that possibility.
Death is truly an awesome punishment. The calculated
killing of a human being by the State involves, by its very
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nature, a denial of the executed person’s humanity. The
contrast with the plight of a person punished by
imprisonment is evident. An individual in prison does not lose
‘the right to have rights.’ A prisoner retains, for example, the
constitutional rights to the free exercise of religion, to be free
of cruel and unusual punishments, and to treatment as a
‘person’ for purposes of due process of law and the equal
protection of the laws. A prisoner remains a member of the
human family. Moreover, he retains the right of access to the
courts. His punishment is not irrevocable. Apart from the
common charge, grounded upon the recognition of human
fallibility, that the punishment of death must inevitably be
inflicted upon innocent men, we know that death has been the
lot of men whose convictions were unconstitutionally secured
in view of later, retroactively applied, holdings of this Court.
The punishment itself may have been unconstitutionally
inflicted, . . . yet the finality of death precludes relief. An
executed person has indeed ‘lost the right to have rights.’ As
one 19th century proponent of punishing criminals by death
declared, ‘When a man is hung, there is an end of our
relations with him. His execution is a way of saying, ‘You are
not fit for this world, take your chance elsewhere.“
In comparison to all other punishments today, then, the
deliberate extinguishment of human life by the State is
uniquely degrading to human dignity. I would not hesitate to
hold, on that ground alone, that death is today a ‘cruel and
unusual’ punishment, were it not that death is a punishment
of longstanding usage and acceptance in this country. I
therefore turn to the second principle-that the State may not
arbitrarily inflict an unusually severe punishment.
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The outstanding characteristic of our present practice of
punishing criminals by death is the infrequency with which
we resort to it. The evidence is conclusive that death is not the
ordinary punishment for any crime.
There has been a steady decline in the infliction of this
punishment in every decade since the 1930’s, the earliest
period for which accurate statistics are available. In the
1930’s, executions averaged 167 per year; in the 1940’s, the
average was 128; in the 1950’s, it was 72; and in the years
1960-1962, it was 48. There have been a total of 46 executions
since then, 36 of them in 1963-1964. Yet our population and
the number of capital crimes committed have increased
greatly over the past four decades. The contemporary rarity
of the infliction of this punishment is thus the end result of a
long-continued decline. . . . .
When a country of over 200 million people inflicts an
unusually severe punishment no more than 50 times a year,
the inference is strong that the punishment is not being
regularly and fairly applied. To dispel it would indeed require
a clear showing of nonarbitrary infliction.
Although there are no exact figures available, we know that
thousands of murders and rapes are committed annually in
States where death is an authorized punishment for those
crimes. However the rate of infliction is characterized–as
‘freakishly’ or ‘spectacularly’ rare, or simply as rare–it would
take the purest sophistry to deny that death is inflicted in only
a minute fraction of these cases. How much rarer, after all,
could the infliction of death be?
When the punishment of death is inflicted in a trivial
number of the cases in which it is legally available, the
conclusion is virtually inescapable that it is being inflicted
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arbitrarily. Indeed, it smacks of little more than a lottery
system. . . . .
When there is a strong probability that an unusually severe
and degrading punishment is being inflicted arbitrarily, we
may well expect that society will disapprove of its infliction. I
turn, therefore, to the third principle. An examination of the
history and present operation of the American practice of
punishing criminals by death reveals that this punishment has
been almost totally rejected by contemporary society.
. . . . From the beginning of our Nation, the punishment of
death has stirred acute public controversy. Although
pragmatic arguments for and against the punishment have
been frequently advanced, this longstanding and heated
controversy cannot be explained solely as the result of
differences over the practical wisdom of a particular
government policy. At bottom, the battle has been waged on
moral grounds. The country has debated whether a society for
which the dignity of the individual is the supreme value can,
without a fundamental inconsistency, follow the practice of
deliberately putting some of its members to death. In the
United States, as in other nations of the western world, ‘the
struggle about this punishment has been one between ancient
and deeply rooted beliefs in retribution, atonement or
vengeance on the one hand, and, on the other, beliefs in the
personal value and dignity of the common man that were born
of the democratic movement of the eighteenth century, as well
as beliefs in the scientific approach to an understanding of the
motive forces of human conduct, which are the result of the
growth of the sciences of behavior during the nineteenth and
twentieth centuries.’ It is this essentially moral conflict that
forms the backdrop for the past changes in and the present
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operation of our system of imposing death as a punishment
for crime.
Our practice of punishing criminals by death has changed
greatly over the years. One significant change has been in our
methods of inflicting death. Although this country never
embraced the more violent and repulsive methods employed
in England, we did for a long time rely almost exclusively
upon the gallows and the firing squad. Since the development
of the supposedly more humane methods of electrocution late
in the 19th century and lethal gas in the 20th, however,
hanging and shooting have virtually ceased. Our concern for
decency however, hanging and shooting have virtually
changes in the circumstances surrounding the execution itself.
No longer does our society countenance the spectacle of
public executions, once thought desirable as a deterrent to
criminal behavior by others. Today we reject public
executions as debasing and brutalizing to us all.
Also significant is the drastic decrease in the crimes for
which the punishment of death is actually inflicted. While
esoteric capital crimes remain on the books, since 1930
murder and rape have accounted for nearly 99% of the total
executions, and murder alone for about 87%. In addition, the
crime of capital murder has itself been limited. As the Court
noted in McGautha v. California, . . . there was in this country a
‘rebellion against the common-law rule imposing a mandatory
death sentence on all convicted murderers.’ Initially, that
rebellion resulted in legislative definitions that distinguished
between degrees of murder, retaining the mandatory death
sentence only for murder in the first degree. Yet ‘(t)his new
legislative criterion for isolating crimes appropriately
punishable by death soon proved as unsuccessful as the
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concept of ‘malice aforethought(,)“ the common-law means of
separating murder from manslaughter. Not only was the
distinction between degrees of murder confusing and
uncertain in practice, but even in clear cases of first-degree
murder juries continued to take the law into their own hands:
if they felt that death was an inappropriate punishment, ‘they
simply refused to convict of the capital offense.’ The
phenomenon of jury nullification thus remained to counteract
the rigors of mandatory death sentences. Bowing to reality,
‘legislatures did not try, as before, to refine further the
definition of capital homicides. Instead they adopted the
method of forthrightly granting juries the discretion which
they had been exercising in fact.’ Ibid. In consequence,
virtually all death sentences today are discretionarily imposed.
Finally, it is significant that nine States no longer inflict the
punishment of death under any circumstances, and five others
have restricted it to extremely rare crimes.
Thus, although ‘the death penalty has been employed
throughout our history,’ . . . in fact the history of this
punishment is one of successive restriction. What was once a
common punishment has become, in the context of a
continuing moral debate, increasingly rare. The evolution of
this punishment evidences, not that it is an inevitable part of
the American scene, but that it has proved progressively more
troublesome to the national conscience. The result of this
movement is our current system of administering the
punishment, under which death sentences are rarely imposed
and death is even more rarely inflicted. It is, of course, ‘We,
the People’ who are responsible for the rarity both of the
imposition and the carrying out of this punishment. Juries,
‘express(ing) the conscience of the community on the ultimate
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question of life or death,’ . . . have been able to bring
themselves to vote for death in a mere 100 or so cases among
the thousands tried each year where the punishment is
available. Governors, elected by and acting for us, have
regularly commuted a substantial number of those sentences.
And it is our society that insists upon due process of law to
the end that no person will be unjustly put to death, thus
ensuring that many more of those sentences will not be
carried out. In sum, we have made death a rare punishment
today.
The progressive decline in, and the current rarity of, the
infliction of death demonstrate that our society seriously
questions the appropriateness of this punishment today. The
States point out that many legislatures authorize death as the
punishment for certain crimes and that substantial segments
of the public, as reflected in opinion polls and referendum
votes, continue to support it. Yet the availability of this
punishment through statutory authorization, as well as the
polls and referenda, which amount simply to approval of that
authorization, simply underscores the extent to which our
society has in fact rejected this punishment. When an
unusually severe punishment is authorized for wide-scale
application but not, because of society’s refusal, inflicted save
in a few instances, the inference is compelling that there is a
deep-seated reluctance to inflict it. Indeed, the likelihood is
great that the punishment is tolerated only because of its
disuse. The objective indicator of society’s view of an
unusually severe punishment is what society does with it, and
today society will inflict death upon only a small sample of the
eligible criminals. Rejection could hardly be more complete
without becoming absolute. At the very least, I must conclude
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that contemporary society views this punishment with
substantial doubt.
The final principle to be considered is that an unusually
severe and degrading punishment may not be excessive in
view of the purposes for which it is inflicted. This principle,
too, is related to the others. When there is a strong probability
that the State is arbitrarily inflicting an unusually severe
punishment that is subject to grave societal doubts, it is likely
also that the punishment cannot be shown to be serving any
penal purpose that could not be served equally well by some
less severe punishment.
The States’ primary claim is that death is a necessary
punishment because it prevents the commission of capital
crimes more effectively than any less severe punishment. The
first part of this claim is that the infliction of death is
necessary to stop the individuals executed from committing
further crimes. The sufficient answer to this is that if a
criminal convicted of a capital crime poses a danger to society,
effective administration of the State’s pardon and parole laws
can delay or deny his release from prison, and techniques of
isolation can eliminate or minimize the danger while he
remains confined.
The more significant argument is that the threat of death
prevents the commission of capital crimes because it deters
potential criminals who would not be deterred by the threat of
imprisonment. The argument is not based upon evidence that
the threat of death is a superior deterrent. Indeed, as my
Brother MARSHALL establishes, the available evidence
uniformly indicates, although it does not conclusively prove,
that the threat of death has no greater deterrent effect than
the threat of imprisonment. The States argue, however, that
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they are entitled to rely upon common human experience, and
that experience, they say, supports the conclusion that death
must be a more effective deterrent than any less severe
punishment. Because people fear death the most, the
argument runs, the threat of death must be the greatest
deterrent.
It is important to focus upon the precise import of this
argument. It is not denied that many, and probably most,
capital crimes cannot be deterred by the threat of punishment.
Thus the argument can apply only to those who think
rationally about the commission of capital crimes. Particularly
is that true when the potential criminal, under this argument,
must not only consider the risk of punishment, but also
distinguish between two possible punishments. The concern,
then, is with a particular type of potential criminal, the
rational person who will commit a capital crime knowing that
the punishment is long-term imprisonment, which may well
be for the rest of his life, but will not commit the crime
knowing that the punishment is death. On the face of it, the
assumption that such persons exist is implausible.
In any event, this argument cannot be appraised in the
abstract. We are not presented with the theoretical question
whether under any imaginable circumstances the threat of
death might be a greater deterrent to the commission of
capital crimes than the threat of imprisonment. We are
concerned with the practice of punishing criminals by death
as it exists in the United States today. Proponents of this
argument necessarily admit that its validity depends upon the
existence of a system in which the punishment of death is
invariably and swiftly imposed. Our system, of course,
satisfies neither condition. A rational person contemplating a
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murder or rape is confronted, not with the certainty of a
speedy death, but with the slightest possibility that he will be
executed in the distant future. The risk of death is remote and
improbable; in contrast, the risk of long-term imprisonment is
near and great. In short, whatever the speculative validity of
the assumption that the threat of death is a superior deterrent,
there is no reason to believe that as currently administered the
punishment of death is necessary to deter the commission of
capital crimes. Whatever might be the case were all or
substantially all eligible criminals quickly put to death,
unverifiable possibilities are an insufficient basis upon which
to conclude that the threat of death today has any greater
deterrent efficacy than the threat of imprisonment.
There is, however, another aspect to the argument that the
punishment of death is necessary for the protection of society.
The infliction of death, the States urge, serves to manifest the
community’s outrage at the commission of the crime. It is,
they say, a concrete public expression of moral indignation
that inculcates respect for the law and helps assure a more
peaceful community. Moreover, we are told, not only does the
punishment of death exert this widespread moralizing
influence upon community values, it also satisfies the popular
demand for grievous condemnation of abhorrent crimes and
thus prevents disorder, lynching, and attempts by private
citizens to take the law into their own hands.
The question, however, is not whether death serves these
supposed purposes of punishment, but whether death serves
them more effectively than imprisonment. There is no
evidence whatever that utilization of imprisonment rather
than death encourages private blood feuds and other
disorders. Surely if there were such a danger, the execution of
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a handful of criminals each year would not prevent it. The
assertion that death alone is a sufficiently emphatic
denunciation for capital crimes suffers from the same defect.
If capital crimes require the punishment of death in order to
provide moral reinforcement for the basic values of the
community, those values can only be undermined when death
is so rarely inflicted upon the criminals who commit the
crimes. Furthermore, it is certainly doubtful that the infliction
of death by the State does in fact strengthen the community’s
moral code; if the deliberate extinguishment of human life has
any effect at all, it more likely tends to lower our respect for
life and brutalize our values. That, after all, is why we no
longer carry out public executions. In any event, this claim
simply means that one purpose of punishment is to indicate
social disapproval of crime. To serve that purpose our laws
distribute punishments according to the gravity of crimes and
punish more severely the crimes society regards as more
serious. That purpose cannot justify any particular
punishment as the upper limit of severity.
There is, then, no substantial reason to believe that the
punishment of death, as currently administered, is necessary
for the protection of society. The only other purpose
suggested, one that is independent of protection for society, is
retribution. Shortly stated, retribution in this context means
that criminals are put to death because they deserve it.
Although it is difficult to believe that any State today
wishes to proclaim adherence to ‘naked vengeance,’ . . . the
States claim, in reliance upon its statutory authorization, that
death is the only fit punishment for capital crimes and that
this retributive purpose justifies its infliction. In the past,
judged by its statutory authorization, death was considered
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the only fit punishment for the crime of forgery, for the first
federal criminal statute provided a mandatory death penalty
for that crime. Obviously, concepts of justice change; no
immutable moral order requires death for murderers and
rapists. The claim that death is a just punishment necessarily
refers to the existence of certain public beliefs. The claim
must be that for capital crimes death alone comports with
society’s notion of proper punishment. As administered today,
however, the punishment of death cannot be justified as a
necessary means of exacting retribution from criminals. When
the overwhelming number of criminals who commit capital
crimes go to prison, it cannot be concluded that death serves
the purpose of retribution more effectively than
imprisonment. The asserted public belief that murderers and
rapists deserve to die is flatly inconsistent with the execution
of a random few. As the history of the punishment of death in
this country shows, our society wishes to prevent crime; we
have no desire to kill criminals simply to get even with them.
In sum, the punishment of death is inconsistent with all four
principles: Death is an unusually severe and degrading
punishment; there is a strong probability that it is inflicted
arbitrarily; its rejection by contemporary society is virtually
total; and there is no reason to believe that it serves any penal
purpose more effectively than the less severe punishment of
imprisonment. The function of these principles is to enable a
court to determine whether a punishment comports with
human dignity. Death, quite simply, does not.
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IV
When this country was founded, memories of the Stuart
horrors were fresh and severe corporal punishments were
common. Death was not then a unique punishment. The
practice of punishing criminals by death, moreover, was
widespread and by and large acceptable to society. Indeed,
without developed prison systems, there was frequently no
workable alternative. Since that time successive restrictions,
imposed against the background of a continuing moral
controversy, have drastically curtailed the use of this
punishment. Today death is a uniquely and unusually severe
punishment. When examined by the principles applicable
under the Cruel and Unusual Punishments Clause, death
stands condemned as fatally offensive to human dignity. The
punishment of death is therefore ‘cruel and unusual,’ and the
States may no longer inflict it as a punishment for crimes.
Rather than kill an arbitrary handful of criminals each year,
the States will confine them in prison. ‘The state thereby
suffers nothing and loses no power. The purpose of
punishment is fulfilled, crime is repressed by penalties of just,
not tormenting, severity, its repetition is prevented, and hope
is given for the reformation of the criminal.’
I concur in the judgments of the Court.
[The concurrence of Justice STEWART is omitted.]
[The concurrence of Justice WHITE is omitted.]
Mr. Justice MARSHALL, concurring.
....
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III
Perhaps the most important principle in analyzing ‘cruel and
unusual’ punishment questions is one that is reiterated again
and again in the prior opinions of the Court: i.e., the cruel and
unusual language ‘must draw its meaning from the evolving
standards of decency that mark the progress of a maturing
society.’ Thus, a penalty that was permissible at one time in
our Nation’s history is not necessarily permissible today.
The fact, therefore, that the Court, or individual Justices,
may have in the past expressed an opinion that the death
penalty is constitutional is not now binding on us. . . . There is
no holding directly in point, and the very nature of the Eighth
Amendment would dictate that unless a very recent decision
existed, stare decisis would bow to changing values, and the
question of the constitutionality of capital punishment at a
given moment in history would remain open.
Faced with an open question, we must establish our
standards for decision. The decisions discussed in the
previous section imply that a punishment may be deemed
cruel and unusual for any one of four distinct reasons.
First, there are certain punishments that inherently involve
so much physical pain and suffering that civilized people
cannot tolerate them-e.g., use of the rack, the thumbscrew, or
other mont, . . .. Regardless of public sentiment with respect
to imposition of one of these punishments in a particular case
or at any one moment in history, the Constitution prohibits it.
These are punishments that have been barred since the
adoption of the Bill of Rights.
Second, there are punishments that are unusual, signifying
that they were previously unknown as penalties for a given
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offense. If these punishments are intended to serve a humane
purpose, they may be constitutionally permissible. [. . .]
Third, a penalty may be cruel and unusual because it is
excessive and serves no valid legislative purpose. The
decisions previously discussed are replete with assertions that
one of the primary functions of the cruel and unusual
punishments clause is to prevent excessive or unnecessary
penalties, . . . these punishments are unconstitutional even
though popular sentiment may favor them. [. . .] [T]his Court
has steadfastly maintained that a penalty is unconstitutional
whenever it is unnecessarily harsh or cruel. This is what the
Founders of this country intended; this is what their fellow
citizens believed the Eighth Amendment provided; and this
was the basis for our decision in Robinson v. California, supra,
for the plurality opinion by Chief Justice Warren in Trop v.
Dulles, supra, and for the Court’s decision in Weems v. United
States, supra. It should also be noted that the ‘cruel and
unusual’ language of the Eighth Amendment immediately
follows language that prohibits excessive bail and excessive
fines. The entire thrust of the Eighth Amendment is, in short,
against ‘that which is excessive.’
Fourth, where a punishment is not excessive and serves a
valid legislative purpose, it still may be invalid if popular
sentiment abhors it. For example, if the evidence clearly
demonstrated that capital punishment served valid legislative
purposes, such punishment would, nevertheless, be
unconstitutional if citizens found it to be morally
unacceptable. A general abhorrence on the part of the public
would, in effect, equate a modern punishment with those
barred since the adoption of the Eighth Amendment. There
are no prior cases in this Court striking down a penalty on
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this ground, but the very notion of changing values requires
that we recognize its existence.
It is immediately obvious, then, that since capital
punishment is not a recent phenomenon, if it violates the
Constitution, it does so because it is excessive or unnecessary,
or because it is abhorrent to currently existing moral values.
We must proceed to the history of capital punishment in the
United States.
IV
Capital punishment has been used to penalize various forms
of conduct by members of society since the beginnings of
civilization. Its precise origins are difficult to perceive, but
there is some evidence that its roots lie in violent retaliation
by members of a tribe or group, or by the tribe or group itself,
against persons committing hostile acts toward group
members. Thus, infliction of death as a penalty or
objectionable conduct appears to have its beginnings in
private vengeance.
As individuals gradually ceded their personal prerogatives
to a sovereign power, the sovereign accepted the authority to
punish wrongdoing as part of its ‘divine right’ to rule.
Individual vengeance gave way to the vengeance of the state,
and capital punishment became a public function. Capital
punishment worked its way into the laws of various countries,
and was inflicted in a variety of macabre and horrific ways.
It was during the reign of Henry II (1154-1189) that
English law first recognized that crime was more than a
personal affair between the victim and the perpetrator.
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[Justice Marshall provides a brief history of the expansion
of capital crimes in England from the 16th to 19th centuries.
He then turns to the history of capital crimes in the United
States, noting that while there were generally far fewer capital
offenses than in England, executions were still commonplace.
Justice Marshall also highlights how opposition to capital
punishment is as old as the United States itself. Abolitionists
were largely successful in eliminating mandatory capital
punishment, with some states abolishing the practice outright
by the early 1900s. However, the abolitionist movement was
set back by World War I and never fully recovered the
momentum they had coming into the 1900s.]
At the present time, 41 States, the District of Columbia,
and other federal jurisdictions authorize the death penalty for
at least one crime. It would be fruitless to attempt here to
categorize the approach to capital punishment taken by the
various States. It is sufficient to note that murder is the crime
most often punished by death, followed by kidnapping and
treason. Rape is a capital offense in 16 States and the federal
system.
The foregoing history demonstrates that capital punishment
was carried from Europe to America but, once here, was
tempered considerably. At times in our history, strong
abolitionist movements have existed. But, they have never
been completely successful, as no more than one-quarter of
the States of the Union have, at any one time, abolished the
death penalty. They have had partial success, however,
especially in reducing the number of capital crimes, replacing
mandatory death sentences with jury discretion, and
developing more humane methods of conducting executions.
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This is where our historical foray leads. The question now
to be faced is whether American society has reached a point
where abolition is not dependent on a successful grass roots
movement in particular jurisdictions, but is demanded by the
Eighth Amendment. To answer this question, we must first
examine whether or not the death penalty is today tantamount
to excessive punishment.
V
In order to assess whether or not death is an excessive or
unnecessary penalty, it is necessary to consider the reasons
why a legislature might select it as punishment for one or
more offenses, and examine whether less severe penalties
would satisfy the legitimate legislative wants as well as capital
punishment. If they would, then the death penalty is
unnecessary cruelty, and, therefore, unconstitutional.
There are six purposes conceivably served by capital
punishment: retribution, deterrence, prevention of repetitive
criminal acts, encouragement of guilty pleas and confessions,
eugenics, and economy. These are considered seriatim below.
A. The concept of retribution is one of the most
misunderstood in all of our criminal jurisprudence. The
principal source of confusion derives from the fact that, in
dealing with the concept, most people confuse the question
‘why do men in fact punish?’ with the question ‘what justifies
men in punishing?’ Men may punish for any number of
reasons, but the one reason that punishment is morally good
or morally justifiable is that someone has broken the law.
Thus, it can correctly be said that breaking the law is the sine
qua non of punishment, or, in other words, that we only
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tolerate punishment as it is imposed on one who deviates from
the norm established by the criminal law.
The fact that the State may seek retribution against those
who have broken its laws does not mean that retribution may
then become the State’s sole end in punishing. Our
jurisprudence has always accepted deterrence in general,
deterrence of individual recidivism, isolation of dangerous
persons, and rehabilitation as proper goals of punishment.
Retaliation, vengeance, and retribution have been roundly
condemned as intolerable aspirations for a government in a
free society.
Punishment as retribution has been condemned by scholars
for centuries, and the Eighth Amendment itself was adopted
to prevent punishment from becoming synonymous with
vengeance.
. . . . It is plain that the view of the Weems Court was that
punishment for the sake of retribution was not permissible
under the Eighth Amendment. This is the only view that the
Court could have taken if the ‘cruel and unusual’ language
were to be given any meaning. Retribution surely underlies
the imposition of some punishment on one who commits a
criminal act. But, the fact that some punishment may be
imposed does not mean that any punishment is permissible. If
retribution alone could serve as a justification for any
particular penalty, then all penalties selected by the legislature
would be definition be acceptable means for designating
society’s moral approbation of a particular act. The ‘cruel and
unusual’ language would thus be read out of the Constitution
and the fears of Patrick Henry and the other Founding
Fathers would become realities.
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To preserve the integrity of the Eighth Amendment, the
Court has consistently denigrated retribution as a permissible
goal of punishment. It is undoubtedly correct that there is a
demand for vengeance on the part of many persons in a
community against one who is convicted of a particularly
offensive act. At times a cry is heard that morality requires
vengeance to evidence society’s abhorrence of the act. But the
Eighth Amendment is our insulation from our baser selves.
The ‘cruel and unusual’ language limits the avenues through
which vengeance can be channeled. Were this not so, the
language would be empty and a return to the rack and other
tortures would be possible in a given case.
Mr. Justice Story wrote that the Eighth Amendment’s
limitation on punishment ‘would seem to be wholly
unnecessary in a free government, since it is scarcely possible
that any department of such a government should authorize
or justify such atrocious conduct.
I would reach an opposite conclusion—that only in a free
society would men recognize their inherent weaknesses and
seek to compensate for them by means of a Constitution.
The history of the Eighth Amendment supports only the
conclusion that retribution for its own sake is improper.
B. The most hotly contested issue regarding capital
punishment is whether it is better than life imprisonment as a
deterrent to crime.
While the contrary position has been argued, it is my firm
opinion that the death penalty is a more severe sanction than
life imprisonment. Admittedly, there are some persons who
would rather die than languish in prison for a lifetime. But,
whether or not they should be able to choose death as an
alternative is a far different question from that presented here
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—i.e., whether the State can impose death as a punishment.
Death is irrevocable; life imprisonment is not. Death, of
course, makes rehabilitation impossible; life imprisonment
does not. In short, death has always been viewed as the
ultimate sanction, and it seems perfectly reasonable to
continue to view it as such.
It must be kept in mind, then, that the question to be
considered is not simply whether capital punishment is a
deterrent, but whether it is a better deterrent than life
imprisonment.
There is no more complex problem than determining the
deterrent efficacy of the death penalty. ‘Capital punishment
has obviously failed as a deterrent when a murder is
committed. We can number its failures. But we cannot
number its successes. No one can ever know how many
people have refrained from murder because of the fear of
being hanged.’ This is the nub of the problem and it is
exacerbated by the paucity of useful data. The United States
is more fortunate than most countries, however, in that it has
what are generally considered to be the world’s most reliable
statistics.
[Marshall reviews the obvious hypotheses about deterrence
and reviews the state of the empirical evidence.]
In sum, the only support for the theory that capital
punishment is an effective deterrent is found in the
hypotheses with which we began and the occasional stories
about a specific individual being deterred from doing a
contemplated criminal act. These claims of specific deterrence
are often spurious, however, and may be more than
counterbalanced by the tendency of capital punishment to
incite certain crimes.
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....
Despite the fact that abolitionists have not proved nondeterrence beyond a reasonable doubt, they have succeeded
in showing by clear and convincing evidence that capital
punishment is not necessary as a deterrent to crime in our
society. This is all that they must do. We would shirk our
judicial responsibilities if we failed to accept the presently
existing statistics and demanded more proof. It may be that
we now possess all the proof that anyone could ever hope to
assemble on the subject. But, even if further proof were to be
forthcoming, I believe there is more than enough evidence
presently available for a decision in this case.
....
In light of the massive amount of evidence before us, I see
no alternative but to conclude that capital punishment cannot
be justified on the basis of its deterrent effect.
C. Much of what must be said about the death penalty as a
device to prevent recidivism is obvious—if a murderer is
executed, he cannot possibly commit another offense. The fact
is, however, that murderers are extremely unlikely to commit
other crimes either in prison or upon their release. For the
most part, they are first offenders, and when released from
prison they are known to become model citizens.
Furthermore, most persons who commit capital crimes are not
executed. With respect to those who are sentenced to die, it is
critical to note that the jury is never asked to determine
whether they are likely to be recidivists. In light of these facts,
if capital punishment were justified purely on the basis of
preventing recidivism, it would have to be considered to be
excessive; no general need to obliterate all capital offenders
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could have been demonstrated, nor any specific need in
individual cases.
D. The three final purposes which may underlie utilization
of a capital sanction-encouraging guilty pleas and confessions,
eugenics, and reducing state expenditures—may be dealt with
quickly. If the death penalty is used to encourage guilty pleas
and thus to deter suspects from exercising their rights under
the Sixth Amendment to jury trials, it is unconstitutional. Its
elimination would do little to impair the State’s bargaining
position in criminal cases, since life imprisonment remains a
severe sanction which can be used as leverage for bargaining
for pleas or confessions in exchange either for charges of
lesser offenses or recommendations of leniency.
Moreover, to the extent that capital punishment is used to
encourage confessions and guilty pleas, it is not being used for
punishment purposes. A State that justifies capital
punishment on its utility as part of the conviction process
could not profess to rely on capital punishment as a deterrent.
Such a State’s system would be structured with twin goals
only: obtaining guilty pleas and confessions and imposing
imprisonment as the maximum sanction. Since life
imprisonment is sufficient for bargaining purposes, the death
penalty is excessive if used for the same purposes.
In light of the previous discussion on deterrence, any
suggestions concerning the eugenic benefits of capital
punishment are obviously meritless. As I pointed out above,
there is not even any attempt made to discover which capital
offenders are likely to be recidivists, let alone which are
positively incurable. No test or procedure presently exists by
which incurables can be screened from those who would
benefit from treatment. On the one hand, due process would
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seem to require that we have some procedure to demonstrate
incurability before execution; and, on the other hand, equal
protection would then seemingly require that all incurables be
executed. . .. In addition, the ‘cruel and unusual’ language
would require that life imprisonment, treatment and
sterilization be inadequate for eugenic purposes. More
importantly, this Nation has never formally professed eugenic
goals, and the history of the world does not look kindly on
them. If eugenics is one of our purposes, then the legislatures
should say so forthrightly and design procedures to serve this
goal. Until such time, I can only conclude, as has virtually
everyone else who has looked at the problem,130 that capital
punishment cannot be defended on the basis of any eugenic
purposes.
As for the argument that it is cheaper to execute a capital
offender than to imprison him for life, even assuming that
such an argument, if true, would support a capital sanction, it
is simply incorrect. A disproportionate amount of money
spent on prisons is attributable to death row. Condemned men
are not productive members of the prison community,
although they could be, and executions are expensive.
Appeals are often automatic, and courts admittedly spend
more time with death cases.
At trial, the selection of jurors is likely to become a costly,
time-consuming problem in a capital case, and defense
counsel will reasonably exhaust every possible means to save
his client from execution, no matter how long the trial takes.
During the period between conviction and execution, there
are an inordinate number of collateral attacks on the
conviction and attempts to obtain executive clemency, all of
which exhaust the time, money, and effort of the State. There
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are also continual assertions that the condemned prisoner has
gone insane. Because there is a formally established policy of
not executing insane persons, great sums of money may be
spent on detecting and curing mental illness in order to
perform the execution. Since no one wants the responsibility
for the execution, the condemned man is likely to be passed
back and forth from doctors to custodial officials to courts like
a ping-pong ball. The entire process is very costly.
When all is said and done, there can be no doubt that it
costs more to execute a man than to keep him in prison for
life.
E. There is but one conclusion that can be drawn from all
of this-i.e., the death penalty is an excessive and unnecessary
punishment that violates the Eighth Amendment. The
statistical evidence is not convincing beyond all doubt, but it
is persuasive. It is not improper at this point to take judicial
notice of the fact that for more than 200 years men have
labored to demonstrate that capital punishment serves no
purpose that life imprisonment could not serve equally well.
And they have done so with great success. Little, if any,
evidence has been adduced to prove the contrary. The point
has now been reached at which deference to the legislatures is
tantamount to abdication of our judicial roles as factfinders,
judges, and ultimate arbiters of the Constitution. We know
that at some point the presumption of constitutionality
accorded legislative acts gives way to a realistic assessment of
those acts. This point comes when there is sufficient evidence
available so that judges can determine, not whether the
legislature acted wisely, but whether it had any rational basis
whatsoever for acting. We have this evidence before us now.
There is no rational basis for concluding that capital
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punishment is not excessive. It therefore violates the Eighth
Amendment.
VI
In addition, even if capital punishment is not excessive, it
nonetheless violates the Eighth Amendment because it is
morally unacceptable to the people of the United States at this
time in their history.
In judging whether or not a given penalty is morally
acceptable, most courts have said that the punishment is valid
unless ‘it shocks the conscience and sense of justice of the
people.’
[Justice Marshall explains that the details of the death
penalty are generally unknown to the public. It particular, he
focuses on how its discriminatory application against
minorities and the poor would likely shock the conscience of
the general public if it was well known.]
Assuming knowledge of all the facts presently available
regarding capital punishment, the average citizen would, in
my opinion, find it shocking to his conscience and sense of
justice. For this reason alone capital punishment cannot
stand.
VII
[. . .]
In striking down capital punishment, this Court does not
malign our system of government. On the contrary, it pays
homage to it. Only in a free society could right triumph in
difficult times, and could civilization record its magnificent
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advancement. In recognizing the humanity of our fellow
beings, we pay ourselves the highest tribute. We achieve ‘a
major milestone in the long road up from barbarism’ and join
the approximately 70 other jurisdictions in the world which
celebrate their regard for civilization and humanity by
shunning capital punishment.
I concur in the judgments of the Court.
Mr. Chief Justice BURGER, with whom Mr. Justice
BLACKMUN, Mr. Justice POWELL, and Mr.
Justice REHNQUIST join, dissenting.
[NOTE: only Part IV of Chief Justice Burger’s dissent is
provided here.]
IV
Capital punishment has also been attacked as violative of the
Eighth Amendment on the ground that it is not needed to
achieve legitimate penal aims and is thus ‘unnecessarily cruel.’
As a pure policy matter, this approach has much to
recommend it, but it seeks to give a dimension to the Eighth
Amendment that it was never intended to have and promotes
a line of inquiry that this Court has never before pursued.
The Eighth Amendment, as I have noted, was included in
the Bill of Rights to guard against the use of torturous and
inhuman punishments, not those of limited efficacy. One of
the few to speak out against the adoption of the Eighth
Amendment asserted that it is often necessary to use cruel
punishments to deter crimes. But among those favoring the
Amendment, no sentiment was expressed that a punishment
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of extreme cruelty could ever be justified by expediency. The
dominant theme of the Eighth Amendment debates was that
the ends of the criminal laws cannot justify the use of
measures of extreme cruelty to achieve them.
The apparent seed of the ‘unnecessary cruelty’ argument is
the following language, quoted earlier, found in Wilkerson v.
Utah, supra:
‘Difficulty would attend the effort to define with
exactness the extent of the constitutional provision which
provides that cruel and unusual punishments shall not
be inflicted; but it is safe to affirm that punishments of
torture . . . and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the
Constitution.’
To lift the italicized phrase from the context of the Wilkerson
opinion and now view it as a mandate for assessing the value
of punishments in achieving the aims of penology is a gross
distortion; nowhere are such aims even mentioned in the
Wilkerson opinion. The only fair reading of this phrase is that
punishments similar to torture in their extreme cruelty are
prohibited by the Eighth Amendment. In Louisiana ex rel.
Francis v. Resweber . . . the Court made reference to the Eighth
Amendment’s prohibition against the infliction of
‘unnecessary pain’ in carrying out an execution. The context
makes abundantly clear that the Court was disapproving the
wanton infliction of physical pain, and once again not
advising pragmatic analysis of punishments approved by
legislatures.
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Apart from these isolated uses of the word ‘unnecessary,’
nothing in the cases suggests that it is for the courts to make a
determination of the efficacy of punishments. The decision in
Weems v. United States, supra, is not to the contrary. In Weems
the Court held that for the crime of falsifying public
documents, the punishment imposed under the Philippine
Code of 15 years’ imprisonment at hard labor under shackles,
followed by perpetual surveillance, loss of voting rights, loss
of the right to hold public office, and loss of right to change
domicile freely, was violative of the Eighth Amendment. The
case is generally regarded as holding that a punishment may
be excessively cruel within the meaning of the Eighth
Amendment because it is grossly out of proportion to the
severity of the crime; some view the decision of the Court
primarily as a reaction to the mode of the punishment itself.
Under any characterization of the holding, it is readily
apparent that the decision grew out of the Court’s
overwhelming abhorrence of the imposition of the particular
penalty for the particular crime; it was making an essentially
moral judgment, not a dispassionate assessment of the need
for the penalty. The Court specifically disclaimed ‘the right to
assert a judgment against that of the legislature of the
expediency of the laws . . ..’ Thus, apart from the fact that the
Court in Weems concerned itself with the crime committed as
well as the punishment imposed, the case marks no departure
from the largely unarticulable standard of extreme cruelty.
However intractable that standard may be, that is what the
Eighth Amendment is all about. The constitutional provision
is not addressed to social utility and does not command that
enlightened principles of penology always be followed.
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By pursuing the necessity approach, it becomes even more
apparent that it involves matters outside the purview of the
Eighth Amendment. Two of the several aims of punishment
are generally associated with capital punishment-retribution
and deterrence. It is argued that retribution can be discounted
because that, after all, is what the Eighth Amendment seeks to
eliminate. There is no authority suggesting that the Eighth
Amendment was intended to purge the law of its retributive
elements, and the Court has consistently assumed that
retribution is a legitimate dimension of the punishment of
crimes. Furthermore, responsible legal thinkers of widely
varying persuasions have debated the sociological and
philosophical aspects of the retribution question for
generations, neither side being able to convince the other. It
would be reading a great deal into the Eighth Amendment to
hold that the punishments authorized by legislatures cannot
constitutionally reflect a retributive purpose.
The less esoteric but no less controversial question is
whether the death penalty acts as a superior deterrent. Those
favoring abolition find no evidence that it does. Those
favoring retention start from the intuitive notion that capital
punishment should act as the most effective deterrent and
note that there is no convincing evidence that it does not.
Escape from this empirical stalemate is sought by placing the
burden of proof on the States and concluding that they have
failed to demonstrate that capital punishment is a more
effective deterrent than life imprisonment. Numerous
justifications have been advanced for shifting the burden, and
they are not without their rhetorical appeal. However, these
arguments are not descended from established constitutional
principles, but are born of the urge to bypass an unresolved
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factual question. Comparative deterrence is not a matter that
lends itself to precise measurement; to shift the burden to the
States is to provide an illusory solution to an enormously
complex problem. If it were proper to put the States to the
test of demonstrating the deterrent value of capital
punishment, we could just as well ask them to prove the need
for life imprisonment or any other punishment. Yet I know of
no convincing evidence that life imprisonment is a more
effective deterrent than 20 years’ imprisonment, or even that a
$10 parking ticket is a more effective deterrent than a $5
parking ticket. In fact, there are some who go so far as to
challenge the notion that any punishments deter crime. If the
States are unable to adduce convincing proof rebutting such
assertions, does it then follow that all punishments are suspect
as being ‘cruel and unusual’ within the meaning of the
Constitution? On the contrary, I submit that the questions
raised by the necessity approach are beyond the pale of
judicial inquiry under the Eighth Amendment.
[. . .]
[The dissent of Justice Blackmun is omitted.]
Mr. Justice POWELL, with whom THE CHIEF
JUSTICE, Mr. Justice BLACKMUN, and Mr.
Justice REHNQUIST join, dissenting.
[NOTE: Only Part VI of the dissent is provided
here.]
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VI
Petitioner in Branch v. Texas, and to a lesser extent the
petitioners in the other cases before us today, urge that capital
punishment is cruel and unusual because it no longer serves
any rational legislative interests. Before turning to consider
whether any of the traditional aims of punishment justify the
death penalty, I should make clear the context in which I
approach this aspect of the cases.
First, I find no support-in the language of the Constitution,
in its history, or in the cases arising under it-for the view that
this Court may invalidate a category of penalties because we
deem less severe penalties adequate to serve the ends of
penology. While the cases affirm our authority to prohibit
punishments that are cruelly inhumane . . . and punishments
that are cruelly excessive in that they are disproportionate to
particular crimes . . . the precedents of this Court afford no
basis for striking down a particular form of punishment
because we may be persuaded that means less stringent would
be equally efficacious.
Secondly, if we were free to question the justifications for
the use of capital punishment, a heavy burden would rest on
those who attack the legislatures’ judgments to prove the lack
of rational justifications. This Court has long held that
legislative decisions in this area, which lie within the special
competency of that branch, are entitled to a presumption of
validity.
I come now to consider, subject to the reservations above
expressed, the two justifications most often cited for the
retention of capital punishment. The concept of retributionthough popular for centuries-is now criticized as unworthy of
a civilized people. Yet this Court has acknowledged the
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existence of a retributive element in criminal sanctions and
has never heretofore found it impermissible. In Williams v. New
York . . . Mr. Justice Black stated that, ‘Retribution is no
longer the dominant objective of the criminal law.
Reformation and rehabilitation of offenders have become
important goals of criminal jurisprudence.’
It is clear, however, that the Court did not reject retribution
altogether. The record in that case indicated that one of the
reasons why the trial judge imposed the death penalty was his
sense of revulsion at the ‘shocking details of the crime.’
Although his motivation was clearly retributive, the Court
upheld the trial judge’s sentence. Similarly, Mr. Justice
Marshall noted in his plurality opinion in Powell v. Texas . . .
that this Court ‘has never held that anything in the
Constitution requires that penal sanctions be designed solely
to achieve therapeutic or rehabilitative effects.’
While retribution alone may seem an unworthy justification
in a moral sense, its utility in a system of criminal justice
requiring public support has long been recognized. Lord
Justice Denning, now Master of the Rolls of the Court of
Appeal in England, testified on this subject before the British
Royal Commission on Capital Punishment:
‘Many are inclined to test the efficacy of punishment
solely by its value as a deterrent: but this is too narrow a
view. Punishment is the way in which society expresses
its denunciation of wrong doing; and, in order to
maintain respect for law, it is essential that the
punishment inflicted for grave crimes should adequately
reflect the revulsion felt by the great majority of citizens
for them. It is a mistake to consider the objects of
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punishment as being deterrent or reformative or
preventive and nothing else. If this were so, we should not
send to prison a man who was guilty of motor
manslaughter, but only disqualify him from driving; but
would public opinion be content with this? The truth is
that some crimes are so outrageous that society insists
on adequate punishment, because the wrong-doer deserves
it, irrespective of whether it is a deterrent or not.’
The view expressed by Lord Denning was cited approvingly
in the Royal Commission’s Report, recognizing ‘a strong and
widespread demand for retribution.’ Mr. Justice STEWART
makes much the same point in his opinion today when he
concludes that expression of man’s retributive instincts in the
sentencing process ‘serves an important purpose in promoting
the stability of a society governed by law.’ The view,
moreover, is not without respectable support in the
jurisprudential literature in this country, despite a substantial
body of opinion to the contrary. And it is conceded on all
sides that, not infrequently, cases arise that are so shocking or
offensive that the public demands the ultimate penalty for the
transgressor.
Deterrence is a more appealing justification, although
opinions again differ widely. Indeed, the deterrence issue lies
at the heart of much of the debate between the abolitionists
and retentionists. Statistical studies based primarily on trends
in States that have abolished the penalty, tend to support the
view that the death penalty has not been proved to be a
superior deterrent. Some dispute the validity of this
conclusion, pointing out that the studies do not show that the
death penalty has no deterrent effect on any categories of
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crimes. On the basis of available, I find myself in agreement
available, I find myself in a agreement with the conclusions
drawn by the Royal Commission following its exhaustive
study of this issue:
‘The general conclusion which we reach, after careful
review of all the evidence we have been able to obtain as to
the deterrent effect of capital punishment, may be stated
as follows. Prima facie the penalty of death is likely to
have a stronger effect as a deterrent to normal human
beings than any other form of punishment, and there is
some evidence (though no convincing statistical evidence)
that this is in fact so. But this effect does not operate
universally or uniformly, not operate universally or
uniformly, and there are many offenders on whom it is
limited and may often be negligible. It is accordingly
important to view this question in a just perspective and
not base a penal policy in relation to murder on
exaggerated estimates of the uniquely deterrent force of
the death penalty.’
Only recently this Court was called on to consider the
deterrence argument in relation to punishment by fines for
public drunkenness. The Court was unwilling to strike down
the Texas statute on grounds that it lacked a rational
foundation. What Mr. Justice Marshall said there would
seem to have equal applicability in this case:
‘The long-standing and still raging debate over the
validity of the deterrence justification for penal sanctions
has not reached any sufficiently clear conclusions to
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permit it to be said that such sanctions are ineffective in
any particular context or for any particular group of
people who are able to appreciate the consequences of
their acts. . . .’
As I noted at the outset of this section, legislative judgments
as to the efficacy of particular punishments are presumptively
rational and may not be struck down under the Eighth
Amendment because this Court may think that some
alternative sanction would be more appropriate. Even if such
judgments were within the judicial prerogative, petitioners
have failed to show that there exist no justifications for the
legislative enactments challenged in these cases. While the
evidence and arguments advanced by petitioners might have
proved profoundly persuasive if addressed to a legislative
body, they do not approach the showing traditionally required
before a court declares that the legislature has acted
irrationally.
[The dissent of Justice REHNQUIST, with whom
THE CHIEF JUSTICE, Justice BLACKMUN,
and Justice POWELL join, is omitted.]
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Meeting 4: Law and Economics
Suppose that we adopt the utilitarian model and decide that,
generally, we want to create laws that produce “the greatest
good for the greatest number” or that produce the best result
considering costs and benefits. Once we are committed to
evaluating the consequences of our legal regime, we are in the
business of predicting the future. Economics is, in part, about
predicting the behavior of masses of people in response to
incentives. It seems natural, then, that we might turn to this
field for help in crafting law.
If we are to predict how society will unfold, we will need a
model of human behavior. We want to know how a change in
some social condition will cause human beings in our society
to respond. Modeling human behavior is, to put it mildly, a
hard problem. But for certain domains of human interaction
and with large enough groups in the right context, a very
simple model might produce useful, if incomplete, answers.
The Rational Actor Model and Rational Choice Theory
The Rational Actor Model models humans as preferencebearing entities who (a) seek to maximize the satisfaction of
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those preferences and (b) do so coherently. We can add more
to this definition, assuming, for example, that the preferences
are self-interested. But further elaboration is unnecessary at
this point.
A rational actor presented with two flavors of ice cream
each worth more to her than the money in her pocket will
trade the money for a cone of the flavor she values most. We
further assume that she can compare any two options,
whether ice cream flavors, movies, or anything else. This
means that her preferences are complete. Another assumption
of the theory is that if our rational actor prefers chocolate
over strawberry and strawberry over vanilla, then she must
also prefer chocolate over vanilla. In other words, her
preferences are transitive.
Rational choice theory identifies larger scale social and
economic effects with the sum of individual actions taken by
rational actors. That’s our model. What will happen if we pass
a law taxing high residential rental prices? Just figure out
how a rational cost-benefit balancer would respond to the tax
and extrapolate those effects to the larger economy. Such
modeling can vary from back-of-the-envelope guesswork
(general talk about incentives and rationality that can often
appear in legal arguments) to sophisticated modeling based on
exhaustively gathered data.
The effect of the rational actor assumptions is that we can,
to some degree, predict the actor’s response to incentives
without actually being the actor. We know she will perform a
rational cost-benefit calculation when deciding how to act.
And so if we make the costs of something higher, she is more
likely to avoid it. If we increase the benefits of a choice, she is
more likely to make it. The deterrence theory of punishment
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in criminal law is based on the idea that we can make interpersonal predictions in this way: Almost everyone prefers
freedom to imprisonment, and so making imprisonment more
likely and lengthier decreases the net benefit of a behavior we
wish to criminalize. So too would increasing the enforcement
effort, making imprisonment more likely. If we were
committed to a pure deterrence theory, we would need to
gather data to determine the structure of costs people in our
society assign to various lengths of imprisonment in order to
calibrate sentences.
The last example added something: deterrence as a theory
of what we wanted to accomplish together. Applying the
rational actor model and rational choice theory to make
predictions about consequences is just a methodology not a
theory of the good. It is not inherently normative. A theory is
normative if it purports to tell us what we should do. In
contrast, a descriptive theory purports to tell us how things
are, not what judgments we should make them.
If we are to use the rational actor concept to say something
normative, such as whether a law is desirable, we need to
develop some criteria for good and bad. All such criteria start
as bare definitions and become normative when we attach
judgment to them. So let’s start with some definitions.
Efficiency
Suppose we experience a change in the state of the world
from state A to state B. Perhaps that change is only that
someone sold his car to another person. We say this change is
efficient if it improves the satisfaction of preferences within the
group we are studying. This notion of “improves” is vague. So
let’s be a little more specific.
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A change is Pareto efficient if someone in the group is made
better off by the change and no one is made worse off. That is,
there must be people who prefer the change and no one who
prefers the older state.
Let’s take our car example. Suppose we have a voluntary
sale of a car. The buyer prefers the car to the money he must
pay to get it. The seller prefers the money the buyer will give
her over the car. As between the two of them, this transaction
is Pareto efficient. Both are made better off in the sense that
their preferences are better satisfied after the transaction has
occurred. Neither is made worse off. If we look more broadly
at the society of which our buyer and seller are members, this
transaction still might be Pareto efficient. If no one else is
affected by the transaction, then no one else is made worse off
by the decision. And so we have two members of the society
who are better off and no one who is worse off. That’s Pareto
efficiency.
If one of the two did not prefer the transaction, it would not
be Pareto efficient. Just think of the cartoon example below.
Even though there’s a big heart, symbolizing a lot of love for
the change on the part of one person, there’s a thumbs down
from the other. We can’t have any thumbs down in a Pareto
efficient transaction.
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Contract, in general, requires voluntary offers and
acceptances. If we assume uncoerced, rational actors, then
valid contracts would appear to be Pareto efficient as between
the parties. Contracts that have effects on people not parties
to them (consider a murder for hire contract) may well not be.
We will take that situation up a bit later.
Pareto efficiency is far too demanding a criterion for legal
regulation. All rules will create winners and losers. That is,
they will have distributive consequences. If we required that all
laws be Pareto efficient, it is difficult to imagine we could
have any laws. There is another notion of efficiency, however,
that may fit the bill.
A change in the state of the world is Kaldor-Hicks efficient if
those who are made better off by the change could compensate
those who are made worse off and still come out ahead. If
such compensation actually occurred, the change would be
Pareto efficient, because no one would wind up worse off. But
Kaldor-Hicks efficiency does not demand that compensation
occur, only that if it did we’d have no losers. Another way of
thinking of this criterion is in terms of cost-benefit analysis. If
we add up all the benefits (in terms of satisfied preferences)
and subtracted all the costs (in terms of disappointed
preferences), we’d have a positive number. All we require is
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that the benefits of a Kaldor-Hicks efficient change outweigh
the costs.
In our car sale example, imagine now that there is a thirdparty, say the seller’s parents who had originally given the car
to the seller as a sentimental gift. They are disappointed that
the seller will part with the car. The sale, therefore, is no
longer a Pareto efficient change. But if the benefits to the
buyer and seller outweigh the parents’ disappointment, then it
is a Kaldor-Hicks efficient change. The buyer and seller could
take some of their utility and transfer it to offset the parents’
emotional loss (perhaps just by paying them) and remain
happy that the sale occurred. If they cannot, if their happiness
is in fact outweighed by the parents’ disappointment, then the
exchange would not be Kaldor-Hicks efficient. This is
ridiculously depicted below, where that thumbs down is much
bigger than the two hearts combined. The costs outweigh the
benefits.
A less contrived example is that of a polluting factory. In the
absence of statutes preventing it, a factory wishes to operate
in way that will generate pollution that is unwelcome in a
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neighboring town. The decision to operate is, therefore, not
Pareto efficient. Is it Kaldor-Hicks efficient? Only if the
benefits of operation outweigh the costs to those affected by
the pollution.
Notice that if we were to make a normative judgment that a
Kaldor-Hicks efficient change should occur, then we are
approving net gains despite their distributive impact on the
losers. All cost-benefit analyses are efforts to quantify the
efficiency of a proposal (whether law, regulation, contract, or
business venture), but sometimes, either in the course of
analyzing efficiency or for this very purpose, they identify the
proposal’s distributive consequences. We may wish to trade
some efficiency gains for more distributive fairness. Notions
of distributive justice will be covered in a later reading.
Externalities
You may have noticed something that seemed especially
unfair about the polluting factory example. The entity making
the decision was not the entity that would bear some of the
major costs of that decision. The factory’s decision to operate
and pollute imposed costs on neighbors that the factory would
not itself bear. These costs are external to the factory. Because
it does not have to pay these costs, we can refer to them as
unpriced externalities. A rational actor, under the model we are
assuming, will make decisions based on the costs and benefits
to her, performing an internal cost-benefit calculation. That
could lead to wildly inefficient decisionmaking!
Suppose the benefits to the factory of operating are, net of
its own costs, about $1 million annually. Now suppose that
the costs on neighbors, even if we only consider the reduction
in property values, is $4 million per year. Here we have a
thumbs-down that is four times bigger than the factory’s
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heart. Deciding to operate in this condition would be Pareto
inefficient, because there is a loser. But, further and more
importantly, it would be Kaldor-Hicks inefficient, because the
factory could not compensate the neighbors for their losses
and still come out ahead. Under this efficiency criterion,
operating the factory would be bad for the world. It’s a
change we don’t want.
But unless the law forbids the pollution or requires the
factory to compensate the neighbors, the factory will decide to
operate. The $4 million loss to the neighbors is an unpriced
externality that the factory does not include in its private costbenefit calculation. Our social cost-benefit calculation does
include it, and we see easily that the factory is making a
socially inefficient decision.
One solution to the problem of unpriced externalities is
associated with early 20th century economist Arthur Pigou.
Use taxes or liability to internalize the externality. Suppose we
are unsure whether the factory’s profitability would exceed
the harm to the neighbors. If the factory has to compensate
the neighbors, then it will include the neighbors’ cost in its
private cost-benefit calculation and therefore make a socially
efficient decision. Pigouvian internalization suggests that law
should intervene in otherwise free markets, though taxes,
liability, or regulation, when markets would fail to deliver
efficiency on account of unpriced externalities. Our job, as
legal engineers, would be to ferret out such externalities. Can
you see why this might be a hard job?
Ronald Coase, Part 1
In a groundbreaking article, The Problem of Social Cost,
economist Ronald Coase laid waste to this simple idea of
externalities. Coase’s insight was that all “harms” are
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reciprocal in nature. What may look like a problem of one
member in a society harming another is, in truth, the desires
of the two coming into conflict. They cannot both realize their
preferences at the same time. It may be that we prefer one or
the other on moral grounds, but that would owe to a
particular moral theory - not to a neutral accounting of
preferences.
For example, return to our car transaction that would
impose an external cost on the non-decisionmaking and
disappointed parents. The problem here is that the parents
and the transactors have conflicting preferences that cannot
all be satisfied. If the transaction occurs, a cost is imposed on
the parents. If the parents succeeded in blocking the
transaction, a cost would be imposed on the transactors.
Our polluting factory seemed like such an obvious example
of a market actor imposing externalities. But that’s because
we have an intuitive idea about which harms are “unnatural”
or “unfair,” not because of preference impacts. If the factory
operates, it harms the preference satisfaction of the neighbors.
If the neighbors can stop the factory, then the factory’s
owners preferences are disrupted. The harms are reciprocal,
and the real problem is that the factory owners’ desires and
the neighbor’s desires conflict.
If we knew for sure whether it would be more efficient to
realize the preferences of one side or the other (as in the
numerical examples I gave in the last section), then we could
on efficiency grounds give that side the power to realize their
preferences (e.g., allowing the factory to operate or blocking
the operation of the factory). Either side we entitle would be
in a position to impose an externality on the other. And we
would still have to decide whether to make that side pay the
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other its costs (e.g., the neighbors paying the factory not to
operate or the factory’s owners paying the neighbors for
damages), but such payments would only move costs around,
not alter the net social gains.
We are often unsure, however, whose preferences in such
conflicts are weightier. In other words, we are unsure whether
entitling one side or the other would be more efficient in a
Kaldor-Hicks sense. Perhaps we could let one side make the
decision on condition that it pay the other side. In other
words, we could make the side we empower liable for
damages to the other side. Which side should we empower?
Coase demonstrated that, again without a separate moral
theory of harm, we cannot just say that the harm-causer
should have to pay the victim. In our factory example, we
could either (a) allow the factory to pollute if it pays damages
to the neighbors or (b) bar the factory if the neighbors pay
damages to the owners. If we knew how to assess such
damages, either result would be efficient. Can you see why?
This approach suggests that if efficiency is our goal, if we
are unsure what use is most efficient, and we are confident in
our ability to calculate damages on one side but not the other,
we should put liability on that side. For example, suppose we
can confidently assess the damages to the neighbors but that
the costs of not operating the factory would be very difficult
to calculate. We could make the factory liable to the
neighbors but allow it to pollute if it pays damages. Because
we are confident in the damages to neighbors, we are now
confident that when the factory balances the costs and
benefits to it, it will do so accurately. If it decides that, even
having to pay damages, operation is cost-justified, then the
factory’s operation is efficient. If, however, we lacked
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confidence in the amount of damages to the neighbors, we
would, correspondingly, lack confidence in the factory’s costbenefit calculation and thus in the efficiency of the action it
chooses.
Ronald Coase, Part 2
In The Problem of Social Cost, Coase stated an even more
provocative principle than that of the reciprocal nature of
harm. We have thus far been ignoring the fact that parties can
always bargain among themselves. Under our rational actor
assumption, if a party identifies an opportunity it values more
than the cost of taking the opportunity, it will take the
opportunity. If the rational actor values a car more than it
values the $1000 in his pocket, he will be willing to trade the
money for the car. Let’s examine the implication of this.
Suppose the factory wishes to operate but knows that it
would be found liable to the neighbors in a tort suit for
nuisance - and subject to an injunction forbidding it from
operating. If the factory owners stand to earn from operations
enough to induce the neighbors not to bring suit (or to enter a
settlement agreement), then they should be able to offer this
sum to the neighbors who should accept this offer. Indeed, if
being free of pollution is worth $1 million to the neighbors
and operating the factory is worth $4 million to the owners,
then the factory owner should be able to pay the neighbors to
settle any claims. End result: the factory operates, which is
the efficient solution given our assumptions.
If there is no law that would bar the factory from operating,
then, under the same assumptions above, the factory will
operate. The neighbors would not offer more than $1 million,
which would not be enough to induce the factory owners to
forego the $4 million they would earn from operating.
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The upshot is that no matter what the law is the factory will
operate. If we reverse the numbers above, $4 million in
damage to the neighbors and $1 million in factory profits,
then we see, similarly, that no matter what the legal rule, the
factory will not operate. If they aren’t entitled by law to
operate, they won’t be able to induce the neighbors to settle.
If they are entitled to operate, the neighbors should be willing
to pay more than the $1 million they’d earn to induce them
not to operate.
The general lesson here is that no matter the legal rule, the
parties will bargain to achieve an efficient result. This is
rather stunning, because it implies that, perhaps, law does not
matter.
Ok, before accepting that claim, which is often called the
Coase Theorem, let us look at some provisos and necessary
assumptions. First, even if the parties will bargain to reach the
efficient result, the legal rule has a distributive effect. It will
dictate who must pay whom to change an entitlement under
law. One party will be made richer and one poorer by this
choice.
Second, the result above depended on all parties’ being
rational actors. Real people, as we will discuss in the next
section, depart from this model.
Third, for the above sort of Coasean bargaining to occur,
the initial entitlement must be clear. If the parties are unsure
whether the factory will be found to be a nuisance, then they
will be unsure who must pay whom to acquire the
entitlement. This uncertainty reduces the likelihood of
reaching an agreement.
Fourth, we assumed that the parties could bargain without
cost. This is not so. In the real world, any bargaining comes
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with transaction costs. Transaction costs are all the costs,
conceived broadly, that are required to complete a
transaction. They include the cost of finding the person with
whom you’ll transact, meeting them, bargaining with them,
and closing the deal.
In our factory example, reaching a deal with all the
neighbors would present steep transaction costs. Although it
wouldn’t take much in time or resources to locate them, each
neighbor has the power to derail the whole deal by refusing to
settle. Each is a potential holdout. Just imagine the likelihood
of building a large metropolitan airport if it required
purchasing 2,000 residential homes to create the space to
build. It wouldn’t be good enough to buy most of the homes.
You can’t build a runway that is mostly free of two-story
homes. Each of those 2,000 residents now has a great
incentive to hold out for as much money as they think the
airport is willing to pay — shifting the price of transaction
closer to a portion of the value of the airport than to the value
the home would have gone for on the market without the
airport.
If the factory in our example were free under the law to
operate but the neighbors valued non-operation far in excess
of the value to the owners of operation, then an efficient
bargain should take place. But that would require the
neighbors each to contribute to raising the amount of money
it would take to induce the factory not to operate. Anyone
familiar with public radio pledge drives or other efforts to get
people to kick in for services they enjoy will appreciate the
problem: free riders. Why should you pay unless you can be
sure others will pay their fair share? And, even then, why not
let other carry the load? Overcoming the free rider and
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holdout problems requires mass organization, a transaction
cost that can be immense.
These last two are examples of collective action problems,
instances in which even rational actors have difficulty acting
as a group which itself is rational. Such problems often justify
governmental intervention in markets or government
provision of a good (like national defense or critical
infrastructure).
Transaction Cost Economics
We now have all the tools to appreciate efficiency-driven
analysis of policies, deals, and events. It amounts to predicting
what rational actors will do in response to opportunities that
present different levels of gain, loss, and transaction cost.
Generally, when transaction costs are low, parties will
rearrange entitlements to achieve efficient outcomes, absent
law barring it. When transaction costs are high, they will be
unable to do so.
We are on the look-out for high transaction cost scenarios,
where our assumptions about the optimizing power of private
transactions are likely to fail. So collective action problems,
where there are many parties on one side of a transaction,
presenting many possible holdouts or free-riders, or bilateral
monopolies (situations in which there is only one possible
buyer and one possible seller and that thus raise the specter of
wasteful, strategic bargaining) – these are areas of likely
market failure in which liability or regulation might produce
efficiency gains.
The Cases
The cases you will read next illustrate some of these issues.
The first, Lake City is a contracts case. Normally, when you
enter an agreement, through offer and acceptance, you are
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bound to perform the terms of the agreement. If you agree to
sell your car in exchange for money, you have undertaken a
duty to hand over the car, and the buyer has undertaken a
duty to hand over the money. When someone fails to perform
the duties required under a contract, we say the contract has
been breached. Someone who breaches a contract can be sued
for doing so, but what should a court order? Only rarely will
a court order a party to perform the specific actions required
by a contract. Such an injunction is called an order for specific
performance. Rather, courts almost always award money
damages for breach. But how much? Almost always the
answer is expectation damages, meaning the value the plaintiff
would have received under the contract if the breaching
defendant had fully performed. This raises the possibility that
(a) someone might breach a contract to take advantage of a
better opportunity, preferring just to pay damages, and (b)
that parties might try to write contracts that prevent such
instances of “efficient breach.” When you read the case, ask
yourself whether you believe “efficient breach” is justifiable
and what sorts of considerations would support it or,
alternatively, support remedies or contract provisions that
deter it.
Second, is Carroll Towing, a torts case in which the question
is whether a defendant should have taken more precautions to
prevent the sinking of a boat. The very general question here
is when to make someone liable for injuries to another. Can
you see how the court’s explanation of when to hold someone
liable for not taking precautions is driven by efficiency
concerns?
Third is Boomer v. Atlantic Cement Co., another tort case, this
one involving neighbors of a factor suing that factory for
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nuisance. The tort of nuisance requires a landowner to prove
that the defendant substantially and unreasonably interfered
with the private use of land. This ordinarily involves a
balancing of the utility of the nuisance-generating conduct
and the gravity of the harm to the landowner plaintiff. In this
case, there was no question that the air pollution was a
nuisance so-defined. The issue is whether the neighbors could
get an injunction, an order requiring the factory to stop the
pollution (thus likely shutting down). Why does the court’s
solution make sense on efficiency grounds? Wouldn’t Coase’s
theorem suggest that an injunction would result in efficiency
anyway?
Review Topics and Questions
– Be able to recognize and apply in arguments the basic
tools of law and economics methodology:
– the rational actor model (its assumptions and
dynamics)
– efficiency (Pareto and Kaldo-Hicks)
– distributive effects
– externalities
– transaction costs (including hold-outs, free riders,
search costs, and strategic bargaining)
– Coasean bargaining and the Coase Theorem
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– Make an argument for and against permitting efficient
breach of contract.
– What is a penalty clause and why does it conflict with
permitting efficient breach?
– What is the “Learned Hand formula” in tort law, and
what is its relation to efficiency?
– Why would an injunction for the residents likely be
inefficient in Boomer?
– Explain why a voluntarily negotiated contract is likely
to be Pareto efficient.
– What facts about a contract would cause you to doubt
the contract's efficiency? (In other words, what facts
you might learn as a judge being asked to enforce a
contract would cause you to doubt that the contract
being litigated is Pareto efficient?)
– Identify an externality in your decision to drive your
car to school. Explain why it is an externality.
Lake River Corp. v. Carborundum Co., 769 F. 2d
1284
Posner, Circuit Judge.
This diversity suit between Lake River Corporation and
Carborundum Company requires us to consider questions of
Illinois commercial law, and in particular to explore the fuzzy
line between penalty clauses and liquidated-damages clauses.
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Carborundum manufactures “Ferro Carbo,” an abrasive
powder used in making steel. To serve its midwestern
customers better, Carborundum made a contract with Lake
River by which the latter agreed to provide distribution
services in its warehouse in Illinois. Lake River would receive
Ferro Carbo in bulk from Carborundum, “bag” it, and ship
the bagged product to Carborundum’s customers. The Ferro
Carbo would remain Carborundum’s property until delivered
to the customers.
Carborundum insisted that Lake River install a new
bagging system to handle the contract. In order to be sure of
being able to recover the cost of the new system ($89,000)
and make a profit of 20 percent of the contract price, Lake
River insisted on the following minimum-quantity guarantee:
In consideration of the special equipment [i.e., the new
bagging system] to be acquired and furnished by LAKERIVER for handling the product, CARBORUNDUM
shall, during the initial three-year term of this
Agreement, ship to LAKE-RIVER for bagging a
minimum quantity of [22,500 tons]. If, at the end of the
three-year term, this minimum quantity shall not have
been shipped, LAKE-RIVER shall invoice
CARBORUNDUM at the then prevailing rates for the
difference between the quantity bagged and the minimum
guaranteed.
If Carborundum had shipped the full minimum quantity that
it guaranteed, it would have owed Lake River roughly
$533,000 under the contract.
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After the contract was signed in 1979, the demand for
domestic steel, and with it the demand for Ferro Carbo,
plummeted, and Carborundum failed to ship the guaranteed
amount. When the contract expired late in 1982,
Carborundum had shipped only 12,000 of the 22,500 tons it
had guaranteed. Lake River had bagged the 12,000 tons and
had billed Carborundum for this bagging, and Carborundum
had paid, but by virtue of the formula in the minimumguarantee clause Carborundum still owed Lake River
$241,000 — the contract price of $533,000 if the full amount
of Ferro Carbo had been shipped, minus what Carborundum
had paid for the bagging of the quantity it had shipped.
When Lake River demanded payment of this amount,
Carborundum refused, on the ground that the formula
imposed a penalty. At the time, Lake River had in its
warehouse 500 tons of bagged Ferro Carbo, having a market
value of $269,000, which it refused to release unless
Carborundum paid the $241,000 due under the formula. Lake
River did offer to sell the bagged product and place the
proceeds in escrow until its dispute with Carborundum over
the enforceability of the formula was resolved, but
Carborundum rejected the offer and trucked in bagged Ferro
Carbo from the East to serve its customers in Illinois, at an
additional cost of $31,000.
Lake River brought this suit for $241,000, which it claims
as liquidated damages. Carborundum counterclaimed for the
value of the bagged Ferro Carbo when Lake River
impounded it and the additional cost of serving the customers
affected by the impounding. The theory of the counterclaim is
that the impounding was a conversion, and not as Lake River
contends the assertion of a lien. The district judge, after a
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bench trial, gave judgment for both parties. Carborundum
ended up roughly $42,000 to the good: $269,000 + $31,000$241,000-$17,000, the last figure representing prejudgment
interest on Lake River’s damages. (We have rounded off all
dollar figures to the nearest thousand.) Both parties have
appealed.
....
The hardest issue in the case is whether the formula in the
minimum-guarantee clause imposes a penalty for breach of
contract or is merely an effort to liquidate damages. Deep as
the hostility to penalty clauses runs in the common law, see
Loyd, Penalties and Forfeitures, 29 Harv. L. Rev. 117 (1915), we
still might be inclined to question, if we thought ourselves free
to do so, whether a modern court should refuse to enforce a
penalty clause where the signator is a substantial corporation,
well able to avoid improvident commitments. Penalty clauses
provide an earnest of performance. The clause here enhanced
Carborundum’s credibility in promising to ship the minimum
amount guaranteed by showing that it was willing to pay the
full contract price even if it failed to ship anything. On the
other side it can be pointed out that by raising the cost of a
breach of contract to the contract breaker, a penalty clause
increases the risk to his other creditors; increases (what is the
same thing and more, because bankruptcy imposes
“deadweight” social costs) the risk of bankruptcy; and could
amplify the business cycle by increasing the number of
bankruptcies in bad times, which is when contracts are most
likely to be broken. But since little effort is made to prevent
businessmen from assuming risks, these reasons are no better
than makeweights.
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A better argument is that a penalty clause may discourage
efficient as well as inefficient breaches of contract. Suppose a
breach would cost the promisee $12,000 in actual damages
but would yield the promisor $20,000 in additional profits.
Then there would be a net social gain from breach. After
being fully compensated for his loss the promisee would be no
worse off than if the contract had been performed, while the
promisor would be better off by $8,000. But now suppose the
contract contains a penalty clause under which the promisor
if he breaks his promise must pay the promisee $25,000. The
promisor will be discouraged from breaking the contract,
since $25,000, the penalty, is greater than $20,000, the profits
of the breach; and a transaction that would have increased
value will be forgone.
On this view, since compensatory damages should be
sufficient to deter inefficient breaches (that is, breaches that
cost the victim more than the gain to the contract breaker),
penal damages could have no effect other than to deter some
efficient breaches. But this overlooks the earlier point that the
willingness to agree to a penalty clause is a way of making the
promisor and his promise credible and may therefore be
essential to inducing some value-maximizing contracts to be
made. It also overlooks the more important point that the
parties (always assuming they are fully competent) will, in
deciding whether to include a penalty clause in their contract,
weigh the gains against the costs — costs that include the
possibility of discouraging an efficient breach somewhere
down the road — and will include the clause only if the
benefits exceed those costs as well as all other costs.
On this view the refusal to enforce penalty clauses is (at
best) paternalistic — and it seems odd that courts should
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display parental solicitude for large corporations. But
however this may be, we must be on guard to avoid importing
our own ideas of sound public policy into an area where our
proper judicial role is more than usually deferential. The
responsibility for making innovations in the common law of
Illinois rests with the courts of Illinois, and not with the
federal courts in Illinois. And like every other state, Illinois,
untroubled by academic skepticism of the wisdom of refusing
to enforce penalty clauses against sophisticated promisors,
see, e.g., Goetz & Scott, Liquidated Damages, Penalties and the
Just Compensation Principle, 77 Colum. L. Rev. 554 (1977),
continues steadfastly to insist on the distinction between
penalties and liquidated damages. See, e.g., [many Illinois
cases]. To be valid under Illinois law a liquidation of damages
must be a reasonable estimate at the time of contracting of the
likely damages from breach, and the need for estimation at
that time must be shown by reference to the likely difficulty of
measuring the actual damages from a breach of contract after
the breach occurs. If damages would be easy to determine
then, or if the estimate greatly exceeds a reasonable upper
estimate of what the damages are likely to be, it is a penalty.
See, e.g., M.I.G. Investments, Inc. v. Marsala, 92 Ill. App. 3d 400,
405-06 (1981).
The distinction between a penalty and liquidated damages
is not an easy one to draw in practice but we are required to
draw it and can give only limited weight to the district court’s
determination. . . . .
[W]e conclude that the damage formula in this case is a
penalty and not a liquidation of damages, because it is
designed always to assure Lake River more than its actual
damages. The formula — full contract price minus the amount
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already invoiced to Carborundum — is invariant to the
gravity of the breach. When a contract specifies a single sum
in damages for any and all breaches even though it is
apparent that all are not of the same gravity, the specification
is not a reasonable effort to estimate damages; and when in
addition the fixed sum greatly exceeds the actual damages
likely to be inflicted by a minor breach, its character as a
penalty becomes unmistakable. See M.I.G. Investments, Inc.,
supra [and other cases]. This case is within the gravitational
field of these principles even though the minimum-guarantee
clause does not fix a single sum as damages.
Suppose to begin with that the breach occurs the day after
Lake River buys its new bagging system for $89,000 and
before Carborundum ships any Ferro Carbo. Carborundum
would owe Lake River $533,000. Since Lake River would
have incurred at that point a total cost of only $89,000, its net
gain from the breach would be $444,000. This is more than
four times the profit of $107,000 (20 percent of the contract
price of $533,000) that Lake River expected to make from the
contract if it had been performed: a huge windfall.
Next suppose (as actually happened here) that breach
occurs when 55 percent of the Ferro Carbo has been shipped.
Lake River would already have received $293,000 from
Carborundum. To see what its costs then would have been (as
estimated at the time of contracting), first subtract Lake
River’s anticipated profit on the contract of $107,000 from the
total contract price of $533,000. The difference — Lake
River’s total cost of performance — is $426,000. Of this,
$89,000 is the cost of the new bagging system, a fixed cost.
The rest ($426,000-$89,000 = $337,000) presumably consists
of variable costs that are roughly proportional to the amount
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of Ferro Carbo bagged; there is no indication of any other
fixed costs. Assume, therefore, that if Lake River bagged 55
percent of the contractually agreed quantity, it incurred in
doing so 55 percent of its variable costs, or $185,000. When
this is added to the cost of the new bagging system, assumed
for the moment to be worthless except in connection with the
contract, the total cost of performance to Lake River is
$274,000. Hence a breach that occurred after 55 percent of
contractual performance was complete would be expected to
yield Lake River a modest profit of $19,000 ($293,000$274,000). But now add the “liquidated damages” of $241,000
that Lake River claims, and the result is a total gain from the
breach of $260,000, which is almost two and a half times the
profit that Lake River expected to gain if there was no
breach. And this ignores any use value or salvage value of the
new bagging system, which is the property of Lake River —
though admittedly it also ignores the time value of money;
Lake River paid $89,000 for that system before receiving any
revenue from the contract.
To complete the picture, assume that the breach had not
occurred till performance was 90 percent complete. Then the
“liquidated damages” clause would not be so one-sided, but it
would be one-sided. Carborundum would have paid $480,000
for bagging. Against this, Lake River would have incurred its
fixed cost of $89,000 plus 90 percent of its variable costs of
$337,000, or $303,000. Its total costs would thus be $392,000,
and its net profit $88,000. But on top of this it would be
entitled to “liquidated damages” of $53,000, for a total profit
of $141,000 — more than 30 percent more than its expected
profit of $107,000 if there was no breach.
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The reason for these results is that most of the costs to Lake
River of performing the contract are saved if the contract is
broken, and this saving is not reflected in the damage
formula. As a result, at whatever point in the life of the
contract a breach occurs, the damage formula gives Lake
River more than its lost profits from the breach —
dramatically more if the breach occurs at the beginning of the
contract; tapering off at the end, it is true. Still, over the
interval between the beginning of Lake River’s performance
and nearly the end, the clause could be expected to generate
profits ranging from 400 percent of the expected contract
profits to 130 percent of those profits. And this is on the
assumption that the bagging system has no value apart from
the contract. If it were worth only $20,000 to Lake River, the
range would be 434 percent to 150 percent.
....
The fact that the damage formula is invalid does not deprive
Lake River of a remedy. The parties did not contract
explicitly with reference to the measure of damages if the
agreed-on damage formula was invalidated, but all this means
is that the victim of the breach is entitled to his common law
damages. See, e.g., Restatement, Second, Contracts § 356,
comment a (1981). In this case that would be the unpaid
contract price of $241,000 minus the costs that Lake River
saved by not having to complete the contract (the variable
costs on the other 45 percent of the Ferro Carbo that it never
had to bag). The case must be remanded to the district judge
to fix these damages. . . . .
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United States. v. Carroll Towing Co., 159 F.2d 169
(1947)
L. HAND, Circuit Judge.
[In a busy New York harbor, the Anna C., a barge owned by
the Conners Company and chartered by another party, was
moored alongside many other barges to a pier. It bore a cargo
of flour owned by the United States. A tugboat owned by
Carroll Towing and chartered by another company was sent
to move one of the barges to allow access to the pier. It
collided with a tanker, the propellor of which then made a
hole in the Anna C. The Anna C. then took on water and
sank, losing its cargo of flour. This spawned many lawsuits
and countersuits. The district court found Carroll Towing Co.
was liable to the United States and, for half of its loss, to the
Conners Company. Among other arguments on appeal, Carrol
Towing argued that Conners Company was partially
responsible for the loss, because if it had an employee aboard
the Anna C. (A “bargee”), the employee would have noticed
the damage once struck, called for help, and prevented the
sinking.]
It appears from the foregoing review that there is no
general rule to determine when the absence of a bargee or
other attendant will make the owner of the barge liable for
injuries to other vessels if she breaks away from her moorings.
However, in any cases where he would be so liable for injuries
to others obviously he must reduce his damages
proportionately, if the injury is to his own barge. It becomes
apparent why there can be no such general rule, when we
consider the grounds for such a liability. Since there are
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occasions when every vessel will break from her moorings,
and since, if she does, she becomes a menace to those about
her; the owner’s duty, as in other similar situations, to provide
against resulting injuries is a function of three variables: (1)
The probability that she will break away; (2) the gravity of
the resulting injury, if she does; (3) the burden of adequate
precautions. Possibly it serves to bring this notion into relief
to state it in algebraic terms: if the probability be called P; the
injury, L; and the burden, B; liability depends upon whether
B is less than L multiplied by P: i.e., whether B < PL. Applied
to the situation at bar, the likelihood that a barge will break
from her fasts and the damage she will do, vary with the place
and time; for example, if a storm threatens, the danger is
greater; so it is, if she is in a crowded harbor where moored
barges are constantly being shifted about. On the other hand,
the barge must not be the bargee’s prison, even though he
lives aboard; he must go ashore at times. We need not say
whether, even in such crowded waters as New York Harbor a
bargee must be aboard at night at all; it may be that the
custom is otherwise, as Ward, J., supposed in ‘The Kathryn B.
Guinan,’ . . . ; and that, if so, the situation is one where custom
should control. We leave that question open; but we hold that
it is not in all cases a sufficient answer to a bargee’s absence
without excuse, during working hours, that he has properly
made fast his barge to a pier, when he leaves her. In the case
at bar the bargee left at five o’clock in the afternoon of
January 3rd, and the flotilla broke away at about two o’clock
in the afternoon of the following day, twenty-one hours
afterwards. The bargee had been away all the time, and we
hold that his fabricated story was affirmative evidence that he
had no excuse for his absence. At the locus in quo- especially
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during the short January days and in the full tide of war
activity- barges were being constantly ‘drilled’ in and out.
Certainly it was not beyond reasonable expectation that, with
the inevitable haste and bustle, the work might not be done
with adequate care. In such circumstances we hold- and it is
all that we do hold- that it was a fair requirement that the
Conners Company should have a bargee aboard (unless he
had some excuse for his absence), during the working hours
of daylight.
....
Boomer v. Atlantic Cement Co., 26 N.Y.2d 219
(1970)
Bergan, J.
Defendant operates a large cement plant near Albany.
These are actions for injunction and damages by neighboring
land owners alleging injury to property from dirt, smoke and
vibration emanating from the plant. A nuisance has been
found after trial, temporary damages have been allowed; but
an injunction has been denied.
The public concern with air pollution arising from many
sources in industry and in transportation is currently
accorded ever wider recognition accompanied by a growing
sense of responsibility in State and Federal Governments to
control it. Cement plants are obvious sources of air pollution
in the neighborhoods where they operate.
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But there is now before the court private litigation in
which individual property owners have sought specific relief
from a single plant operation. The threshold question raised
by the division of view on this appeal is whether the court
should resolve the litigation between the parties now before it
as equitably as seems possible; or whether, seeking promotion
of the general public welfare, it should channel private
litigation into broad public objectives.
A court performs its essential function when it decides the
rights of parties before it. Its decision of private controversies
may sometimes greatly affect public issues. Large questions of
law are often resolved by the manner in which private
litigation is decided. But this is normally an incident to the
court's main function to settle controversy. It is a rare exercise
of judicial power to use a decision in private litigation as a
purposeful mechanism to achieve direct public objectives
greatly beyond the rights and interests before the court.
Effective control of air pollution is a problem presently far
from solution even with the full public and financial powers of
government. In large measure adequate technical procedures
are yet to be developed and some that appear possible may be
economically impracticable.
It seems apparent that the amelioration of air pollution will
depend on technical research in great depth; on a carefully
balanced consideration of the economic impact of close
regulation; and of the actual effect on public health. It is likely
to require massive public expenditure and to demand more
than any local community can accomplish and to depend on
regional and interstate controls.
A court should not try to do this on its own as a by-product
of private litigation and it seems manifest that the judicial
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establishment is neither equipped in the limited nature of any
judgment it can pronounce nor prepared to lay down and
implement an effective policy for the elimination of air
pollution. This is an area beyond the circumference of one
private lawsuit. It is a direct responsibility for government
and should not thus be undertaken as an incident to solving a
dispute between property owners and a single cement plant -one of many -- in the Hudson River valley.
The cement making operations of defendant have been
found by the court at Special Term to have damaged the
nearby properties of plaintiffs in these two actions. That
court, as it has been noted, accordingly found defendant
maintained a nuisance and this has been affirmed at the
Appellate Division. The total damage to plaintiffs' properties
is, however, relatively small in comparison with the value of
defendant's operation and with the consequences of the
injunction which plaintiffs seek.
The ground for the denial of injunction, notwithstanding
the finding both that there is a nuisance and that plaintiffs
have been damaged substantially, is the large disparity in
economic consequences of the nuisance and of the injunction.
This theory cannot, however, be sustained without overruling
a doctrine which has been consistently reaffirmed in several
leading cases in this court and which has never been
disavowed here, namely that where a nuisance has been found
and where there has been any substantial damage shown by
the party complaining an injunction will be granted.
The rule in New York has been that such a nuisance will
be enjoined although marked disparity be shown in economic
consequence between the effect of the injunction and the
effect of the nuisance.
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The problem of disparity in economic consequence was
sharply in focus in Whalen v. Union Bag & Paper Co. (208 N. Y.
1). A pulp mill entailing an investment of more than a million
dollars polluted a stream in which plaintiff, who owned a
farm, was “a lower riparian owner”. The economic loss to
plaintiff from this pollution was small. This court, reversing
the Appellate Division, reinstated the injunction granted by
the Special Term against the argument of the mill owner that
in view of “the slight advantage to plaintiff and the great loss
that will be inflicted on defendant” an injunction should not
be granted (p. 2). “Such a balancing of injuries cannot be
justified by the circumstances of this case”, Judge Werner
noted (p. 4). He continued: “Although the damage to the
plaintiff may be slight as compared with the defendant's
expense of abating the condition, that is not a good reason for
refusing an injunction” (p. 5).
Thus the unconditional injunction granted at Special Term
was reinstated. The rule laid down in that case, then, is that
whenever the damage resulting from a nuisance is found not
“unsubstantial”, viz., $100 a year, injunction would follow.
This states a rule that had been followed in this court with
marked consistency (McCarty v. Natural Carbonic Gas Co., 189
N. Y. 40; Strobel v. Kerr Salt Co., 164 N. Y. 303; Campbell v.
Seaman, 63 N. Y. 568).
....
Although the court at Special Term and the Appellate
Division held that injunction should be denied, it was found
that plaintiffs had been damaged in various specific amounts
up to the time of the trial and damages to the respective
plaintiffs were awarded for those amounts. The effect of this
was, injunction having been denied, plaintiffs could maintain
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successive actions at law for damages thereafter as further
damage was incurred.
The court at Special Term also found the amount of
permanent damage attributable to each plaintiff, for the
guidance of the parties in the event both sides stipulated to
the payment and acceptance of such permanent damage as a
settlement of all the controversies among the parties. The total
of permanent damages to all plaintiffs thus found was
$185,000. This basis of adjustment has not resulted in any
stipulation by the parties.
This result at Special Term and at the Appellate Division is
a departure from a rule that has become settled; but to follow
the rule literally in these cases would be to close down the
plant at once. This court is fully agreed to avoid that
immediately drastic remedy; the difference in view is how best
to avoid it.1
One alternative is to grant the injunction but postpone its
effect to a specified future date to give opportunity for
technical advances to permit defendant to eliminate the
nuisance; another is to grant the injunction conditioned on the
payment of permanent damages to plaintiffs which would
compensate them for the total economic loss to their property
present and future caused by defendant's operations. For
reasons which will be developed the court chooses the latter
alternative.
If the injunction were to be granted unless within a short
period – e.g., 18 months – the nuisance be abated by
1
Respondent's investment in the plant is in excess of
$45,000,000. There are over 300 people employed there.
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improved methods, there would be no assurance that any
significant technical improvement would occur.
The parties could settle this private litigation at any time if
defendant paid enough money and the imminent threat of
closing the plant would build up the pressure on defendant. If
there were no improved techniques found, there would
inevitably be applications to the court at Special Term for
extensions of time to perform on showing of good faith efforts
to find such techniques.
Moreover, techniques to eliminate dust and other annoying
by-products of cement making are unlikely to be developed
by any research the defendant can undertake within any short
period, but will depend on the total resources of the cement
industry Nationwide and throughout the world. The problem
is universal wherever cement is made.
For obvious reasons the rate of the research is beyond
control of defendant. If at the end of 18 months the whole
industry has not found a technical solution a court would be
hard put to close down this one cement plant if due regard be
given to equitable principles.
On the other hand, to grant the injunction unless
defendant pays plaintiffs such permanent damages as may be
fixed by the court seems to do justice between the contending
parties. All of the attributions of economic loss to the
properties on which plaintiffs' complaints are based will have
been redressed.
The nuisance complained of by these plaintiffs may have
other public or private consequences, but these particular
parties are the only ones who have sought remedies and the
judgment proposed will fully redress them. The limitation of
relief granted is a limitation only within the four corners of
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these actions and does not foreclose public health or other
public agencies from seeking proper relief in a proper court.
It seems reasonable to think that the risk of being required
to pay permanent damages to injured property owners by
cement plant owners would itself be a reasonable effective
spur to research for improved techniques to minimize
nuisance.
The power of the court to condition on equitable grounds
the continuance of an injunction on the payment of
permanent damages seems undoubted. (See, e.g., the
alternatives considered in McCarty v. Natural Carbonic Gas Co.,
supra.;, as well as Strobel v. Kerr Salt Co., supra.;.)
The damage base here suggested is consistent with the
general rule in those nuisance cases where damages are
allowed. “Where a nuisance is of such a permanent and
unabatable character that a single recovery can be had,
including the whole damage past and future resulting
therefrom, there can be but one recovery” (66 C. J. S.,
Nuisances, s 140, p. 947). It has been said that permanent
damages are allowed where the loss recoverable would
obviously be small as compared with the cost of removal of
the nuisance (Kentucky-Ohio Gas Co. v. Bowling, 264 Ky. 470,
477).
....
Thus it seems fair to both sides to grant permanent
damages to plaintiffs which will terminate this private
litigation. The theory of damage is the “servitude on land” of
plaintiffs imposed by defendant's nuisance. (See United States
v. Causby, 328 U. S. 256, 261, 262, 267, where the term
“servitude” addressed to the land was used by Justice
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Douglas relating to the effect of airplane noise on property
near an airport.)
The judgment, by allowance of permanent damages
imposing a servitude on land, which is the basis of the actions,
would preclude future recovery by plaintiffs or their grantees
(see Northern Indiana Public Serv. Co. v. Vesey, supra.;, p. 351).
This should be placed beyond debate by a provision of the
judgment that the payment by defendant and the acceptance
by plaintiffs of permanent damages found by the court shall
be in compensation for a servitude on the land.
Although the Trial Term has found permanent damages as
a possible basis of settlement of the litigation, on remission the
court should be entirely free to re-examine this subject. It may
again find the permanent damage already found; or make new
findings.
The orders should be reversed, without costs, and the cases
remitted to Supreme Court, Albany County to grant an
injunction which shall be vacated upon payment by defendant
of such amounts of permanent damage to the respective
plaintiffs as shall for this purpose be determined by the court.
Jasen, J., Dissenting.
I agree with the majority that a reversal is required here,
but I do not subscribe to the newly enunciated doctrine of
assessment of permanent damages, in lieu of an injunction,
where substantial property rights have been impaired by the
creation of a nuisance.
It has long been the rule in this State, as the majority
acknowledges, that a nuisance which results in substantial
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continuing damage to neighbors must be enjoined. (Whalen v.
Union Bag & Paper Co., 208 N. Y. 1; Campbell v. Seaman, 63 N.
Y. 568; see, also, Kennedy v. Moog Servocontrols, 21 N Y 2d 966.)
To now change the rule to permit the cement company to
continue polluting the air indefinitely upon the payment of
permanent damages is, in my opinion, compounding the
magnitude of a very serious problem in our State and Nation
today.
....
I see grave dangers in overruling our long-established rule
of granting an injunction where a nuisance results in
substantial continuing damage. In permitting the injunction to
become inoperative upon the payment of permanent damages,
the majority is, in effect, licensing a continuing wrong. It is
the same as saying to the cement company, you may continue
to do harm to your neighbors so long as you pay a fee for it.
Furthermore, once such permanent damages are assessed and
paid, the incentive to alleviate the wrong would be eliminated,
thereby continuing air pollution of an area without
abatement.
It is true that some courts have sanctioned the remedy here
proposed by the majority in a number of cases,^104-6 but
none of the authorities relied upon by the majority are
analogous to the situation before us. In those cases, the
courts, in denying an injunction and awarding money
damages, grounded their decision on a showing that the use to
which the property was intended to be put was primarily for
the public benefit. Here, on the other hand, it is clearly
established that the cement company is creating a continuing
air pollution nuisance primarily for its own private interest
with no public benefit.
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This kind of inverse condemnation (Ferguson v. Village of
Hamburg, 272 N. Y. 234 may not be invoked by a private
person or corporation for private gain or advantage. Inverse
condemnation should only be permitted when the public is
primarily served in the taking or impairment of property.
(Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333,
343; Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 258.) The
promotion of the interests of the polluting cement company
has, in my opinion, no public use or benefit.
Nor is it constitutionally permissible to impose servitude on
land, without consent of the owner, by payment of permanent
damages where the continuing impairment of the land is for a
private use. (See Fifth Ave. Coach Lines v. City of New York, 11 N
Y 2d 342, 347; Walker v. City of Hutchinson, 352 U. S. 112.)
This is made clear by the State Constitution (art. I, s 7, subd.
[a]) which provides that “[p]rivate property shall not be
taken for public use without just compensation” (emphasis
added). It is, of course, significant that the section makes no
mention of taking for a private use.
In sum, then, by constitutional mandate as well as by
judicial pronouncement, the permanent impairment of private
property for private purposes is not authorized in the absence
of clearly demonstrated public benefit and use.
I would enjoin the defendant cement company from
continuing the discharge of dust particles upon its neighbors'
properties unless, within 18 months, the cement company
abated this nuisance.2
2
The issuance of an injunction to become effective in the future is
not an entirely new concept. For instance, in Schwarzenbach v.
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It is not my intention to cause the removal of the cement
plant from the Albany area, but to recognize the urgency of
the problem stemming from this stationary source of air
pollution, and to allow the company a specified period of time
to develop a means to alleviate this nuisance.
I am aware that the trial court found that the most modern
dust control devices available have been installed in
defendant's plant, but, I submit, this does not mean that better
and more effective dust control devices could not be
developed within the time allowed to abate the pollution.
Moreover, I believe it is incumbent upon the defendant to
develop such devices, since the cement company, at the time
the plant commenced production (1962), was well aware of
the plaintiffs' presence in the area, as well as the probable
consequences of its contemplated operation. Yet, it still chose
to build and operate the plant at this site.
In a day when there is a growing concern for clean air,
highly developed industry should not expect acquiescence by
the courts, but should, instead, plan its operations to eliminate
contamination of our air and damage to its neighbors.
Accordingly, the orders of the Appellate Division, insofar
as they denied the injunction, should be reversed, and the
actions remitted to Supreme Court, Albany County to grant
an injunction to take effect 18 months hence, unless the
nuisance is abated by improved techniques prior to said date.
Oneonta Light & Power Co. (207 N. Y. 671), an injunction against
the maintenance of a dam spilling water on plaintiff's property
was issued to become effective one year hence.
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Meeting 5: Collective Action and
Human Behavior
For this class, first read Garrett Hardin’s famous article in
S c i e n c e , T h e Tr a g e d y o f t h e C o m m o n s a t [ h t t p : / /
science.sciencemag.org/content/162/3859/1243.full].
Then
read pages 1476-1479 and 1510-1516 of Christine Jolls, Cass
R. Sunstein, and Richard Thaler, A Behavioral Approach to Law
and Economics, 50 Stan. L. Rev. 1471 (1998), at http://
chicagounbound.uchicago.edu/law_and_economics/4/. The
latter selection introduces the concept of behavioral law and
economics and the ways in which real humans depart from
the rational actor model.
Note that these two readings present two different
challenges to law and economics. The tragedy of the commons
(and equivalent problems like the prisoners’ dilemma and
public goods, as we’ll discuss in class) demonstrates a market
failure arising precisely because of the rationality of the
participants. Whereas the following excerpt demonstrates the
potential for market failure arising from irrationality.
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As I will discuss with you in class, the tragedy of the
commons, a downward spiral of collective inefficiency, arises
when all four of the following elements are present:
– There is a destructible resource (or a resource with a
limited carrying capacity, such as rangeland or fish in
fishery).
– Access to this resource is open to more than one
person.
– The self-interest of the resource users predominates.
– The users are unable to enforce cooperation and
restraint.
Realizing that these are the key elements of Hardin’s tragedy,
we can then identify these in various markets and respond in
law by attempting to knock out one of these elements. Can
you think of other examples of the tragedy of the commons even ones in everyday life? There is one article suggesting
that the emergence of such tragedies is what causes a society
to adopt property regimes. And, as a case in this section hints,
a version of this problem lies behind the entire field of
intellectual property law. So this is a pretty important
concept!
Review Topics and Questions
– Can you describe the prisoners’ dilemma and the
tragedy of the commons?
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– Why are the pathologies of these two stories a
consequence of rational action, rather than a
demonstration that the rational actor model doesn’t
apply?
– Can you recognize whether a particular situation will
likely lead to a tragedy of the commons?
– How should we respond to a tragedy of the commons?
– What are the behavioral law and economics main
critiques of the rational actor model, and what are the
consequences for law and economics if they are
correct?
– What is a “reference transaction”? How does the
behavioral theory explain the demand for bans on what
otherwise seem like efficient transactions?
– What exactly does Judge Traynor (in the Supreme
Court of California) advocate in Escola v. Coca Cola
Bottling Co.? Why?
– What is the rational actor theory of plea bargaining?
How might the behavioral theory affect our view of
plea bargaining? Are there other ways to see plea
bargaining in light of our earlier studies of ethical
theories?
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Escola v. Coca Cola Bottling Co.
of Fresno, 150 P.2d 436 (1944)
GIBSON, Chief Justice.
Plaintiff, a waitress in a restaurant, was injured when a bottle
of Coca Cola broke in her hand. She alleged that defendant
company, which had bottled and delivered the alleged
defective bottle to her employer, was negligent in selling
‘bottles containing said beverage which on account of
excessive pressure of gas or by reason of some defect in the
bottle was dangerous * * * and likely to explode.’ This appeal
is from a judgment upon a jury verdict in favor of plaintiff.
Defendant’s driver delivered several cases of Coca Cola to
the restaurant, placing them on the floor, one on top of the
other, under and behind the counter, where they remained at
least thirty-six hours. Immediately before the accident,
plaintiff picked up the top case and set it upon a near-by ice
cream cabinet in front of and about three feet from the
refrigerator. She then proceeded to take the bottles from the
case with her right hand, one at a time, and put them into the
refrigerator. Plaintiff testified that after she had placed three
bottles in the refrigerator and had moved the fourth bottle
about 18 inches from the case ‘it exploded in my hand.’ The
bottle broke into two jagged pieces and inflicted a deep fiveinch cut, severing blood vessels, nerves and muscles of the
thumb and palm of the hand. Plaintiff further testified that
when the bottle exploded, ‘It made a sound similar to an
electric light bulb that would have dropped. It made a loud
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pop.’ Plaintiff’s employer testified, ‘I was about twenty feet
from where it actually happened and I heard the explosion.’ A
fellow employee, on the opposite side of the counter, testified
that plaintiff ‘had the bottle, I should judge, waist high, and I
know that it didn’t bang either the case or the door or another
bottle * * * when it popped. It sounded just like a fruit jar
would blow up * * *.’ The witness further testified that the
contents of the bottle ‘flew all over herself and myself and the
walls and one thing and another.’
The top portion of the bottle, with the cap, remained in
plaintiff’s hand, and the lower portion fell to the floor but did
not break. The broken bottle was not produced at the trial,
the pieces having been thrown away by an employee of the
restaurant shortly after the accident. Plaintiff, however,
described the broken pieces, and a diagram of the bottle was
made showing the location of the ‘fracture line’ where the
bottle broke in two.
One of defendant’s drivers, called as a witness by plaintiff,
testified that he had seen other bottles of Coca Cola in the
past explode and had found broken bottles in the warehouse
when he took the cases out, but that he did not know what
made them blow up.
[The majority then upheld the judgment for the plaintiff on
grounds that the negligence of bottling company could be
inferred, even though no specific negligent acts could be
identified. Importantly, for the concurrence that follows, its
holding rested on the idea that the plaintiff succeeded in
establishing negligence.]
TRAYNOR, Justice.
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[I] believe the manufacturer’s negligence should no longer be
singled out as the basis of a plaintiff’s right to recover in cases
like the present one. In my opinion it should now be
recognized that a manufacturer incurs an absolute liability
when an article that he has placed on the market, knowing
that it is to be used without inspection, proves to have a defect
that causes injury to human beings. MacPherson v. Buick Motor
Co. ... established the principle, recognized by this court, that
irrespective of privity of contract, the manufacturer is
responsible for an injury caused by such an article to any
person who comes in lawful contact with it. In these cases the
source of the manufacturer’s liability was his negligence in the
manufacturing process or in the inspection of component
parts supplied by others. Even if there is no negligence,
however, public policy demands that responsibility be fixed
wherever it will most effectively reduce the hazards to life and
health inherent in defective products that reach the market. It
is evident that the manufacturer can anticipate some hazards
and guard against the recurrence of others, as the public
cannot. Those who suffer injury from defective products are
unprepared to meet its consequences. The cost of an injury
and the loss of time or health may be an overwhelming
misfortune to the person injured, and a needless one, for the
risk of injury can be insured by the manufacturer and
distributed among the public as a cost of doing business. It is
to the public interest to discourage the marketing of products
having defects that are a menace to the public. If such
products nevertheless find their way into the market it is to
the public interest to place the responsibility for whatever
injury they may cause upon the manufacturer, who, even if he
is not negligent in the manufacture of the product, is
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responsible for its reaching the market. However
intermittently such injuries may occur and however
haphazardly they may strike, the risk of their occurrence is a
constant risk and a general one. Against such a risk there
should be general and constant protection and the
manufacturer is best situated to afford such protection.
The injury from a defective product does not become a
matter of indifference because the defect arises from causes
other than the negligence of the manufacturer, such as
negligence of a submanufacturer of a component part whose
defects could not be revealed by inspection ..., or unknown
causes that even by the device of res ipsa loquitur cannot be
classified as negligence of the manufacturer. The inference of
negligence may be dispelled by an affirmative showing of
proper care. If the evidence against the fact inferred is ‘clear,
positive, uncontradicted, and of such a nature that it can not
rationally be disbelieved, the court must instruct the jury that
the nonexistence of the fact has been established as a matter
of law.’ An injured person, however, is not ordinarily in a
position to refute such evidence or identify the cause of the
defect, for he can hardly be familiar with the manufacturing
process as the manufacturer himself is. In leaving it to the
jury to decide whether the inference has been dispelled,
regardless of the evidence against it, the negligence rule
approaches the rule of strict liability. It is needlessly
circuitous to make negligence the basis of recovery and
impose what is in reality liability without negligence. If public
policy demands that a manufacturer of goods be responsible
for their quality regardless of negligence there is no reason
not to fix that responsibility openly.
....
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As handicrafts have been replaced by mass production with
its great markets and transportation facilities, the close
relationship between the producer and consumer of a product
has been altered. Manufacturing processes, frequently
valuable secrets, are ordinarily either inaccessible to or
beyond the ken of the general public. The consumer no longer
has means or skill enough to investigate for himself the
soundness of a product, even when it is not contained in a
sealed package, and his erstwhile vigilance has been lulled by
the steady efforts of manufacturers to build up confidence by
advertising and marketing devices such as trade-marks.
Consumers no longer approach products warily but accept
them on faith, relying on the reputation of the manufacturer
or the trade mark. Manufacturers have sought to justify that
faith by increasingly high standards of inspection and a
readiness to make good on defective products by way of
replacements and refunds. The manufacturer’s obligation to
the consumer must keep pace with the changing relationship
between them; it cannot be escaped because the marketing of
a product has become so complicated as to require one or
more intermediaries. Certainly there is greater reason to
impose liability on the manufacturer than on the retailer who
is but a conduit of a product that he is not himself able to test.
The manufacturer’s liability should, of course, be defined in
terms of the safety of the product in normal and proper use,
and should not extend to injuries that cannot be traced to the
product as it reached the market.
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Brady v. U.S., 397 U.S. 742
(1970)
Mr. Justice WHITE delivered the opinion of the
Court.
In 1959, petitioner was charged with kidnaping in violation of
18 U.S.C. § 1201(a). Since the indictment charged that the
victim of the kidnaping was not liberated unharmed,
petitioner faced a maximum penalty of death if the verdict of
the jury should so recommend. Petitioner, represented by
competent counsel throughout, first elected to plead not
guilty. Apparently because the trial judge was unwilling to try
the case without a jury, petitioner made no serious attempt to
reduce the possibility of a death penalty by waiving a jury
trial. Upon learning that his codefendant, who had confessed
to the authorities, would plead guilty and be available to
testify against him, petitioner changed his plea to guilty. His
plea was accepted after the trial judge twice questioned him
as to the voluntariness of his plea. Petitioner was sentenced to
50 years’ imprisonment, later reduced to 30.
In 1967, petitioner sought relief under 28 U.S.C. § 2255,
claiming that his plea of guilty was not voluntarily given
because § 1201(a) operated to coerce his plea, because his
counsel exerted impermissible pressure upon him, and
because his plea was induced by representations with respect
to reduction of sentence and clemency. It was also alleged that
the trial judge had not fully complied with Rule 11 of the
Federal Rules of Criminal Procedure.
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After a hearing, the District Court for the District of New
Mexico denied relief. According to the District Court’s
findings, petitioner’s counsel did not put impermissible
pressure on petitioner to plead guilty and no representations
were made with respect to a reduced sentence or clemency.
The court held that § 1201(a) was constitutional and found
that petitioner decided to plead guilty when he learned that
his codefendant was going to plead guilty: petitioner pleaded
guilty ‘by reason of other matters and not by reason of the
statute’ or because of any acts of the trial judge. The court
concluded that ‘the plea was voluntarily and knowingly
made.’
The Court of Appeals for the Tenth Circuit affirmed,
determining that the District Court’s findings were supported
by substantial evidence and specifically approving the finding
that petitioner’s plea of guilty was voluntary. We granted
certiorari . . . to consider the claim that the Court of Appeals
was in error in not reaching a contrary result on the authority
of this Court’s decision in United States v. Jackson. We affirm.
I
In United States v. Jackson, . . . the defendants were indicted
under § 1201(a). The District Court dismissed the § 1201(a)
count of the indictment, holding the statute unconstitutional
because it permitted imposition of the death sentence only
upon a jury’s recommendation and thereby made the risk of
death the price of a jury trial. This Court held the statute
valid, except for the death penalty provision; with respect to
the latter, the Court agreed with the trial court ‘that the death
penalty provision * * * imposes an impermissible burden
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upon the exercise of a constitutional right * * *.’ The problem
was to determine ‘whether the Constitution permits the
establishment of such a death penalty, applicable only to those
defendants who assert the right to contest their guilt before a
jury.’ The inevitable effect of the provision was said to be to
discourage assertion of the Fifth Amendment right not to
plead guilty and to deter exercise of the Sixth Amendment
right to demand a jury trial. Because the legitimate goal of
limiting the death penalty to cases in which a jury
recommends it could be achieved without penalizing those
defendants who plead not guilty and elect a jury trial, the
death penalty provision ‘needlessly penalize(d) the assertion
of a constitutional right,’ . . . and was therefore
unconstitutional.
Since the ‘inevitable effect’ of the death penalty provision of
§ 1201(a) was said by the Court to be the needless
encouragement of pleas of guilty and waivers of jury trial,
Brady contends that Jackson requires the invalidation of
every plea of guilty entered under that section, at least when
the fear of death is shown to have been a factor in the plea.
Petitioner, however, has read far too much into the Jackson
opinion.
The Court made it clear in Jackson that it was not holding
§ 1201(a) inherently coercive of guilty pleas: ‘the fact that the
Federal Kidnaping Act tends to discourage defendants from
insisting upon their innocence and demanding trial by jury
hardly implies that every defendant who enters a guilty plea
to a charge under the Act does so involuntarily.’ Cited in
support of this statement . . . was Laboy v. New Jersey . . . where
a plea of guilty (non vult) under a similar statute was
sustained as voluntary in spite of the fact, as found by the
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District Court, that the defendant was greatly upset by the
possibility of receiving the death penalty.
Moreover, the Court in Jackson rejected a suggestion that
the death penalty provision of § 1201(a) be saved by
prohibiting in capital kidnaping cases all guilty pleas and jury
waivers, ‘however clear (the defendants’) guilt and however
strong their desire to acknowledge it in order to spare
themselves and their families the spectacle and expense of
protracted courtroom proceedings.’ ‘(T)hat jury waivers and
guilty pleas may occasionally be rejected’ was no ground for
automatically rejecting all guilty pleas under the statute, for
such a rule ‘would rob the criminal process of much of its
flexibility.’
Plainly, it seems to us, Jackson ruled neither that all pleas
of guilty encouraged by the fear of a possible death sentence
are involuntary pleas nor that such encouraged pleas are
invalid whether—involuntary or not. Jackson prohibits the
imposition of the death penalty under § 1201(a), but that
decision neither fashioned a new standard for judging the
validity of guilty pleas nor mandated a new application of the
test theretofore fashioned by courts and since reiterated that
guilty pleas are valid if both ‘voluntary’ and ‘intelligent.’
That a guilty plea is a grave and solemn act to be accepted
only with care and discernment has long been recognized.
Central to the plea and the foundation for entering judgment
against the defendant is the defendant’s admission in open
court that he committed the acts charged in the indictment.
He thus stands as a witness against himself and he is shielded
by the Fifth Amendment from being compelled to do so—
hence the minimum requirement that his plea be the
voluntary expression of his own choice. But the plea is more
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than an admission of past conduct; it is the defendant’s
consent that judgment of conviction may be entered without a
trial—a waiver of his right to trial before a jury or a judge.
Waivers of constitutional rights not only must be voluntary
but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely
consequences. On neither score was Brady’s plea of guilty
invalid.
II
The trial judge in 1959 found the plea voluntary before
accepting it; the District Court in 1968, after an evidentiary
hearing, found that the plea was voluntarily made; the Court
of Appeals specifically approved the finding of voluntariness.
We see no reason on this record to disturb the judgment of
those courts. Petitioner, advised by competent counsel,
tendered his plea after his codefendant, who had already
given a confession, determined to plead guilty and became
available to testify against petitioner. It was this development
that the District Court found to have triggered Brady’s guilty
plea.
The voluntariness of Brady’s plea can be determined only
by considering all of the relevant circumstances surrounding
it. One of these circumstances was the possibility of a heavier
sentence following a guilty verdict after a trial. It may be that
Brady, faced with a strong case against him and recognizing
that his chances for acquittal were slight, preferred to plead
guilty and thus limit the penalty to life imprisonment rather
than to elect a jury trial which could result in a death penalty.
But even if we assume that Brady would not have pleaded
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guilty except for the death penalty provision of § 1201(a), this
assumption merely identifies the penalty provision as a ‘but
for’ cause of his plea. That the statute caused the plea in this
sense does not necessarily prove that the plea was coerced
and invalid as an involuntary act.
The State to some degree encourages pleas of guilty at
every important step in the criminal process. For some
people, their breach of a State’s law is alone sufficient reason
for surrendering themselves and accepting punishment. For
others, apprehension and charge, both threatening acts by the
Government, jar them into admitting their guilt. In still other
cases, the post-indictment accumulation of evidence may
convince the defendant and his counsel that a trial is not
worth the agony and expense to the defendant and his family.
All these pleas of guilty are valid in spite of the State’s
responsibility for some of the factors motivating the pleas; the
pleas are no more improperly compelled than is the decision
by a defendant at the close of the State’s evidence at trial that
he must take the stand or face certain conviction.
Of course, the agents of the State may not produce a plea
by actual or threatened physical harm or by mental coercion
overbearing the will of the defendant. But nothing of the sort
is claimed in this case; nor is there evidence that Brady was so
gripped by fear of the death penalty or hope of leniency that
he did not or could not, with the help of counsel, rationally
weigh the advantages of going to trial against the advantages
of pleading guilty. Brady’s claim is of a different sort: that it
violates the Fifth Amendment to influence or encourage a
guilty plea by opportunity or promise of leniency and that a
guilty plea is coerced and invalid if influenced by the fear of a
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possibly higher penalty for the crime charged if a conviction is
obtained after the State is put to its proof.
Insofar as the voluntariness of his plea is concerned, there is
little to differentiate Brady from (1) the defendant, in a
jurisdiction where the judge and jury have the same range of
sentencing power, who pleads guilty because his lawyer
advises him that the judge will very probably be more lenient
than the jury; (2) the defendant, in a jurisdiction where the
judge alone has sentencing power, who is advised by counsel
that the judge is normally more lenient with defendants who
plead guilty than with those who go to trial; (3) the defendant
who is permitted by prosecutor and judge to plead guilty to a
lesser offense included in the offense charged; and (4) the
defendant who pleads guilty to certain counts with the
understanding that other charges will be dropped. In each of
these situations, as in Brady’s case, the defendant might never
plead guilty absent the possibility or certainty that the plea
will result in a lesser penalty than the sentence that could be
imposed after a trial and a verdict of guilty. We decline to
hold, however, that a guilty plea is compelled and invalid
under the Fifth Amendment whenever motivated by the
defendant’s desire to accept the certainty or probability of a
lesser penalty rather than face a wider range of possibilities
extending from acquittal to conviction and a higher penalty
authorized by law for the crime charged.
The issue we deal with is inherent in the criminal law and
its administration because guilty pleas are not constitutionally
forbidden, because the criminal law characteristically extends
to judge or jury a range of choice in setting the sentence in
individual cases, and because both the State and the
defendant often find it advantageous to preclude the
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possibility of the maximum penalty authorized by law. For a
defendant who sees slight possibility of acquittal, the
advantages of pleading guilty and limiting the probable
penalty are obvious—his exposure is reduced, the
correctional processes can begin immediately, and the
practical burdens of a trial are eliminated. For the State there
are also advantages—the more promptly imposed punishment
after an admission of guilt may more effectively attain the
objectives of punishment; and with the avoidance of trial,
scarce judicial and prosecutorial resources are conserved for
those cases in which there is a substantial issue of the
defendant’s guilt or in which there is substantial doubt that
the State can sustain its burden of proof. It is this mutuality of
advantage that perhaps explains the fact that at present well
over three-fourths of the criminal convictions in this country
rest on pleas of guilty, a great many of them no doubt
motivated at least in part by the hope or assurance of a lesser
penalty than might be imposed if there were a guilty verdict
after a trial to judge or jury.
Of course, that the prevalence of guilty pleas is explainable
does not necessarily validate those pleas or the system which
produces them. But we cannot hold that it is unconstitutional
for the State to extend a benefit to a defendant who in turn
extends a substantial benefit to the State and who
demonstrates by his plea that he is ready and willing to admit
his crime and to enter the correctional system in a frame of
mind that affords hope for success in rehabilitation over a
shorter period of time than might otherwise be necessary.
A contrary holding would require the States and Federal
Government to forbid guilty pleas altogether, to provide a
single invariable penalty for each crime defined by the
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statutes, or to place the sentencing function in a separate
authority having no knowledge of the manner in which the
conviction in each case was obtained. In any event, it would
be necessary to forbid prosecutors and judges to accept guilty
pleas to selected counts, to lesser included offenses, or to
reduced charges. The Fifth Amendment does not reach so far.
Bram v. United States . . . held that the admissibility of a
confession depended upon whether it was compelled within
the meaning of the Fifth Amendment. To be admissible, a
confession must be “free and voluntary: that is, must not be
extracted by any sort of threats or violence, nor obtained by
any direct or implied promises, however slight, nor by the
exertion of any improper influence.” More recently, Malloy v.
Hogan . . . carried forward the Bram definition of compulsion
in the course of holding applicable to the States the Fifth
Amendment privilege against compelled self-incrimination.
Bram is not inconsistent with our holding that Brady’s plea
was not compelled even though the law promised him a lesser
maximum penalty if he did not go to trial. Bram dealt with a
confession given by a defendant in custody, alone and
unrepresented by counsel. In such circumstances, even a mild
promise of leniency was deemed sufficient to bar the
confession, not because the promise was an illegal act as such,
but because defendants at such times are too sensitive to
inducement and the possible impact on them too great to
ignore and too difficult to assess. But Bram and its progeny
did not hold that the possibly coercive impact of a promise of
leniency could not be dissipated by the presence and advice of
counsel, any more than Miranda v. Arizona . . . held that the
possibly coercive atmosphere of the police station could not
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be counteracted by the presence of counsel or other
safeguards.
Brady’s situation bears no resemblance to Bram’s. Brady
first pleaded not guilty; prior to changing his plea to guilty he
was subjected to no threats or promises in face-to-face
encounters with the authorities. He had competent counsel
and full opportunity to assess the advantages and
disadvantages of a trial as compared with those attending a
plea of guilty; there was no hazard of an impulsive and
improvident response to a seeming but unreal advantage. His
plea of guilty was entered in open court and before a judge
obviously sensitive to the requirements of the law with
respect to guilty pleas. Brady’s plea, unlike Bram’s confession,
was voluntary.
The standard as to the voluntariness of guilty pleas must be
essentially that defined by Judge Tuttle of the Court of
Appeals for the Fifth Circuit:
“(A) plea of guilty entered by one fully aware of the
direct consequences, including the actual value of any
commitments made to him by the court, prosecutor, or
his own counsel, must stand unless induced by threats
(or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their
nature improper as having no proper relationship to the
prosecutor’s business (e.g. bribes).’
Under this standard, a plea of guilty is not invalid merely
because entered to avoid the possibility of a death penalty.
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III
The record before us also supports the conclusion that
Brady’s plea was intelligently made. He was advised by
competent counsel, he was made aware of the nature of the
charge against him, and there was nothing to indicate that he
was incompetent or otherwise not in control of his mental
faculties; once his confederate had pleaded guilty and became
available to testify, he chose to plead guilty, perhaps to ensure
that he would face no more than life imprisonment or a term
of years. Brady was aware of precisely what he was doing
when he admitted that he had kidnaped the victim and had
not released her unharmed.
It is true that Brady’s counsel advised him that § 1201(a)
empowered the jury to impose the death penalty and that nine
years later in United States v. Jackson, . . . the Court held that
the jury had no such power as long as the judge could impose
only a lesser penalty if trial was to the court or there was a
plea of guilty. But these facts do not require us to set aside
Brady’s conviction.
Often the decision to plead guilty is heavily influenced by
the defendant’s appraisal of the prosecution’s case against him
and by the apparent likelihood of securing leniency should a
guilty plea be offered and accepted. Considerations like these
frequently present imponderable questions for which there
are no certain answers; judgments may be made that in the
light of later events seem improvident, although they were
perfectly sensible at the time. The rule that a plea must be
intelligently made to be valid does not require that a plea be
vulnerable to later attack if the defendant did not correctly
assess every relevant factor entering into his decision. A
defendant is not entitled to withdraw his plea merely because
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he discovers long after the plea has been accepted that his
calculus misapprehended the quality of the State’s case or the
likely penalties attached to alternative courses of action. More
particularly, absent misrepresentation or other impermissible
conduct by state agents, . . . a voluntary plea of guilty
intelligently made in the light of the then applicable law does
not become vulnerable because later judicial decisions
indicate that the plea rested on a faulty premise. A plea of
guilty triggered by the expectations of a competently
counseled defendant that the State will have a strong case
against him is not subject to later attack because the
defendant’s lawyer correctly advised him with respect to the
then existing law as to possible penalties but later
pronouncements of the courts, as in this case, hold that the
maximum penalty for the crime in question was less than was
reasonably assumed at the time the plea was entered.
The fact that Brady did not anticipate United States v.
Jackson, . . . does not impugn the truth or reliability of his
plea. We find no requirement in the Constitution that a
defendant must be permitted to disown his solemn admissions
in open court that he committed the act with which he is
charged simply because it later develops that the State would
have had a weaker case than the defendant had thought or
that the maximum penalty then assumed applicable has been
held inapplicable in subsequent judicial decisions.
This is not to say that guilty plea convictions hold no
hazards for the innocent or that the methods of taking guilty
pleas presently employed in this country are necessarily valid
in all respects. This mode of conviction is no more foolproof
than full trials to the court or to the jury. Accordingly, we take
great precautions against unsound results, and we should
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continue to do so, whether conviction is by plea or by trial.
We would have serious doubts about this case if the
encouragement of guilty pleas by offers of leniency
substantially increased the likelihood that defendants, advised
by competent counsel, would falsely condemn themselves. But
our view is to the contrary and is based on our expectations
that courts will satisfy themselves that pleas of guilty are
voluntarily and intelligently made by competent defendants
with adequate advice of counsel and that there is nothing to
question the accuracy and reliability of the defendants’
admissions that they committed the crimes with which they
are charged. In the case before us, nothing in the record
impeaches Brady’s plea or suggests that his admissions in
open court were anything but the truth.
Although Brady’s plea of guilty may well have been
motivated in part by a desire to avoid a possible death penalty,
we are convinced that his plea was voluntarily and
intelligently made and we have no reason to doubt that his
solemn admission of guilt was truthful.
Affirmed.
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Reading 6: Fairness and
Distributive Justice
For this section, please read Julian Lamont and Christi
Favor’s entry on Distributive Justice in the Stanford
Encyclopedia of Philosophy: https://plato.stanford.edu/
entries/justice-distributive/.
Review Topics and Questions
– What does strict egalitarianism require? What are
some easy arguments to make against it, and how might
you rebut them?
– How does Rawls Difference Principle embrace aspects
of strict egalitarianism while avoiding some of the
obvious problems?
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– What are the two orders of goods in Rawls’ theory and
how are they prioritized?
– What is the veil of ignorance, and how does this
thought experiment work? What did Rawls believe it
implied? Does it?
– Explain “luck egalitarianism” and the distinction
between ambitions (or choice) and endowments (or
brute luck).
– What are some possible utilitarian or welfare-based
arguments regarding distributive justice?
– Understand Nozick’s Entitlement Theory.
– Why is Holmes’ opinion in Pennsylvania Coal based on
distributive justice rather than efficiency?
– What constitutional text justifies the regulatory takings
doctrine, and how is a regulatory taking different from
eminent domain?
– Can you summarize the dispute between Holmes and
Brandeis?
– Why are taxes and regulations potential substitutes,
and why does Scalia argue the City of San Jose should
have proceeded by taxation?
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Pennsylvania Coal Co. v. Mahon, 260
U.S. 393 (1922)
Holmes, J.
This is a bill in equity brought by the defendants in error to
prevent the Pennsylvania Coal Company from mining under
their property in such way as to remove the supports and
cause a subsidence of the surface and of their house. The bill
sets out a deed executed by the Coal Company in 1878, under
which the plaintiffs claim. The deed conveys the surface, but
in express terms reserves the right to remove all the coal
under the same, and the grantee takes the premises with the
risk, and waives all claim for damages that may arise from
mining out the coal. But the plaintiffs say that whatever may
have been the Coal Company's rights, they were taken away
by an Act of Pennsylvania, . . . commonly known there as the
Kohler Act. The Court of Common Pleas found that if not
restrained the defendant would cause the damage to prevent
which the bill was brought, but denied an injunction, holding
that the statute if applied to this case would be
unconstitutional. On appeal the Supreme Court of the State
agreed that the defendant had contract and property rights
protected by the Constitution of the United States, but held
that the statute was a legitimate exercise of the police power
and directed a decree for the plaintiffs. A writ of error was
granted bringing the case to this Court.
The statute forbids the mining of anthracite coal in such
way as to cause the subsidence of, among other things, any
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structure used as a human habitation, with certain exceptions,
including among them land where the surface is owned by the
owner of the underlying coal and is distant more than one
hundred and fifty feet from any improved property belonging
to any other person. As applied to this case the statute is
admitted to destroy previously existing rights of property and
contract. The question is whether the police power can be
stretched so far.
Government hardly could go on if to some extent values
incident to property could not be diminished without paying
for every such change in the general law. As long recognized,
some values are enjoyed under an implied limitation and must
yield to the police power. But obviously the implied limitation
must have its limits, or the contract and due process clauses
are gone. One fact for consideration in determining such
limits is the extent of the diminution. When it reaches a
certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to sustain the
act. So the question depends upon the particular facts. The
greatest weight is given to the judgment of the legislature, but
it always is open to interested parties to contend that the
legislature has gone beyond its constitutional power.
This is the case of a single private house. No doubt there is
a public interest even in this, as there is in every purchase and
sale and in all that happens within the commonwealth. Some
existing rights may be modified even in such a case. But
usually in ordinary private affairs the public interest does not
warrant much of this kind of interference. A source of damage
to such a house is not a public nuisance even if similar damage
is inflicted on others in different places. The damage is not
common or public. The extent of the public interest is shown
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by the statute to be limited, since the statute ordinarily does
not apply to land when the surface is owned by the owner of
the coal. Furthermore, it is not justified as a protection of
personal safety. That could be provided for by notice. Indeed
the very foundation of this bill is that the defendant gave
timely notice of its intent to mine under the house. On the
other hand the extent of the taking is great. It purports to
abolish what is recognized in Pennsylvania as an estate in
land — a very valuable estate — and what is declared by the
Court below to be a contract hitherto binding the plaintiffs. If
we were called upon to deal with the plaintiffs' position alone,
we should think it clear that the statute does not disclose a
public interest sufficient to warrant so extensive a destruction
of the defendant's constitutionally protected rights.
But the case has been treated as one in which the general
validity of the act should be discussed. The Attorney General
of the State, the City of Scranton, and the representatives of
other extensive interests were allowed to take part in the
argument below and have submitted their contentions here. It
seems, therefore, to be our duty to go farther in the statement
of our opinion, in order that it may be known at once, and
that further suits should not be brought in vain.
It is our opinion that the act cannot be sustained as an
exercise of the police power, so far as it affects the mining of
coal under streets or cities in places where the right to mine
such coal has been reserved. As said in a Pennsylvania case,
"For practical purposes, the right to coal consists in the right
to mine it." What makes the right to mine coal valuable is that
it can be exercised with profit. To make it commercially
impracticable to mine certain coal has very nearly the same
effect for constitutional purposes as appropriating or
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destroying it. This we think that we are warranted in
assuming that the statute does.
It is true that in Plymouth Coal Co. v. Pennsylvania . . . it was
held competent for the legislature to require a pillar of coal to
be left along the line of adjoining property, that, with the
pillar on the other side of the line, would be a barrier
sufficient for the safety of the employees of either mine in case
the other should be abandoned and allowed to fill with water.
But that was a requirement for the safety of employees invited
into the mine, and secured an average reciprocity of
advantage that has been recognized as a justification of
various laws.
The rights of the public in a street purchased or laid out by
eminent domain are those that it has paid for. If in any case its
representatives have been so short sighted as to acquire only
surface rights without the right of support, we see no more
authority for supplying the latter without compensation than
there was for taking the right of way in the first place and
refusing to pay for it because the public wanted it very much.
The protection of private property in the Fifth Amendment
presupposes that it is wanted for public use, but provides that
it shall not be taken for such use without compensation. A
similar assumption is made in the decisions upon the
Fourteenth Amendment. When this seemingly absolute
protection is found to be qualified by the police power, the
natural tendency of human nature is to extend the
qualification more and more until at last private property
disappears. But that cannot be accomplished in this way
under the Constitution of the United States.
The general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too far it will
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be recognized as a taking. It may be doubted how far
exceptional cases, like the blowing up of a house to stop a
conflagration, go — and if they go beyond the general rule,
whether they do not stand as much upon tradition as upon
principle. In general it is not plain that a man's misfortunes or
necessities will justify his shifting the damages to his
neighbor's shoulders. We are in danger of forgetting that a
strong public desire to improve the public condition is not
enough to warrant achieving the desire by a shorter cut than
the constitutional way of paying for the change. As we
already have said, this is a question of degree — and therefore
cannot be disposed of by general propositions. But we regard
this as going beyond any of the cases decided by this Court.
The late decisions upon laws dealing with the congestion of
Washington and New York, caused by the war, dealt with
laws intended to meet a temporary emergency and providing
for compensation determined to be reasonable by an impartial
board. They went to the verge of the law but fell far short of
the present act.
We assume, of course, that the statute was passed upon the
conviction that an exigency existed that would warrant it, and
we assume that an exigency exists that would warrant the
exercise of eminent domain. But the question at bottom is
upon whom the loss of the changes desired should fall. So far
as private persons or communities have seen fit to take the
risk of acquiring only surface rights, we cannot see that the
fact that their risk has become a danger warrants the giving to
them greater rights than they bought.
Decree reversed.
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MR. JUSTICE BRANDEIS, dissenting.
The Kohler Act prohibits, under certain conditions, the
mining of anthracite coal within the limits of a city in such a
manner or to such an extent "as to cause the . . . subsidence of
any dwelling or other structure used as a human habitation,
or any factory, store, or other industrial or mercantile
establishment in which human labor is employed." Coal in
place is land; and the right of the owner to use his land is not
absolute. He may not so use it as to create a public nuisance;
and uses, once harmless, may, owing to changed conditions,
seriously threaten the public welfare. Whenever they do, the
legislature has power to prohibit such uses without paying
compensation; and the power to prohibit extends alike to the
manner, the character and the purpose of the use. Are we
justified in declaring that the Legislature of Pennsylvania has,
in restricting the right to mine anthracite, exercised this
power so arbitrarily as to violate the Fourteenth Amendment?
Every restriction upon the use of property imposed in the
exercise of the police power deprives the owner of some right
theretofore enjoyed, and is, in that sense, an abridgment by
the State of rights in property without making compensation.
But restriction imposed to protect the public health, safety or
morals from dangers threatened is not a taking. The
restriction here in question is merely the prohibition of a
noxious use. The property so restricted remains in the
possession of its owner. The State does not appropriate it or
make any use of it. The State merely prevents the owner from
making a use which interferes with paramount rights of the
public. Whenever the use prohibited ceases to be noxious —
as it may because of further change in local or social
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conditions, — the restriction will have to be removed and the
owner will again be free to enjoy his property as heretofore.
The restriction upon the use of this property can not, of
course, be lawfully imposed, unless its purpose is to protect
the public. But the purpose of a restriction does not cease to
be public, because incidentally some private persons may
thereby receive gratuitously valuable special benefits. Thus,
owners of low buildings may obtain, through statutory
restrictions upon the height of neighboring structures,
benefits equivalent to an easement of light and air.
Furthermore, a restriction, though imposed for a public
purpose, will not be lawful, unless the restriction is an
appropriate means to the public end. But to keep coal in place
is surely an appropriate means of preventing subsidence of
the surface; and ordinarily it is the only available means.
Restriction upon use does not become inappropriate as a
means, merely because it deprives the owner of the only use
to which the property can then be profitably put. The liquor
and the oleomargarine cases settled that. Nor is a restriction
imposed through exercise of the police power inappropriate
as a means, merely because the same end might be affected
through exercise of the power of eminent domain, or
otherwise at public expense. Every restriction upon the height
of buildings might be secured through acquiring by eminent
domain the right of each owner to build above the limiting
height; but it is settled that the State need not resort to that
power. If by mining anthracite coal the owner would
necessarily unloose poisonous gasses, I suppose no one would
doubt the power of the State to prevent the mining, without
buying his coal fields. And why may not the State, likewise,
without paying compensation, prohibit one from digging so
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deep or excavating so near the surface, as to expose the
community to like dangers? In the latter case, as in the
former, carrying on the business would be a public nuisance.
It is said that one fact for consideration in determining
whether the limits of the police power have been exceeded is
the extent of the resulting diminution in value; and that here
the restriction destroys existing rights of property and
contract. But values are relative. If we are to consider the
value of the coal kept in place by the restriction, we should
compare it with the value of all other parts of the land. That
is, with the value not of the coal alone, but with the value of
the whole property. The rights of an owner as against the
public are not increased by dividing the interests in his
property into surface and subsoil. The sum of the rights in the
parts can not be greater than the rights in the whole. The
estate of an owner in land is grandiloquently described as
extending ab orco usque ad coelum. But I suppose no one would
contend that by selling his interest above one hundred feet
from the surface he could prevent the State from limiting, by
the police power, the height of structures in a city. And why
should a sale of underground rights bar the State's power?
For aught that appears the value of the coal kept in place by
the restriction may be negligible as compared with the value
of the whole property, or even as compared with that part of
it which is represented by the coal remaining in place and
which may be extracted despite the statute. Ordinarily a
police regulation, general in operation, will not be held void as
to a particular property, although proof is offered that owing
to conditions peculiar to it the restriction could not reasonably
be applied. But even if the particular facts are to govern, the
statute should, in my opinion, be upheld in this case. For the
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defendant has failed to adduce any evidence from which it
appears that to restrict its mining operations was an
unreasonable exercise of the police power. Where the surface
and the coal belong to the same person, self-interest would
ordinarily prevent mining to such an extent as to cause a
subsidence. It was, doubtless, for this reason that the
legislature, estimating the degrees of danger, deemed
statutory restriction unnecessary for the public safety under
such conditions.
It is said that this is a case of a single dwelling house; that
the restriction upon mining abolishes a valuable estate
hitherto secured by a contract with the plaintiffs; and that the
restriction upon mining cannot be justified as a protection of
personal safety, since that could be provided for by notice.
The propriety of deferring a good deal to tribunals on the spot
has been repeatedly recognized. May we say that notice
would afford adequate protection of the public safety where
the legislature and the highest court of the State, with greater
knowledge of local conditions, have declared, in effect, that it
would not? If public safety is imperiled, surely neither grant,
nor contract, can prevail against the exercise of the police
power. The rule that the State's power to take appropriate
measures to guard the safety of all who may be within its
jurisdiction may not he bargained away was applied to compel
carriers to establish grade crossings at their own expense,
despite contracts to the contrary; . . . and, likewise, to
supersede, by an employers' liability act, the provision of a
charter exempting a railroad from liability for death of
employees, since the civil liability was deemed a matter of
public concern, and not a mere private right. Nor can existing
contracts between private individuals preclude exercise of the
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police power. "One whose rights, such as they are, are subject
to state restriction, cannot remove them from the power of the
State by making a contract about them." The fact that this suit
is brought by a private person is, of course, immaterial to
protect the community through invoking the aid, as litigant, of
interested private citizens is not a novelty in our law. That it
may be done in Pennsylvania was decided by its Supreme
Court in this case. And it is for a State to say how its public
policy shall be enforced.
This case involves only mining which causes subsidence of
a dwelling house. But the Kohler Act contains provisions in
addition to that quoted above; and as to these, also, an
opinion is expressed. These provisions deal with mining under
cities to such an extent as to cause subsidence of —
(a) Any public building or any structure customarily used
by the public as a place of resort, assemblage, or amusement,
including, but not being limited to, churches, schools,
hospitals, theatres, hotels, and railroad stations.
(b) Any street, road, bridge, or other public passageway,
dedicated to public use or habitually used by the public.
(c) Any track, roadbed, right of way, pipe, conduct, wire, or
other facility, used in the service of the public by any
municipal corporation or public service company as defined
by the Public Service Company Law.
A prohibition of mining which causes subsidence of such
structures and facilities is obviously enacted for a public
purpose; and it seems, likewise, clear that mere notice of
intention to mine would not in this connection secure the
public safety. Yet it is said that these provisions of the act
cannot be sustained as an exercise of the police power where
the right to mine such coal has been reserved. The conclusion
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seems to rest upon the assumption that in order to justify such
exercise of the police power there must be "an average
reciprocity of advantage" as between the owner of the
property restricted and the rest of the community; and that
here such reciprocity is absent. Reciprocity of advantage is an
important consideration, and may even be an essential, where
the State's power is exercised for the purpose of conferring
benefits upon the property of a neighborhood, as in drainage
projects . . . or upon adjoining owners, as by party wall
provisions. . . . But where the police power is exercised, not to
confer benefits upon property owners, but to protect the
public from detriment and danger, there is, in my opinion, no
room for considering reciprocity of advantage. There was no
reciprocal advantage to the owner prohibited from using his
oil tanks . . . his brickyard . . . his livery stable . . . his billiard
hall . . . his oleomargarine factory . . . his brewery . . . unless it
be the advantage of living and doing business in a civilized
community. That reciprocal advantage is given by the act to
the coal operators.
Pennell v. City of San Jose, 485
U.S. 1 (1998)
Chief Justice REHNQUIST delivered the opinion
of the Court.
This case involves a challenge to a rent control ordinance
enacted by the city of San Jose, California, that allows a
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hearing officer to consider, among other factors, the “hardship
to a tenant” when determining whether to approve a rent
increase proposed by a landlord. Appellants Richard Pennell
and the Tri–County Apartment House Owners Association
sued in the Superior Court of Santa Clara County seeking a
declaration that the ordinance, in particular the “tenant
hardship” provisions, are “facially unconstitutional and
therefore . . . illegal and void.” The Superior Court entered
judgment on the pleadings in favor of appellants, sustaining
their claim that the tenant hardship provisions violated the
Takings Clause of the Fifth Amendment, as made applicable
to the States by the Fourteenth Amendment. The California
Court of Appeal affirmed this judgment, . . . but the Supreme
Court of California reversed, . . . each by a divided vote. The
majority of the Supreme Court rejected appellants’ arguments
under the Takings Clause and the Equal Protection and Due
Process Clauses of the Fourteenth Amendment; the dissenters
in that court thought that the tenant hardship provisions were
a “forced subsidy imposed on the landlord” in violation of the
Takings Clause. On appellants’ appeal to this Court we
postponed consideration of the question of jurisdiction, . . .
and now having heard oral argument we affirm the judgment
of the Supreme Court of California.
The city of San Jose enacted its rent control ordinance
(Ordinance) in 1979 with the stated purpose of
“alleviat[ing] some of the more immediate needs created
by San Jose’s housing situation. These needs include but
are not limited to the prevention of excessive and
unreasonable rent increases, the alleviation of undue
hardships upon individual tenants, and the assurance to
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landlords of a fair and reasonable return on the value of
their property.”
At the heart of the Ordinance is a mechanism for determining
the amount by which landlords subject to its provisions may
increase the annual rent which they charge their tenants. A
landlord is automatically entitled to raise the rent of a tenant
in possession by as much as eight percent; if a tenant objects
to an increase greater than eight percent, a hearing is required
before a “Mediation Hearing Officer” to determine whether
the landlord’s proposed increase is “reasonable under the
circumstances.” The Ordinance sets forth a number of factors
to be considered by the hearing officer in making this
determination, including “the hardship to a tenant.” Because
appellants concentrate their attack on the consideration of
this factor, we set forth the relevant provision of the
Ordinance in full:
“5703.29. Hardship to Tenants. In the case of a rent
increase or any portion thereof which exceeds the
standard set in Section 5703.28(a) or (b), then with
respect to such excess and whether or not to allow same to
be part of the increase allowed under this Chapter, the
Hearing Officer shall consider the economic and
financial hardship imposed on the present tenant or
tenants of the unit or units to which such increases
apply. If, on balance, the Hearing Officer determines
that the proposed increase constitutes an unreasonably
severe financial or economic hardship on a particular
tenant, he may order that the excess of the increase which
is subject to consideration under subparagraph (c) of
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Section 5703.28, or any portion thereof, be disallowed.
Any tenant whose household income and monthly
housing expense meets [certain income requirements]
shall be deemed to be suffering under financial and
economic hardship which must be weighed in the Hearing
Officer’s determination. The burden of proof in
establishing any other economic hardship shall be on the
tenant.”
If either a tenant or a landlord is dissatisfied with the decision
of the hearing officer, the Ordinance provides for binding
arbitration. A landlord who attempts to charge or who
receives rent in excess of the maximum rent established as
provided in the Ordinance is subject to criminal and civil
penalties.
[The Court’s discussion concerning whether the appellants
lacked standing to challenge the Ordinance is omitted.]
Turning now to the merits, we first address appellants’
contention that application of the Ordinance’s tenant hardship
provisions violates the Fifth and Fourteenth Amendments’
prohibition against taking of private property for public use
without just compensation. In essence, appellants’ claim is as
follows: § 5703.28 of the Ordinance establishes the seven
factors that a hearing officer is to take into account in
determining the reasonable rent increase. The first six of these
factors are all objective, and are related either to the
landlord’s costs of providing an adequate rental unit, or to the
condition of the rental market. Application of these six
standards results in a rent that is “reasonable” by reference to
what appellants contend is the only legitimate purpose of rent
control: the elimination of “excessive” rents caused by San
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Jose’s housing shortage. When the hearing officer then takes
into account “hardship to a tenant” pursuant to § 5703.28(c)
(7) and reduces the rent below the objectively “reasonable”
amount established by the first six factors, this additional
reduction in the rent increase constitutes a “taking.” This
taking is impermissible because it does not serve the purpose
of eliminating excessive rents—that objective has already
been accomplished by considering the first six factors—
instead, it serves only the purpose of providing assistance to
“hardship tenants.” In short, appellants contend, the
additional reduction of rent on grounds of hardship
accomplishes a transfer of the landlord’s property to
individual hardship tenants; the Ordinance forces private
individuals to shoulder the “public” burden of subsidizing
their poor tenants’ housing. As appellants point out, “[i]t is
axiomatic that the Fifth Amendment’s just compensation
provision is ‘designed to bar Government from forcing some
people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.’ ”
We think it would be premature to consider this contention
on the present record. As things stand, there simply is no
evidence that the “tenant hardship clause” has in fact ever
been relied upon by a hearing officer to reduce a rent below
the figure it would have been set at on the basis of the other
factors set forth in the Ordinance. In addition, there is
nothing in the Ordinance requiring that a hearing officer in
fact reduce a proposed rent increase on grounds of tenant
hardship. Section 5703.29 does make it mandatory that
hardship be considered—it states that “the Hearing Officer
shall consider the economic hardship imposed on the present
tenant”—but it then goes on to state that if “the proposed
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increase constitutes an unreasonably severe financial or
economic hardship . . . he may order that the excess of the
increase” be disallowed. (emphasis added). Given the
“essentially ad hoc, factual inquir[y]” involved in the takings
analysis, . . . we have found it particularly important in
takings cases to adhere to our admonition that “the
constitutionality of statutes ought not be decided except in an
actual factual setting that makes such a decision necessary.”
In Virginia Surface Mining, for example, we found that a
challenge to the Surface Mining Control and Reclamation Act
of 1977, . . . was “premature,” . . . and “not ripe for judicial
resolution,” . . . because the property owners in that case had
not identified any property that had allegedly been taken by
the Act, nor had they sought administrative relief from the
Act’s restrictions on surface mining. Similarly, in this case we
find that the mere fact that a hearing officer is enjoined to
consider hardship to the tenant in fixing a landlord’s rent,
without any showing in a particular case as to the
consequences of that injunction in the ultimate determination
of the rent, does not present a sufficiently concrete factual
setting for the adjudication of the takings claim appellants
raise here.
Appellants also urge that the mere provision in the
Ordinance that a hearing officer may consider the hardship of
the tenant in finally fixing a reasonable rent renders the
Ordinance “facially invalid” under the Due Process and
Equal Protection Clauses, even though no landlord ever has
its rent diminished by as much as one dollar because of the
application of this provision. The standard for determining
whether a state price-control regulation is constitutional
under the Due Process Clause is well established: “Price
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control is ‘unconstitutional . . . if arbitrary, discriminatory, or
demonstrably irrelevant to the policy the legislature is free to
adopt. . . .’ ” In other contexts we have recognized that the
government may intervene in the marketplace to regulate
rates or prices that are artificially inflated as a result of the
existence of a monopoly or near monopoly, . . . or a
discrepancy between supply and demand in the market for a
certain product…. Accordingly, appellants do not dispute that
the Ordinance’s asserted purpose of “prevent[ing] excessive
and unreasonable rent increases” caused by the “growing
shortage of and increasing demand for housing in the City of
San Jose,” § 5701.2, is a legitimate exercise of appellees’
police powers. They do argue, however, that it is “arbitrary,
discriminatory, or demonstrably irrelevant,” . . . for appellees
to attempt to accomplish the additional goal of reducing the
burden of housing costs on low-income tenants by requiring
that “hardship to a tenant” be considered in determining the
amount of excess rent increase that is “reasonable under the
circumstances” pursuant to § 5703.28. As appellants put it,
“[t]he objective of alleviating individual tenant hardship is . . .
not a ‘policy the legislature is free to adopt’ in a rent control
ordinance.”
We reject this contention, however, because we have long
recognized that a legitimate and rational goal of price or rate
regulation is the protection of consumer welfare. Indeed, a
primary purpose of rent control is the protection of tenants.
Here, the Ordinance establishes a scheme in which a hearing
officer considers a number of factors in determining the
reasonableness of a proposed rent increase which exceeds
eight percent and which exceeds the amount deemed
reasonable under either § 5703.28(a) or § 5703.28(b). The
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first six factors of § 5703.28(c) focus on the individual
landlord—the hearing officer examines the history of the
premises, the landlord’s costs, and the market for comparable
housing. Section 5703.28(c)(5) also allows the landlord to
bring forth any other financial evidence—including
presumably evidence regarding his own financial status—to
be taken into account by the hearing officer. It is in only this
context that the Ordinance allows tenant hardship to be
considered and, under § 5703.29, “balance[d]” with the other
factors set out in § 5703.28(c). Within this scheme, §
5703.28(c) represents a rational attempt to accommodate the
conflicting interests of protecting tenants from burdensome
rent increases while at the same time ensuring that landlords
are guaranteed a fair return on their investment. We
accordingly find that the Ordinance, which so carefully
considers both the individual circumstances of the landlord
and the tenant before determining whether to allow an
additional increase in rent over and above certain amounts
that are deemed reasonable, does not on its face violate the
Fourteenth Amendment’s Due Process Clause.
We also find that the Ordinance does not violate the
Amendment’s Equal Protection Clause. Here again, the
standard is deferential; appellees need only show that the
classification scheme embodied in the Ordinance is “rationally
related to a legitimate state interest.” As we stated in Vance v.
Bradley, . . . “we will not overturn [a statute that does not
burden a suspect class or a fundamental interest] unless the
varying treatment of different groups or persons is so
unrelated to the achievement of any combination of legitimate
purposes that we can only conclude that the legislature’s
actions were irrational.” In light of our conclusion above that
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the Ordinance’s tenant hardship provisions are designed to
serve the legitimate purpose of protecting tenants, we can
hardly conclude that it is irrational for the Ordinance to treat
certain landlords differently on the basis of whether or not
they have hardship tenants. The Ordinance distinguishes
between landlords because doing so furthers the purpose of
ensuring that individual tenants do not suffer “unreasonable”
hardship; it would be inconsistent to state that hardship is a
legitimate factor to be considered but then hold that appellees
could not tailor the Ordinance so that only legitimate
hardship cases are redressed. We recognize, as appellants
point out, that in general it is difficult to say that the landlord
“causes” the tenant’s hardship. But this is beside the point—if
a landlord does have a hardship tenant, regardless of the
reason why, it is rational for appellees to take that fact into
consideration under § 5703.28 of the Ordinance when
establishing a rent that is “reasonable under the
circumstances.”
For the foregoing reasons, we hold that it is premature to
consider appellants’ claim under the Takings Clause and we
reject their facial challenge to the Ordinance under the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment. The judgment of the Supreme Court of
California is accordingly
Affirmed.
Justice KENNEDY took no part in the consideration or
decision of this case.
Justice SCALIA, with whom Justice O’CONNOR
joins, concurring in part and dissenting in part.
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I agree that the tenant hardship provision of the Ordinance
does not, on its face, violate either the Due Process Clause or
the Equal Protection Clause of the Fourteenth Amendment. I
disagree, however, with the Court’s conclusion that
appellants’ takings claim is premature. I would decide that
claim on the merits, and would hold that the tenant hardship
provision of the Ordinance effects a taking of private
property without just compensation in violation of the Fifth
and Fourteenth Amendments.
I
[Justice Scalia argues that the Takings Clause challenge is
not premature, and as such should be adjudicated on the
merits.]
II
The Fifth Amendment of the United States Constitution,
made applicable to the States through the Fourteenth
Amendment, . . . provides that “private property [shall not] be
taken for public use, without just compensation.” We have
repeatedly observed that the purpose of this provision is “to
bar Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be
borne by the public as a whole.”
Traditional land-use regulation (short of that which totally
destroys the economic value of property) does not violate this
principle because there is a cause-and-effect relationship
between the property use restricted by the regulation and the
social evil that the regulation seeks to remedy. Since the
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owner’s use of the property is (or, but for the regulation,
would be) the source of the social problem, it cannot be said
that he has been singled out unfairly. Thus, the common
zoning regulations requiring subdividers to observe lot-size
and set-back restrictions, and to dedicate certain areas to
public streets, are in accord with our constitutional traditions
because the proposed property use would otherwise be the
cause of excessive congestion. The same cause-and-effect
relationship is popularly thought to justify emergency price
regulation: When commodities have been priced at a level that
produces exorbitant returns, the owners of those commodities
can be viewed as responsible for the economic hardship that
occurs. Whether or not that is an accurate perception of the
way a free-market economy operates, it is at least true that the
owners reap unique benefits from the situation that produces
the economic hardship, and in that respect singling them out
to relieve it may not be regarded as “unfair.” That justification
might apply to the rent regulation in the present case, apart
from the single feature under attack here.
Appellants do not contest the validity of rent regulation in
general. They acknowledge that the city may constitutionally
set a “reasonable rent” according to the statutory minimum
and the six other factors that must be considered by the
hearing officer (cost of debt servicing, rental history of the
unit, physical condition of the unit, changes in housing
services, other financial information provided by the landlord,
and market value rents for similar units). Appellants’ only
claim is that a reduction of a rent increase below what would
otherwise be a “reasonable rent” under this scheme may not,
consistently with the Constitution, be based on consideration
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of the seventh factor—the hardship to the tenant as defined in
§ 5703.29. I think they are right.
Once the other six factors of the Ordinance have been
applied to a landlord’s property, so that he is receiving only a
reasonable return, he can no longer be regarded as a “cause”
of exorbitantly priced housing; nor is he any longer reaping
distinctively high profits from the housing shortage. The
seventh factor, the “hardship” provision, is invoked to meet a
quite different social problem: the existence of some renters
who are too poor to afford even reasonably priced housing.
But that problem is no more caused or exploited by landlords
than it is by the grocers who sell needy renters their food, or
the department stores that sell them their clothes, or the
employers who pay them their wages, or the citizens of San
Jose holding the higher paying jobs from which they are
excluded. And even if the neediness of renters could be
regarded as a problem distinctively attributable to landlords
in general, it is not remotely attributable to the particular
landlords that the Ordinance singles out—namely, those who
happen to have a “hardship” tenant at the present time, or
who may happen to rent to a “hardship” tenant in the future,
or whose current or future affluent tenants may happen to
decline into the “hardship” category.
The traditional manner in which American government has
met the problem of those who cannot pay reasonable prices
for privately sold necessities—a problem caused by the
society at large—has been the distribution to such persons of
funds raised from the public at large through taxes, either in
cash (welfare payments) or in goods (public housing, publicly
subsidized housing, and food stamps). Unless we are to
abandon the guiding principle of the Takings Clause that
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“public burdens . . . should be borne by the public as a
whole,” . . . this is the only manner that our Constitution
permits. The fact that government acts through the landlordtenant relationship does not magically transform general
public welfare, which must be supported by all the public,
into mere “economic regulation,” which can
disproportionately burden particular individuals. Here the
city is not “regulating” rents in the relevant sense of
preventing rents that are excessive; rather, it is using the
occasion of rent regulation (accomplished by the rest of the
Ordinance) to establish a welfare program privately funded
by those landlords who happen to have “hardship” tenants.
Of course all economic regulation effects wealth transfer.
When excessive rents are forbidden, for example, landlords as
a class become poorer and tenants as a class (or at least
incumbent tenants as a class) become richer. Singling out
landlords to be the transferors may be within our traditional
constitutional notions of fairness, because they can plausibly
be regarded as the source or the beneficiary of the high-rent
problem. Once such a connection is no longer required,
however, there is no end to the social transformations that can
be accomplished by so-called “regulation,” at great expense to
the democratic process.
The politically attractive feature of regulation is not that it
permits wealth transfers to be achieved that could not be
achieved otherwise; but rather that it permits them to be
achieved “off budget,” with relative invisibility and thus
relative immunity from normal democratic processes. San
Jose might, for example, have accomplished something like
the result here by simply raising the real estate tax upon
rental properties and using the additional revenues thus
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acquired to pay part of the rents of “hardship” tenants. It
seems to me doubtful, however, whether the citizens of San
Jose would allow funds in the municipal treasury, from
wherever derived, to be distributed to a family of four with
income as high as $32,400 a year—the generous maximum
necessary to qualify automatically as a “hardship” tenant
under the rental Ordinance. The voters might well see other,
more pressing, social priorities. And of course what $32,400–
a-year renters can acquire through spurious “regulation,”
other groups can acquire as well. Once the door is opened it is
not unreasonable to expect price regulations requiring private
businesses to give special discounts to senior citizens (no
matter how affluent), or to students, the handicapped, or war
veterans. Subsidies for these groups may well be a good idea,
but because of the operation of the Takings Clause our
governmental system has required them to be applied, in
general, through the process of taxing and spending, where
both economic effects and competing priorities are more
evident.
That fostering of an intelligent democratic process is one of
the happy effects of the constitutional prescription—perhaps
accidental, perhaps not. Its essence, however, is simply the
unfairness of making one citizen pay, in some fashion other
than taxes, to remedy a social problem that is none of his
creation. As the Supreme Court of New Jersey said in finding
unconstitutional a scheme displaying, among other defects,
the same vice I find dispositive here:
“A legislative category of economically needy senior citizens
is sound, proper and sustainable as a rational classification.
But compelled subsidization by landlords or by tenants who
happen to live in an apartment building with senior citizens is
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an improper and unconstitutional method of solving the
problem.”
I would hold that the seventh factor in § 5703.28(c) of the
San Jose Ordinance effects a taking of property without just
compensation.
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Meeting 7: Review and Midterm
Test
Below are some practice problems covering the material we
have read and discussed thus far. In formulating your
response, read each question carefully and remember to make
an argument: giving reasons for your answer.
1. In your own words, explain why Marbury v. Madison is
such an important case and what would be different
had it come out the other way.
2. In Atkins v. Virginia in 1986, the Supreme Court
outlawed the execution of people with intellectual
disabilities, vaguely referring to defendants with IQs
below 70, as against the Eighth Amendment ban on
cruel and unusual punishments. The Court found that
many states had prohibited such executions and that
executing the disabled failed to serve the goals of
either deterrence or retribution. It concluded that
execution of the mentally disabled was therefore
Electronic copy available at: https://ssrn.com/abstract=3066994
inconsistent with our “evolving standards of decency”
and was therefore unconstitutionally excessive.
(a) Why might such executions not provide
deterrence? Is that a utilitarian or deontological
reason to oppose them?
(b) Why might such executions not be consistent with
principles of retribution? Is that a utilitarian or
deontological reason to oppose them?
3. Suppose in a federal criminal trial the state seeks to
introduce evidence in the form of grisly crime scene
photographs. Federal Rule of Evidence 403 states:
“The court may exclude relevant evidence if its
probative value is substantially outweighed by a
danger of . . . unfair prejudice . . . .” The judge decides
to allow the evidence to go to the jury, and the
defendant is convicted. On appeal to a federal circuit
court of appeals, the defendant’s lawyer wants to
argue that admission of this evidence was contrary to
the rule.
(a) Is Rule 403 a rule or a standard? Why?
(b)What is meant by the “standard of review”?
(c) What standard of review do you believe the
appellate court should apply and why?
4. Make an argument that a prayer at a law school
graduation would be constitutional, even after Lee v.
Weisman.
5. Suppose you have plans today to purchase a car.
Answer the following two questions:
(a) What does it mean to say that a transaction
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between you and a car dealer would be Pareto
efficient?
(b) What are two transaction costs you will likely
incur in your effort to purchase a car?
6. Suppose a state is considering passing a statute
requiring car dealers to include limited warranties that
would make the dealer responsible for replacing or
repairing parts that malfunction within three years of
purchase or 30,000 miles driven.
(a) Make an argument that it would be more efficient
if a state permits car dealers to sell cars as-is rather
than requiring car dealers to provide warranties. (The
state, in this hypothetical, would not require cars to be
sold as-is. Rather, it would permit dealers to choose
whether to offer warranties or sell as-is.)
(b) Make an argument that it could be more efficient
if the state required car dealers to provide the limited
warranties.
7. Identify, in each fact pattern below, whether the cause
of action is based in contract, tort, or criminal law.
(a) A slips on B’s sidewalk and sues B to recover
medical expenses and lost wages.
(b) C’s family sues B for its emotional injuries and lost
wages after B intentionally killed C.
(c) The local district attorney brings changes against
B for intentionally killing C.
8. In tort law, when a suit for injury arises from the
alleged negligence of the defendant, courts often use
something like the Learned Hand formula (from
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Carroll Towing) to determine whether the defendant
was in fact negligent and therefore liable. In contract
law, however, the defendant is liable for damages if he
or she failed to comply with the terms of a contract.
We don’t care, in contract law, whether it was
reasonable or negligent to breach the contract. Why
are both approaches, despite this key difference,
generally consistent with a goal of efficiency?
9. Suppose a town makes parking free in its commercial
district. There are not enough spaces for everyone
who would prefer, if parking were available, to shop
or dine there. Is this a tragedy of the commons? If yes,
why and how would you solve it? If no or maybe, give
additional facts that would cause you to conclude that
this was a tragedy of the commons and then offer how
you might solve the tragedy.
10. Make a Rawlsian veil argument (but not necessarily
adopting Rawls’ conclusion) for or against the result
in Pennsylvania Coal v. Mahon, the regulatory takings
case. In other words, if you conducted Rawls’ thought
experiment, would you conclude that the Kohler Act,
prohibiting coal companies from causing subsidence,
is or is not consistent with distributive justice? (Note,
as with so many questions of law, there is no particular
right answer here, just good and bad arguments.)
Which theory of distributive justice most supports the
result in Pennsylvania Coal and why?
11. In 1999, the federal Independent Counsel Act
expired. The Act required the Attorney General, head
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of the Department of Justice, to convene a panel of
federal judges to appoint a special prosecutor to
investigate substantial allegations that high-ranking
executive officials have committed federal crimes. The
special prosecutor could only be removed by
impeachment and conviction in Congress or by the
Attorney General (but only for particular reasons
related to mental or professional competence). Make
an argument that this Act was inconsistent with the
unitary executive theory of the United States
government. How would you change the Act to make
it more consistent with that theory? Would that
change have downsides?
12. Suppose that you had contracted with a company to
provide tortillas for your taqueria business. The
company agreed to provide you with a certain
quantity of fresh tortillas weekly, and you promised to
pay them a fixed amount of money monthly. One
week, you receive fewer than the agreed-upon number
of tortillas, and the ones you did receive were
repackaged tortillas that were obviously purchased at
the grocery store. After trying to contact the company
all week and failing, you and your lawyer draft a letter
(a) demanding compliance with the contract and
compensation for the bad and insufficient tortillas and
(b) outlining your legal claim. Provide the outline of
your legal claim, including the duty, breach, causation,
and damages that establish that legal claim.
13. Assume you are still the taqueria business described
in the previous question. You are now negotiating
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with another tortilla supplier. In drawing up a
contract, you must decide how to formulate your
desire to receive a sufficient number of tortillas weekly
and of sufficient quality. Given an example of how you
might draft these requirements in rule-like terms and
example of how you might draft them in standard-like
terms. What are some advantages and disadvantages
of each approach?
14. The Kohler Act that was challenged in Pennsylvania
Coal v. Mahon prohibited “the mining of anthracite coal
in such way as to cause the subsidence of, among
other things, any structure used as a human
habitation.”
(a) Argue that this statute was consistent with
utilitarianism but indicate what additional facts you
would like to have to bolster this argument.
(b) Argue both for and against the proposition that
the statute is consistent with Kant's categorical
imperative.
15. Suppose a family has installed solar panels on its
house. Some time later a new neighbor proposes to
build a house compliant with all applicable building
and zoning ordinances but which would block the
light reaching the solar panels. Family would consider
suing for nuisance, as in Boomer v. Atlantic Cement, to
stop this particular building plan.
(a) Would this suit be in tort, contract, or criminal
law, or something else? Why?
(b)If the assumptions of the Coase Theorem apply,
what should a court decide if a nuisance suit is
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brought? Why?
(c) Why might those assumptions not apply?
(d) What would you decide if you were the judge, and
are your reasons grounded in terms of efficiency or
distributive justice?
16. Suppose the manufacturer of a carnival ride called
“The Shaker” is sued by the plaintiff after she was
injured on the ride. The Shaker did not malfunction,
but, as its name suggests, the Shaker shakes riders
with considerable force and is popular for that reason.
Plaintiff, though not suffering from any known
ailment, suffered a painful bone fracture on the ride
and has required medical care and physical therapy.
She alleges her physical injuries were due to the
negligence of the manufacturer because the
manufacturer should have foreseen the potential for
injury.
(a) Explain how you would apply the Learned Hand
formula to determine whether the defendant
manufacturer was negligent, including what facts you
would want to know and how you would use them.
(b) Discuss how the Escola majority and concurrence
each might approach the question of liability in this
case.
17. In the Gulf of Mexico, there is an active fishery for
Red Snapper. Decades ago, it was lightly regulated,
and over time more and more fish were caught
annually. Eventually, with better methods and more
boats, the catch began to decline as the breeding stock
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was depleted by an increasing number of sport and
commercial fishermen. Policymaker and scientists call
the the maximum quantity of fish that can be
harvested on an ongoing basis (without costly declines
in the stock of fish) the optimal sustainable yield.
(a) Explain why this situation presents a tragedy of
the commons.
(b) For years, federal regulators constrained the per
day catch limit, shortened fishing seasons, and
regulated the types of equipment that could be used.
What element of the tragedy of the commons are such
regulations aimed at averting?
(c) The above measures proved ineffective. It got so
bad that at one point the “season” for red snapper
lasted only a day or two. The regulators instead
introduced “individual transferable quotas,” which are
rights to catch a fixed number of tons of fish. Each
year, the regulators set the total tonnage of fish
available for catch to be consistent with the optimal
sustainable yield. Then quotas are granted that
represent a portion of the total. These quotas could be
bought and sold, but the fish you catch are assessed
against your quota. What element of the tragedy of the
commons is this scheme aimed at averting? Do you
think it will successfully do so? Why or why not?
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Meeting 8: Courts and Precedent
Review Questions
– What is the source of the right the Court adjudicates in
Casey?
– What theory of justice most comports with the
reasoning in the opinion?
– What is the doctrine of stare decisis? Why is adherence
to precedent important?
– What criteria does the Court identify to guide its
decision whether to depart from precedent?
– What is the Court’s rule and to what does it apply?
How do they apply it to the state laws at issue?
Electronic copy available at: https://ssrn.com/abstract=3066994
– What are the main dissenting arguments and on what
theories of interpretation do they rely?
Planned Parenthood of
Southeastern Pennsylvania v.
Casey, 505 U.S. 833 (1992)
Justice O’CONNOR, Justice KENNEDY, and Justice
SOUTER announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I,
II, III, V–A, V–C, and VI, an opinion with respect to Part
V–E, in which Justice STEVENS joins, and an opinion
with respect to Parts IV, V–B, and V–D.
I
Liberty finds no refuge in a jurisprudence of doubt. Yet 19
years after our holding that the Constitution protects a
woman’s right to terminate her pregnancy in its early stages,
Roe v. Wade . . . that definition of liberty is still questioned.
Joining the respondents as amicus curiae, the United States,
as it has done in five other cases in the last decade, again asks
us to overrule Roe.
At issue in these cases are five provisions of the
Pennsylvania Abortion Control Act of 1982, as amended in
1988 and 1989. Relevant portions of the Act are set forth in
the Appendix. The Act requires that a woman seeking an
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abortion give her informed consent prior to the abortion
procedure, and specifies that she be provided with certain
information at least 24 hours before the abortion is
performed. For a minor to obtain an abortion, the Act
requires the informed consent of one of her parents, but
provides for a judicial bypass option if the minor does not
wish to or cannot obtain a parent’s consent. Another provision
of the Act requires that, unless certain exceptions apply, a
married woman seeking an abortion must sign a statement
indicating that she has notified her husband of her intended
abortion. The Act exempts compliance with these three
requirements in the event of a “medical emergency”. In
addition to the above provisions regulating the performance
of abortions, the Act imposes certain reporting requirements
on facilities that provide abortion services.
Before any of these provisions took effect, the petitioners,
who are five abortion clinics and one physician representing
himself as well as a class of physicians who provide abortion
services, brought this suit seeking declaratory and injunctive
relief. Each provision was challenged as unconstitutional on
its face. The District Court entered a preliminary injunction
against the enforcement of the regulations, and, after a 3–day
bench trial, held all the provisions at issue here
unconstitutional, entering a permanent injunction against
Pennsylvania’s enforcement of them. The Court of Appeals
for the Third Circuit affirmed in part and reversed in part,
upholding all of the regulations except for the husband
notification requirement. We granted certiorari.
[Justice O’Connor highlights the need for clarification in
light of the Court’s disagreement with the Court of Appeals’
reasoning.] [We] find it imperative to review once more the
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principles that define the rights of the woman and the
legitimate authority of the State respecting the termination of
pregnancies by abortion procedures.
After considering the fundamental constitutional questions
resolved by Roe, principles of institutional integrity, and the
rule of stare decisis, we are led to conclude this: the essential
holding of Roe v. Wade should be retained and once again
reaffirmed.
It must be stated at the outset and with clarity that Roe’s
essential holding, the holding we reaffirm, has three parts.
First is a recognition of the right of the woman to choose to
have an abortion before viability and to obtain it without
undue interference from the State. Before viability, the State’s
interests are not strong enough to support a prohibition of
abortion or the imposition of a substantial obstacle to the
woman’s effective right to elect the procedure. Second is a
confirmation of the State’s power to restrict abortions after
fetal viability, if the law contains exceptions for pregnancies
which endanger the woman’s life or health. And third is the
principle that the State has legitimate interests from the outset
of the pregnancy in protecting the health of the woman and
the life of the fetus that may become a child. These principles
do not contradict one another; and we adhere to each.
II
Constitutional protection of the woman’s decision to terminate
her pregnancy derives from the Due Process Clause of the
Fourteenth Amendment. It declares that no State shall
“deprive any person of life, liberty, or property, without due
process of law.” The controlling word in the cases before us is
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“liberty.” Although a literal reading of the Clause might
suggest that it governs only the procedures by which a State
may deprive persons of liberty, for at least 105 years . . . the
Clause has been understood to contain a substantive
component as well, one “barring certain government actions
regardless of the fairness of the procedures used to implement
them.” As Justice Brandeis (joined by Justice Holmes)
observed, “[d]espite arguments to the contrary which had
seemed to me persuasive, it is settled that the due process
clause of the Fourteenth Amendment applies to matters of
substantive law as well as to matters of procedure. Thus all
fundamental rights comprised within the term liberty are
protected by the Federal Constitution from invasion by the
States.” “[T]he guaranties of due process, though having their
roots in Magna Carta’s ‘per legem terrae’ and considered as
procedural safeguards ‘against executive usurpation and
tyranny,’ have in this country ‘become bulwarks also against
arbitrary legislation.’ ”
The most familiar of the substantive liberties protected by
the Fourteenth Amendment are those recognized by the Bill
of Rights. We have held that the Due Process Clause of the
Fourteenth Amendment incorporates most of the Bill of
Rights against the States. It is tempting, as a means of curbing
the discretion of federal judges, to suppose that liberty
encompasses no more than those rights already guaranteed to
the individual against federal interference by the express
provisions of the first eight Amendments to the Constitution.
But of course this Court has never accepted that view.
It is also tempting, for the same reason, to suppose that the
Due Process Clause protects only those practices, defined at
the most specific level, that were protected against
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government interference by other rules of law when the
Fourteenth Amendment was ratified. But such a view would
be inconsistent with our law. It is a promise of the
Constitution that there is a realm of personal liberty which the
government may not enter. We have vindicated this principle
before. Marriage is mentioned nowhere in the Bill of Rights
and interracial marriage was illegal in most States in the 19th
century, but the Court was no doubt correct in finding it to be
an aspect of liberty protected against state interference by the
substantive component of the Due Process Clause in Loving v.
Virginia . . . .
Neither the Bill of Rights nor the specific practices of States
at the time of the adoption of the Fourteenth Amendment
marks the outer limits of the substantive sphere of liberty
which the Fourteenth Amendment protects. As the second
Justice Harlan recognized:
“[T]he full scope of the liberty guaranteed by the Due
Process Clause cannot be found in or limited by the precise
terms of the specific guarantees elsewhere provided in the
Constitution. This ‘liberty’ is not a series of isolated points
pricked out in terms of the taking of property; the freedom of
speech, press, and religion; the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so
on. It is a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions
and purposeless restraints, . . . and which also recognizes,
what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state
needs asserted to justify their abridgment.”
Justice Harlan wrote these words in addressing an issue
the full Court did not reach in Poe v. Ullman, but the Court
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adopted his position four Terms later in Griswold v. Connecticut .
. . . In Griswold, we held that the Constitution does not permit
a State to forbid a married couple to use contraceptives. That
same freedom was later guaranteed, under the Equal
Protection Clause, for unmarried couples. Constitutional
protection was extended to the sale and distribution of
contraceptives in Carey v. Population Services International . . . . It
is settled now, as it was when the Court heard arguments in
Roe v. Wade, that the Constitution places limits on a State’s
right to interfere with a person’s most basic decisions about
family and parenthood . . . .
The inescapable fact is that adjudication of substantive due
process claims may call upon the Court in interpreting the
Constitution to exercise that same capacity which by tradition
courts always have exercised: reasoned judgment. Its
boundaries are not susceptible of expression as a simple rule.
That does not mean we are free to invalidate state policy
choices with which we disagree; yet neither does it permit us
to shrink from the duties of our office. As Justice Harlan
observed:
“Due process has not been reduced to any formula; its
content cannot be determined by reference to any code. The
best that can be said is that through the course of this Court’s
decisions it has represented the balance which our Nation,
built upon postulates of respect for the liberty of the
individual, has struck between that liberty and the demands
of organized society. If the supplying of content to this
Constitutional concept has of necessity been a rational
process, it certainly has not been one where judges have felt
free to roam where unguided speculation might take them.
The balance of which I speak is the balance struck by this
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country, having regard to what history teaches are the
traditions from which it developed as well as the traditions
from which it broke. That tradition is a living thing. A
decision of this Court which radically departs from it could
not long survive, while a decision which builds on what has
survived is likely to be sound. No formula could serve as a
substitute, in this area, for judgment and restraint.”
[. . .]
Men and women of good conscience can disagree, and we
suppose some always shall disagree, about the profound
moral and spiritual implications of terminating a pregnancy,
even in its earliest stage. Some of us as individuals find
abortion offensive to our most basic principles of morality, but
that cannot control our decision. Our obligation is to define
the liberty of all, not to mandate our own moral code. The
underlying constitutional issue is whether the State can
resolve these philosophic questions in such a definitive way
that a woman lacks all choice in the matter, except perhaps in
those rare circumstances in which the pregnancy is itself a
danger to her own life or health, or is the result of rape or
incest.
It is conventional constitutional doctrine that where
reasonable people disagree the government can adopt one
position or the other. That theorem, however, assumes a state
of affairs in which the choice does not intrude upon a
protected liberty. Thus, while some people might disagree
about whether or not the flag should be saluted, or disagree
about the proposition that it may not be defiled, we have ruled
that a State may not compel or enforce one view or the other..
Our law affords constitutional protection to personal
decisions relating to marriage, procreation, contraception,
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family relationships, child rearing, and education. Our cases
recognize “the right of the individual, married or single, to be
free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to
bear or beget a child.” Our precedents “have respected the
private realm of family life which the state cannot enter.”
These matters, involving the most intimate and personal
choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of
liberty is the right to define one’s own concept of existence, of
meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes of
personhood were they formed under compulsion of the State.
These considerations begin our analysis of the woman’s
interest in terminating her pregnancy but cannot end it, for
this reason: though the abortion decision may originate within
the zone of conscience and belief, it is more than a philosophic
exercise. Abortion is a unique act. It is an act fraught with
consequences for others: for the woman who must live with
the implications of her decision; for the persons who perform
and assist in the procedure; for the spouse, family, and society
which must confront the knowledge that these procedures
exist, procedures some deem nothing short of an act of
violence against innocent human life; and, depending on one’s
beliefs, for the life or potential life that is aborted. Though
abortion is conduct, it does not follow that the State is entitled
to proscribe it in all instances. That is because the liberty of
the woman is at stake in a sense unique to the human
condition and so unique to the law. The mother who carries a
child to full term is subject to anxieties, to physical
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constraints, to pain that only she must bear. That these
sacrifices have from the beginning of the human race been
endured by woman with a pride that ennobles her in the eyes
of others and gives to the infant a bond of love cannot alone
be grounds for the State to insist she make the sacrifice. Her
suffering is too intimate and personal for the State to insist,
without more, upon its own vision of the woman’s role,
however dominant that vision has been in the course of our
history and our culture. The destiny of the woman must be
shaped to a large extent on her own conception of her
spiritual imperatives and her place in society.
It should be recognized, moreover, that in some critical
respects the abortion decision is of the same character as the
decision to use contraception, to which Griswold v. Connecticut,
Eisenstadt v. Baird, and Carey v. Population Services International
afford constitutional protection. We have no doubt as to the
correctness of those decisions. They support the reasoning in
Roe relating to the woman’s liberty because they involve
personal decisions concerning not only the meaning of
procreation but also human responsibility and respect for it.
As with abortion, reasonable people will have differences of
opinion about these matters. One view is based on such
reverence for the wonder of creation that any pregnancy
ought to be welcomed and carried to full term no matter how
difficult it will be to provide for the child and ensure its wellbeing. Another is that the inability to provide for the nurture
and care of the infant is a cruelty to the child and an anguish
to the parent. These are intimate views with infinite
variations, and their deep, personal character underlay our
decisions in Griswold, Eisenstadt, and Carey. The same concerns
are present when the woman confronts the reality that,
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perhaps despite her attempts to avoid it, she has become
pregnant.
It was this dimension of personal liberty that Roe sought to
protect, and its holding invoked the reasoning and the
tradition of the precedents we have discussed, granting
protection to substantive liberties of the person. Roe was, of
course, an extension of those cases and, as the decision itself
indicated, the separate States could act in some degree to
further their own legitimate interests in protecting prenatal
life. The extent to which the legislatures of the States might
act to outweigh the interests of the woman in choosing to
terminate her pregnancy was a subject of debate both in Roe
itself and in decisions following it.
While we appreciate the weight of the arguments made on
behalf of the State in the cases before us, arguments which in
their ultimate formulation conclude that Roe should be
overruled, the reservations any of us may have in reaffirming
the central holding of Roe are outweighed by the explication of
individual liberty we have given combined with the force of
stare decisis. We turn now to that doctrine.
III
A
The obligation to follow precedent begins with necessity, and
a contrary necessity marks its outer limit. With Cardozo, we
recognize that no judicial system could do society’s work if it
eyed each issue afresh in every case that raised it. See B.
Cardozo, The Nature of the Judicial Process 149 (1921). Indeed,
the very concept of the rule of law underlying our own
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Constitution requires such continuity over time that a respect
for precedent is, by definition, indispensable. See Powell, stare
decisis and Judicial Restraint, 1991 Journal of Supreme Court
History 13, 16. At the other extreme, a different necessity
would make itself felt if a prior judicial ruling should come to
be seen so clearly as error that its enforcement was for that
very reason doomed.
Even when the decision to overrule a prior case is not, as in
the rare, latter instance, virtually foreordained, it is common
wisdom that the rule of stare decisis is not an “inexorable
command,” and certainly it is not such in every constitutional
case…. Rather, when this Court reexamines a prior holding,
its judgment is customarily informed by a series of prudential
and pragmatic considerations designed to test the consistency
of overruling a prior decision with the ideal of the rule of law,
and to gauge the respective costs of reaffirming and
overruling a prior case. Thus, for example, we may ask
whether the rule has proven to be intolerable simply in
defying practical workability…; whether the rule is subject to
a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of
repudiation…; whether related principles of law have so far
developed as to have left the old rule no more than a remnant
of abandoned doctrine…; or whether facts have so changed,
or come to be seen so differently, as to have robbed the old
rule of significant application or justification….
So in this case we may enquire whether Roe’s central rule
has been found unworkable; whether the rule’s limitation on
state power could be removed without serious inequity to
those who have relied upon it or significant damage to the
stability of the society governed by it; whether the law’s
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growth in the intervening years has left Roe’s central rule a
doctrinal anachronism discounted by society; and whether
Roe’s premises of fact have so far changed in the ensuing two
decades as to render its central holding somehow irrelevant or
unjustifiable in dealing with the issue it addressed.
1
Although Roe has engendered opposition, it has in no sense
proven “unworkable,” . . . representing as it does a simple
limitation beyond which a state law is unenforceable. While
Roe has, of course, required judicial assessment of state laws
affecting the exercise of the choice guaranteed against
government infringement, and although the need for such
review will remain as a consequence of today’s decision, the
required determinations fall within judicial competence.
2
The inquiry into reliance counts the cost of a rule’s
repudiation as it would fall on those who have relied
reasonably on the rule’s continued application. Since the
classic case for weighing reliance heavily in favor of following
the earlier rule occurs in the commercial context . . . where
advance planning of great precision is most obviously a
necessity, it is no cause for surprise that some would find no
reliance worthy of consideration in support of Roe.
While neither respondents nor their amici in so many words
deny that the abortion right invites some reliance prior to its
actual exercise, one can readily imagine an argument stressing
the dissimilarity of this case to one involving property or
contract. Abortion is customarily chosen as an unplanned
response to the consequence of unplanned activity or to the
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failure of conventional birth control, and except on the
assumption that no intercourse would have occurred but for
Roe‘s holding, such behavior may appear to justify no reliance
claim. Even if reliance could be claimed on that unrealistic
assumption, the argument might run, any reliance interest
would be de minimis. This argument would be premised on
the hypothesis that reproductive planning could take virtually
immediate account of any sudden restoration of state
authority to ban abortions.
To eliminate the issue of reliance that easily, however, one
would need to limit cognizable reliance to specific instances of
sexual activity. But to do this would be simply to refuse to
face the fact that for two decades of economic and social
developments, people have organized intimate relationships
and made choices that define their views of themselves and
their places in society, in reliance on the availability of
abortion in the event that contraception should fail. The
ability of women to participate equally in the economic and
social life of the Nation has been facilitated by their ability to
control their reproductive lives. The Constitution serves
human values, and while the effect of reliance on Roe cannot
be exactly measured, neither can the certain cost of overruling
Roe for people who have ordered their thinking and living
around that case be dismissed.
3
[Justice O’Connor discusses how the “liberty” prong of the
Roe analysis allows for the debate to be tailored over time
based on the evolution of the States’ interests over time.]
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4
[Justice O’Connor discusses how, despite some changes in
the factual assumption in Roe, those changed assumptions do
not affect the legal reasoning and validity of the Roe holding.]
5
The sum of the precedential enquiry to this point shows Roe’s
underpinnings unweakened in any way affecting its central
holding. While it has engendered disapproval, it has not been
unworkable. An entire generation has come of age free to
assume Roe‘s concept of liberty in defining the capacity of
women to act in society, and to make reproductive decisions;
no erosion of principle going to liberty or personal autonomy
has left Roe’s central holding a doctrinal remnant; Roe portends
no developments at odds with other precedent for the analysis
of personal liberty; and no changes of fact have rendered
viability more or less appropriate as the point at which the
balance of interests tips. Within the bounds of normal stare
decisis analysis, then, and subject to the considerations on
which it customarily turns, the stronger argument is for
affirming Roe‘s central holding, with whatever degree of
personal reluctance any of us may have, not for overruling it.
B
[. . .]
. . . Because neither the factual underpinnings of Roe‘s
central holding nor our understanding of it has changed (and
because no other indication of weakened precedent has been
shown), the Court could not pretend to be reexamining the
prior law with any justification beyond a present doctrinal
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disposition to come out differently from the Court of 1973. To
overrule prior law for no other reason than that would run
counter to the view repeated in our cases, that a decision to
overrule should rest on some special reason over and above
the belief that a prior case was wrongly decided.
C
[Justice O’Connor discusses the problem of unnecessarily
reexamining and overturning controlling precedent—in this
case, Roe—without sufficient legal justification for doing so.]
The Court’s duty in the present cases is clear. In 1973, it
confronted the already-divisive issue of governmental power
to limit personal choice to undergo abortion, for which it
provided a new resolution based on the due process
guaranteed by the Fourteenth Amendment. Whether or not a
new social consensus is developing on that issue, its
divisiveness is no less today than in 1973, and pressure to
overrule the decision, like pressure to retain it, has grown
only more intense. A decision to overrule Roe’s essential
holding under the existing circumstances would address error,
if error there was, at the cost of both profound and
unnecessary damage to the Court’s legitimacy, and to the
Nation’s commitment to the rule of law. It is therefore
imperative to adhere to the essence of Roe’s original decision,
and we do so today.
IV
From what we have said so far it follows that it is a
constitutional liberty of the woman to have some freedom to
terminate her pregnancy. We conclude that the basic decision
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in Roe was based on a constitutional analysis which we cannot
now repudiate. The woman’s liberty is not so unlimited,
however, that from the outset the State cannot show its
concern for the life of the unborn, and at a later point in fetal
development the State’s interest in life has sufficient force so
that the right of the woman to terminate the pregnancy can be
restricted.
That brings us, of course, to the point where much criticism
has been directed at Roe, a criticism that always inheres when
the Court draws a specific rule from what in the Constitution
is but a general standard. We conclude, however, that the
urgent claims of the woman to retain the ultimate control over
her destiny and her body, claims implicit in the meaning of
liberty, require us to perform that function. Liberty must not
be extinguished for want of a line that is clear. And it falls to
us to give some real substance to the woman’s liberty to
determine whether to carry her pregnancy to full term.
We conclude the line should be drawn at viability, so that
before that time the woman has a right to choose to terminate
her pregnancy. We adhere to this principle for two reasons.
First, as we have said, is the doctrine of stare decisis. Any
judicial act of line-drawing may seem somewhat arbitrary, but
Roe was a reasoned statement, elaborated with great care. We
have twice reaffirmed it in the face of great opposition. . . . It
is that premise which we reaffirm today.
The second reason is that the concept of viability, as we
noted in Roe, is the time at which there is a realistic possibility
of maintaining and nourishing a life outside the womb, so that
the independent existence of the second life can in reason and
all fairness be the object of state protection that now overrides
the rights of the woman. Consistent with other constitutional
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norms, legislatures may draw lines which appear arbitrary
without the necessity of offering a justification. But courts
may not. We must justify the lines we draw. And there is no
line other than viability which is more workable. To be sure,
as we have said, there may be some medical developments
that affect the precise point of viability [..], but this is an
imprecision within tolerable limits given that the medical
community and all those who must apply its discoveries will
continue to explore the matter. The viability line also has, as a
practical matter, an element of fairness. In some broad sense it
might be said that a woman who fails to act before viability
has consented to the State’s intervention on behalf of the
developing child.
The woman’s right to terminate her pregnancy before
viability is the most central principle of Roe v. Wade. It is a rule
of law and a component of liberty we cannot renounce.
On the other side of the equation is the interest of the State
in the protection of potential life. The Roe Court recognized
the State’s “important and legitimate interest in protecting the
potentiality of human life.” The weight to be given this state
interest, not the strength of the woman’s interest, was the
difficult question faced in Roe. We do not need to say whether
each of us, had we been Members of the Court when the
valuation of the state interest came before it as an original
matter, would have concluded, as the Roe Court did, that its
weight is insufficient to justify a ban on abortions prior to
viability even when it is subject to certain exceptions. The
matter is not before us in the first instance, and coming as it
does after nearly 20 years of litigation in Roe’s wake we are
satisfied that the immediate question is not the soundness of
Roe’s resolution of the issue, but the precedential force that
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must be accorded to its holding. And we have concluded that
the essential holding of Roe should be reaffirmed.
Yet it must be remembered that Roe v. Wade speaks with
clarity in establishing not only the woman’s liberty but also
the State’s “important and legitimate interest in potential life.”
That portion of the decision in Roe has been given too little
acknowledgment and implementation by the Court in its
subsequent cases. Those cases decided that any regulation
touching upon the abortion decision must survive strict
scrutiny, to be sustained only if drawn in narrow terms to
further a compelling state interest. Not all of the cases decided
under that formulation can be reconciled with the holding in
Roe itself that the State has legitimate interests in the health of
the woman and in protecting the potential life within her. In
resolving this tension, we choose to rely upon Roe, as against
the later cases.
Roe established a trimester framework to govern abortion
regulations. Under this elaborate but rigid construct, almost
no regulation at all is permitted during the first trimester of
pregnancy; regulations designed to protect the woman’s
health, but not to further the State’s interest in potential life,
are permitted during the second trimester; and during the
third trimester, when the fetus is viable, prohibitions are
permitted provided the life or health of the mother is not at
stake. . . .
The trimester framework no doubt was erected to ensure
that the woman’s right to choose not become so subordinate
to the State’s interest in promoting fetal life that her choice
exists in theory but not in fact. We do not agree, however,
that the trimester approach is necessary to accomplish this
objective. A framework of this rigidity was unnecessary and
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in its later interpretation sometimes contradicted the State’s
permissible exercise of its powers.
Though the woman has a right to choose to terminate or
continue her pregnancy before viability, it does not at all
follow that the State is prohibited from taking steps to ensure
that this choice is thoughtful and informed. Even in the
earliest stages of pregnancy, the State may enact rules and
regulations designed to encourage her to know that there are
philosophic and social arguments of great weight that can be
brought to bear in favor of continuing the pregnancy to full
term and that there are procedures and institutions to allow
adoption of unwanted children as well as a certain degree of
state assistance if the mother chooses to raise the child herself.
“ ‘[T]he Constitution does not forbid a State or city, pursuant
to democratic processes, from expressing a preference for
normal childbirth.’ ” It follows that States are free to enact
laws to provide a reasonable framework for a woman to make
a decision that has such profound and lasting meaning. This,
too, we find consistent with Roe’ s central premises, and
indeed the inevitable consequence of our holding that the
State has an interest in protecting the life of the unborn.
[Justice O’Connor discusses why the trimester framework
should be abandoned. She focuses on the fact that its rigid
application is anathema to the sliding scale on which the
States’ legitimate interest in pre-viable life is balanced against
the liberty interests of the mother.]
[. . .]
. . . Numerous forms of state regulation might have the
incidental effect of increasing the cost or decreasing the
availability of medical care, whether for abortion or any other
medical procedure. The fact that a law which serves a valid
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purpose, one not designed to strike at the right itself, has the
incidental effect of making it more difficult or more expensive
to procure an abortion cannot be enough to invalidate it. Only
where state regulation imposes an undue burden on a
woman’s ability to make this decision does the power of the
State reach into the heart of the liberty protected by the Due
Process Clause.
[. . .]
These considerations of the nature of the abortion right
illustrate that it is an overstatement to describe it as a right to
decide whether to have an abortion “without interference
from the State.” All abortion regulations interfere to some
degree with a woman’s ability to decide whether to terminate
her pregnancy. It is, as a consequence, not surprising that
despite the protestations contained in the original Roe opinion
to the effect that the Court was not recognizing an absolute
right, . . . the Court’s experience applying the trimester
framework has led to the striking down of some abortion
regulations which in no real sense deprived women of the
ultimate decision. Those decisions went too far because the
right recognized by Roe is a right “to be free from
unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to
bear or beget a child.” Not all governmental intrusion is of
necessity unwarranted; and that brings us to the other basic
flaw in the trimester framework: even in Roe’s terms, in
practice it undervalues the State’s interest in the potential life
within the woman.
[. . .]
The very notion that the State has a substantial interest in
potential life leads to the conclusion that not all regulations
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must be deemed unwarranted. Not all burdens on the right to
decide whether to terminate a pregnancy will be undue. In
our view, the undue burden standard is the appropriate means
of reconciling the State’s interest with the woman’s
constitutionally protected liberty.
[. . .]
A finding of an undue burden is a shorthand for the
conclusion that a state regulation has the purpose or effect of
placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus. A statute with this purpose is
invalid because the means chosen by the State to further the
interest in potential life must be calculated to inform the
woman’s free choice, not hinder it. And a statute which, while
furthering the interest in potential life or some other valid
state interest, has the effect of placing a substantial obstacle in
the path of a woman’s choice cannot be considered a
permissible means of serving its legitimate ends. To the extent
that the opinions of the Court or of individual Justices use the
undue burden standard in a manner that is inconsistent with
this analysis, we set out what in our view should be the
controlling standard. In our considered judgment, an undue
burden is an unconstitutional burden. Understood another
way, we answer the question, left open in previous opinions
discussing the undue burden formulation, whether a law
designed to further the State’s interest in fetal life which
imposes an undue burden on the woman’s decision before
fetal viability could be constitutional. The answer is no.
Some guiding principles should emerge. What is at stake is
the woman’s right to make the ultimate decision, not a right to
be insulated from all others in doing so. Regulations which do
no more than create a structural mechanism by which the
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State, or the parent or guardian of a minor, may express
profound respect for the life of the unborn are permitted, if
they are not a substantial obstacle to the woman’s exercise of
the right to choose. Unless it has that effect on her right of
choice, a state measure designed to persuade her to choose
childbirth over abortion will be upheld if reasonably related to
that goal. Regulations designed to foster the health of a
woman seeking an abortion are valid if they do not constitute
an undue burden.
Even when jurists reason from shared premises, some
disagreement is inevitable. That is to be expected in the
application of any legal standard which must accommodate
life’s complexity. We do not expect it to be otherwise with
respect to the undue burden standard. We give this summary:
(a) To protect the central right recognized by Roe v. Wade
while at the same time accommodating the State’s profound
interest in potential life, we will employ the undue burden
analysis as explained in this opinion. An undue burden exists,
and therefore a provision of law is invalid, if its purpose or
effect is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.
(b) We reject the rigid trimester framework of Roe v. Wade.
To promote the State’s profound interest in potential life,
throughout pregnancy the State may take measures to ensure
that the woman’s choice is informed, and measures designed
to advance this interest will not be invalidated as long as their
purpose is to persuade the woman to choose childbirth over
abortion. These measures must not be an undue burden on
the right.
(c) As with any medical procedure, the State may enact
regulations to further the health or safety of a woman seeking
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an abortion. Unnecessary health regulations that have the
purpose or effect of presenting a substantial obstacle to a
woman seeking an abortion impose an undue burden on the
right.
(d) Our adoption of the undue burden analysis does not
disturb the central holding of Roe v. Wade, and we reaffirm that
holding. Regardless of whether exceptions are made for
particular circumstances, a State may not prohibit any woman
from making the ultimate decision to terminate her pregnancy
before viability.
(e) We also reaffirm Roe’s holding that “subsequent to
viability, the State in promoting its interest in the potentiality
of human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical
judgment, for the preservation of the life or health of the
mother.”
These principles control our assessment of the Pennsylvania
statute, and we now turn to the issue of the validity of its
challenged provisions.
V
The Court of Appeals applied what it believed to be the
undue burden standard and upheld each of the provisions
except for the husband notification requirement. We agree
generally with this conclusion, but refine the undue burden
analysis in accordance with the principles articulated above.
We now consider the separate statutory sections at issue.
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A
[Justice O’Connor analyzes the “medical emergency”
provision, which petitioner’s challenged as too narrow.
Because there are three exceptions in the case of extreme
medical emergencies, O’Connor states that the burden is not
undue, even if situations involving significant complications
are not encompassed.]
B
We next consider the informed consent requirement.
[. . .]
To the extent [that prior cases] find a constitutional
violation when the government requires, as it does here, the
giving of truthful, nonmisleading information about the
nature of the procedure, the attendant health risks and those
of childbirth, and the “probable gestational age” of the fetus,
those cases go too far, are inconsistent with Roe’s
acknowledgment of an important interest in potential life, and
are overruled. [Prior decisions] recognize a substantial
government interest justifying a requirement that a woman be
apprised of the health risks of abortion and childbirth. It
cannot be questioned that psychological well-being is a facet
of health. Nor can it be doubted that most women considering
an abortion would deem the impact on the fetus relevant, if
not dispositive, to the decision. In attempting to ensure that a
woman apprehend the full consequences of her decision, the
State furthers the legitimate purpose of reducing the risk that
a woman may elect an abortion, only to discover later, with
devastating psychological consequences, that her decision was
not fully informed. If the information the State requires to be
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made available to the woman is truthful and not misleading,
the requirement may be permissible.
We also see no reason why the State may not require
doctors to inform a woman seeking an abortion of the
availability of materials relating to the consequences to the
fetus, even when those consequences have no direct relation
to her health. An example illustrates the point. We would
think it constitutional for the State to require that in order for
there to be informed consent to a kidney transplant operation
the recipient must be supplied with information about risks to
the donor as well as risks to himself or herself. A requirement
that the physician make available information similar to that
mandated by the statute here was described in Thornburgh as
“an outright attempt to wedge the Commonwealth’s message
discouraging abortion into the privacy of the informedconsent dialogue between the woman and her physician.” We
conclude, however, that informed choice need not be defined
in such narrow terms that all considerations of the effect on
the fetus are made irrelevant. As we have made clear, we
depart from the holdings [of prior cases] to the extent that we
permit a State to further its legitimate goal of protecting the
life of the unborn by enacting legislation aimed at ensuring a
decision that is mature and informed, even when in so doing
the State expresses a preference for childbirth over abortion.
In short, requiring that the woman be informed of the
availability of information relating to fetal development and
the assistance available should she decide to carry the
pregnancy to full term is a reasonable measure to ensure an
informed choice, one which might cause the woman to choose
childbirth over abortion. This requirement cannot be
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considered a substantial obstacle to obtaining an abortion,
and, it follows, there is no undue burden.
[The Court dismisses the argument that the “informed
consent” provisions act as a “straightjacket” by intruding into
the doctor-patient relationship. That the doctor must give
information to a women seeking an abortion is no different
than any other medical procedure, and the law allows
exceptions where the doctor can demonstrate that it is in the
patient’s medical (mental and physical) interests not to
disclose such information.]
All that is left of petitioners’ argument is an asserted First
Amendment right of a physician not to provide information
about the risks of abortion, and childbirth, in a manner
mandated by the State. To be sure, the physician’s First
Amendment rights not to speak are implicated . . . but only as
part of the practice of medicine, subject to reasonable
licensing and regulation by the State . . . .We see no
constitutional infirmity in the requirement that the physician
provide the information mandated by the State here.
[Justice O’Connor examines the remaining “informed
consent” arguments and finds that none of them amount to
undue burdens.]
C
Section 3209 of Pennsylvania’s abortion law provides, except
in cases of medical emergency, that no physician shall perform
an abortion on a married woman without receiving a signed
statement from the woman that she has notified her spouse
that she is about to undergo an abortion. The woman has the
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option of providing an alternative signed statement certifying
that her husband is not the man who impregnated her; that
her husband could not be located; that the pregnancy is the
result of spousal sexual assault which she has reported; or
that the woman believes that notifying her husband will cause
him or someone else to inflict bodily injury upon her. A
physician who performs an abortion on a married woman
without receiving the appropriate signed statement will have
his or her license revoked, and is liable to the husband for
damages.
[. . .]
This information and the District Court’s findings reinforce
what common sense would suggest. In well-functioning
marriages, spouses discuss important intimate decisions such
as whether to bear a child. But there are millions of women in
this country who are the victims of regular physical and
psychological abuse at the hands of their husbands. Should
these women become pregnant, they may have very good
reasons for not wishing to inform their husbands of their
decision to obtain an abortion. Many may have justifiable
fears of physical abuse, but may be no less fearful of the
consequences of reporting prior abuse to the Commonwealth
of Pennsylvania. Many may have a reasonable fear that
notifying their husbands will provoke further instances of
child abuse; these women are not exempt from § 3209’s
notification requirement. Many may fear devastating forms of
psychological abuse from their husbands, including verbal
harassment, threats of future violence, the destruction of
possessions, physical confinement to the home, the
withdrawal of financial support, or the disclosure of the
abortion to family and friends. These methods of
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psychological abuse may act as even more of a deterrent to
notification than the possibility of physical violence, but
women who are the victims of the abuse are not exempt from
§ 3209’s notification requirement. And many women who are
pregnant as a result of sexual assaults by their husbands will
be unable to avail themselves of the exception for spousal
sexual assault, § 3209(b)(3), because the exception requires
that the woman have notified law enforcement authorities
within 90 days of the assault, and her husband will be notified
of her report once an investigation begins, § 3128(c). If
anything in this field is certain, it is that victims of spousal
sexual assault are extremely reluctant to report the abuse to
the government; hence, a great many spousal rape victims will
not be exempt from the notification requirement imposed by §
3209.
The spousal notification requirement is thus likely to
prevent a significant number of women from obtaining an
abortion. It does not merely make abortions a little more
difficult or expensive to obtain; for many women, it will
impose a substantial obstacle. We must not blind ourselves to
the fact that the significant number of women who fear for
their safety and the safety of their children are likely to be
deterred from procuring an abortion as surely as if the
Commonwealth had outlawed abortion in all cases.
[. . .]
We recognize that a husband has a “deep and proper
concern and interest . . . in his wife’s pregnancy and in the
growth and development of the fetus she is carrying.” With
regard to the children he has fathered and raised, the Court
has recognized his “cognizable and substantial” interest in
their custody. If these cases concerned a State’s ability to
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require the mother to notify the father before taking some
action with respect to a living child raised by both, therefore,
it would be reasonable to conclude as a general matter that
the father’s interest in the welfare of the child and the
mother’s interest are equal.
Before birth, however, the issue takes on a very different
cast. It is an inescapable biological fact that state regulation
with respect to the child a woman is carrying will have a far
greater impact on the mother’s liberty than on the father’s.
The effect of state regulation on a woman’s protected liberty is
doubly deserving of scrutiny in such a case, as the State has
touched not only upon the private sphere of the family but
upon the very bodily integrity of the pregnant woman. The
Court has held that “when the wife and the husband disagree
on this decision, the view of only one of the two marriage
partners can prevail. Inasmuch as it is the woman who
physically bears the child and who is the more directly and
immediately affected by the pregnancy, as between the two,
the balance weighs in her favor.” This conclusion rests upon
the basic nature of marriage and the nature of our
Constitution: “[T]he marital couple is not an independent
entity with a mind and heart of its own, but an association of
two individuals each with a separate intellectual and
emotional makeup. If the right of privacy means anything, it
is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to
bear or beget a child.” The Constitution protects individuals,
men and women alike, from unjustified state interference,
even when that interference is enacted into law for the benefit
of their spouses.
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[. . .]
The husband’s interest in the life of the child his wife is
carrying does not permit the State to empower him with this
troubling degree of authority over his wife. The contrary view
leads to consequences reminiscent of the common law. A
husband has no enforceable right to require a wife to advise
him before she exercises her personal choices. If a husband’s
interest in the potential life of the child outweighs a wife’s
liberty, the State could require a married woman to notify her
husband before she uses a postfertilization contraceptive.
Perhaps next in line would be a statute requiring pregnant
married women to notify their husbands before engaging in
conduct causing risks to the fetus. After all, if the husband’s
interest in the fetus’ safety is a sufficient predicate for state
regulation, the State could reasonably conclude that pregnant
wives should notify their husbands before drinking alcohol or
smoking. Perhaps married women should notify their
husbands before using contraceptives or before undergoing
any type of surgery that may have complications affecting the
husband’s interest in his wife’s reproductive organs. And if a
husband’s interest justifies notice in any of these cases, one
might reasonably argue that it justifies exactly what the
Danforth Court held it did not justify—a requirement of the
husband’s consent as well. A State may not give to a man the
kind of dominion over his wife that parents exercise over their
children.
Section 3209 embodies a view of marriage consonant with
the common-law status of married women but repugnant to
our present understanding of marriage and of the nature of
the rights secured by the Constitution. Women do not lose
their constitutionally protected liberty when they marry. The
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Constitution protects all individuals, male or female, married
or unmarried, from the abuse of governmental power, even
where that power is employed for the supposed benefit of a
member of the individual’s family. These considerations
confirm our conclusion that § 3209 is invalid.
D
[The reporting requirement for minors is upheld.]
E
[While reporting requirements to the state can be
constitutional, the subsection of the statute that requires an
explanation relating to the notification of the husband is
struck down as imposing an undue burden for the reasons
discussed in Part C.]
VI
Our Constitution is a covenant running from the first
generation of Americans to us and then to future generations.
It is a coherent succession. Each generation must learn anew
that the Constitution’s written terms embody ideas and
aspirations that must survive more ages than one. We accept
our responsibility not to retreat from interpreting the full
meaning of the covenant in light of all of our precedents. We
invoke it once again to define the freedom guaranteed by the
Constitution’s own promise, the promise of liberty.
***
The judgment in No. 91–902 is affirmed. The judgment in
No. 91–744 is affirmed in part and reversed in part, and the
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case is remanded for proceedings consistent with this opinion,
including consideration of the question of severability.
It is so ordered.
Justice STEVENS, concurring in part and dissenting in
part.
The portions of the Court’s opinion that I have joined are
more important than those with which I disagree. I shall
therefore first comment on significant areas of agreement, and
then explain the limited character of my disagreement.
I
The Court is unquestionably correct in concluding that the
doctrine of stare decisis has controlling significance in a case of
this kind, notwithstanding an individual Justice’s concerns
about the merits.1 The central holding of Roe v. Wade . . . has
been a “part of our law” for almost two decades. It was a
natural sequel to the protection of individual liberty
established in Griswold v. Connecticut . . . .The societal costs of
overruling Roe at this late date would be enormous. Roe is an
integral part of a correct understanding of both the concept of
liberty and the basic equality of men and women.
Stare decisis also provides a sufficient basis for my agreement
with the joint opinion’s reaffirmation of Roe’s postviability
analysis. Specifically, I accept the proposition that “[i]f the
State is interested in protecting fetal life after viability, it may
go so far as to proscribe abortion during that period, except
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when it is necessary to preserve the life or health of the
mother.”
I also accept what is implicit in the Court’s analysis, namely,
a reaffirmation of Roe’s explanation of why the State’s
obligation to protect the life or health of the mother must take
precedence over any duty to the unborn. The Court in Roe
carefully considered, and rejected, the State’s argument “that
the fetus is a ‘person’ within the language and meaning of the
Fourteenth Amendment.” After analyzing the usage of
“person” in the Constitution, the Court concluded that that
word “has application only postnatally.” Commenting on the
contingent property interests of the unborn that are generally
represented by guardians ad litem, the Court noted:
“Perfection of the interests involved, again, has generally been
contingent upon live birth. In short, the unborn have never
been recognized in the law as persons in the whole sense.”
Accordingly, an abortion is not “the termination of life entitled
to Fourteenth Amendment protection.” From this holding,
there was no dissent . . .; indeed, no Member of the Court has
ever questioned this fundamental proposition. Thus, as a
matter of federal constitutional law, a developing organism
that is not yet a “person” does not have what is sometimes
described as a “right to life.” This has been and, by the Court’s
holding today, remains a fundamental premise of our
constitutional law governing reproductive autonomy.
II
My disagreement with the joint opinion begins with its
understanding of the trimester framework established in Roe.
Contrary to the suggestion of the joint opinion, . . . it is not a
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“contradiction” to recognize that the State may have a
legitimate interest in potential human life and, at the same
time, to conclude that that interest does not justify the
regulation of abortion before viability (although other
interests, such as maternal health, may). The fact that the
State’s interest is legitimate does not tell us when, if ever, that
interest outweighs the pregnant woman’s interest in personal
liberty. It is appropriate, therefore, to consider more carefully
the nature of the interests at stake.
First, it is clear that, in order to be legitimate, the State’s
interest must be secular; consistent with the First Amendment
the State may not promote a theological or sectarian interest.
Moreover, as discussed above, the state interest in potential
human life is not an interest in loco parentis, for the fetus is not
a person.
Identifying the State’s interests—which the States rarely
articulate with any precision—makes clear that the interest in
protecting potential life is not grounded in the Constitution. It
is, instead, an indirect interest supported by both
humanitarian and pragmatic concerns. Many of our citizens
believe that any abortion reflects an unacceptable disrespect
for potential human life and that the performance of more
than a million abortions each year is intolerable; many find
third-trimester abortions performed when the fetus is
approaching personhood particularly offensive. The State has
a legitimate interest in minimizing such offense. The State
may also have a broader interest in expanding the population,
3 believing society would benefit from the services of
additional productive citizens—or that the potential human
lives might include the occasional Mozart or Curie. These are
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the kinds of concerns that comprise the State’s interest in
potential human life.
In counterpoise is the woman’s constitutional interest in
liberty. One aspect of this liberty is a right to bodily integrity,
a right to control one’s person. This right is neutral on the
question of abortion: The Constitution would be equally
offended by an absolute requirement that all women undergo
abortions as by an absolute prohibition on abortions. “Our
whole constitutional heritage rebels at the thought of giving
government the power to control men’s minds.” The same
holds true for the power to control women’s bodies.
The woman’s constitutional liberty interest also involves her
freedom to decide matters of the highest privacy and the most
personal nature. A woman considering abortion faces “a
difficult choice having serious and personal consequences of
major importance to her own future—perhaps to the salvation
of her own immortal soul.” The authority to make such
traumatic and yet empowering decisions is an element of basic
human dignity. As the joint opinion so eloquently
demonstrates, a woman’s decision to terminate her pregnancy
is nothing less than a matter of conscience.
Weighing the State’s interest in potential life and the
woman’s liberty interest, I agree with the joint opinion that
the State may “ ‘ “expres[s] a preference for normal
childbirth,” ’ ” that the State may take steps to ensure that a
woman’s choice “is thoughtful and informed,” and that “States
are free to enact laws to provide a reasonable framework for a
woman to make a decision that has such profound and lasting
meaning.” . . . Serious questions arise, however, when a State
attempts to “persuade the woman to choose childbirth over
abortion.” . . . Decisional autonomy must limit the State’s
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power to inject into a woman’s most personal deliberations its
own views of what is best. The State may promote its
preferences by funding childbirth, by creating and
maintaining alternatives to abortion, and by espousing the
virtues of family; but it must respect the individual’s freedom
to make such judgments.
This theme runs throughout our decisions concerning
reproductive freedom. In general, Roe’s requirement that
restrictions on abortions before viability be justified by the
State’s interest in maternal health has prevented States from
interjecting regulations designed to influence a woman’s
decision. Thus, we have upheld regulations of abortion that
are not efforts to sway or direct a woman’s choice, but rather
are efforts to enhance the deliberative quality of that decision
or are neutral regulations on the health aspects of her
decision. We have, for example, upheld regulations requiring
written informed consent . . .; limited recordkeeping and
reporting, . . .; and pathology reports . . .; as well as various
licensing and qualification provisions,. . . . Conversely, we
have consistently rejected state efforts to prejudice a woman’s
choice, either by limiting the information available to her . . .
or by “requir[ing] the delivery of information designed ‘to
influence the woman’s informed choice between abortion or
childbirth.’ ”
In my opinion, the principles established in this long line of
cases and the wisdom reflected in Justice Powell’s opinion for
the Court in Akron (and followed by the Court just six years
ago in Thornburgh) should govern our decision today. Under
these principles, Pa.Cons.Stat. §§ 3205(a)(2)(i)–(iii) (1990)
of the Pennsylvania statute are unconstitutional. Those
sections require a physician or counselor to provide the
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woman with a range of materials clearly designed to persuade
her to choose not to undergo the abortion. While the
Commonwealth is free, pursuant to § 3208 of the
Pennsylvania law, to produce and disseminate such material,
the Commonwealth may not inject such information into the
woman’s deliberations just as she is weighing such an
important choice.
Under this same analysis, §§ 3205(a)(1)(i) and (iii) of the
Pennsylvania statute are constitutional. Those sections, which
require the physician to inform a woman of the nature and
risks of the abortion procedure and the medical risks of
carrying to term, are neutral requirements comparable to
those imposed in other medical procedures. Those sections
indicate no effort by the Commonwealth to influence the
woman’s choice in any way. If anything, such requirements
enhance, rather than skew, the woman’s decisionmaking.
III
The 24–hour waiting period required by §§ 3205(a)(1)–(2) of
the Pennsylvania statute raises even more serious concerns.
Such a requirement arguably furthers the Commonwealth’s
interests in two ways, neither of which is constitutionally
permissible.
First, it may be argued that the 24–hour delay is justified by
the mere fact that it is likely to reduce the number of
abortions, thus furthering the Commonwealth’s interest in
potential life. But such an argument would justify any form of
coercion that placed an obstacle in the woman’s path. The
Commonwealth cannot further its interests by simply wearing
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down the ability of the pregnant woman to exercise her
constitutional right.
Second, it can more reasonably be argued that the 24–hour
delay furthers the Commonwealth’s interest in ensuring that
the woman’s decision is informed and thoughtful. But there is
no evidence that the mandated delay benefits women or that it
is necessary to enable the physician to convey any relevant
information to the patient. The mandatory delay thus appears
to rest on outmoded and unacceptable assumptions about the
decisionmaking capacity of women. While there are wellestablished and consistently maintained reasons for the
Commonwealth to view with skepticism the ability of minors
to make decisions, . . . none of those reasons applies to an
adult woman’s decisionmaking ability. Just as we have left
behind the belief that a woman must consult her husband
before undertaking serious matters, . . . so we must reject the
notion that a woman is less capable of deciding matters of
gravity.
In the alternative, the delay requirement may be premised
on the belief that the decision to terminate a pregnancy is
presumptively wrong. This premise is illegitimate. Those who
disagree vehemently about the legality and morality of
abortion agree about one thing: The decision to terminate a
pregnancy is profound and difficult. No person undertakes
such a decision lightly—and States may not presume that a
woman has failed to reflect adequately merely because her
conclusion differs from the State’s preference. A woman who
has, in the privacy of her thoughts and conscience, weighed
the options and made her decision cannot be forced to
reconsider all, simply because the State believes she has come
to the wrong conclusion.
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Part of the constitutional liberty to choose is the equal
dignity to which each of us is entitled. A woman who decides
to terminate her pregnancy is entitled to the same respect as a
woman who decides to carry the fetus to term. The
mandatory waiting period denies women that equal respect.
IV
In my opinion, a correct application of the “undue burden”
standard leads to the same conclusion concerning the
constitutionality of these requirements. A state-imposed
burden on the exercise of a constitutional right is measured
both by its effects and by its character: A burden may be
“undue” either because the burden is too severe or because it
lacks a legitimate, rational justification.6
The 24–hour delay requirement fails both parts of this test.
The findings of the District Court establish the severity of the
burden that the 24–hour delay imposes on many pregnant
women. Yet even in those cases in which the delay is not
especially onerous, it is, in my opinion, “undue” because there
is no evidence that such a delay serves a useful and legitimate
purpose. As indicated above, there is no legitimate reason to
require a woman who has agonized over her decision to leave
the clinic or hospital and return again another day. While a
general requirement that a physician notify her patients about
the risks of a proposed medical procedure is appropriate, a
rigid requirement that all patients wait 24 hours or (what is
true in practice) much longer to evaluate the significance of
information that is either common knowledge or irrelevant is
an irrational and, therefore, “undue” burden.
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The counseling provisions are similarly infirm. Whenever
government commands private citizens to speak or to listen,
careful review of the justification for that command is
particularly appropriate. In these cases, the Pennsylvania
statute directs that counselors provide women seeking
abortions with information concerning alternatives to
abortion, the availability of medical assistance benefits, and
the possibility of child-support payments. §§ 3205(a)(2)(i)–
(iii). The statute requires that this information be given to all
women seeking abortions, including those for whom such
information is clearly useless, such as those who are married,
those who have undergone the procedure in the past and are
fully aware of the options, and those who are fully convinced
that abortion is their only reasonable option. Moreover, the
statute requires physicians to inform all of their patients of
“[t]he probable gestational age of the unborn child.” §
3205(a)(1)(ii). This information is of little decisional value in
most cases, because 90% of all abortions are performed
during the first trimester when fetal age has less relevance
than when the fetus nears viability. Nor can the information
required by the statute be justified as relevant to any
“philosophic” or “social” argument . . . either favoring or
disfavoring the abortion decision in a particular case. In light
of all of these facts, I conclude that the information
requirements in § 3205(a)(1)(ii) and §§ 3205(a)(2)(i)–(iii) do
not serve a useful purpose and thus constitute an unnecessary
—and therefore undue—burden on the woman’s
constitutional liberty to decide to terminate her pregnancy.
Accordingly, while I disagree with Parts IV, V–B, and V–D
of the joint opinion, I join the remainder of the Court’s
opinion.
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[Justice Blackmun’s concurrence in part and dissent in
part is omitted.]
Chief Justice Rehnquist, concurring in part and dissenting
in part.
....
We have held that a liberty interest protected under the
Due Process Clause of the Fourteenth Amendment will be
deemed fundamental if it is “implicit in the concept of ordered
liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937). Three
years earlier, in Snyder v. Massachusetts, 291 U. S. 97 (1934),
we referred to a “principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.”
Id., at 105. These expressions are admittedly not precise, but
our decisions implementing this notion of “fundamental”
rights do not afford any more elaborate basis on which to base
such a classification.
In construing the phrase “liberty” incorporated in the Due
Process Clause of the Fourteenth Amendment, we have
recognized that its meaning extends beyond freedom from
physical restraint. In Pierce v. Society of Sisters, 268 U. S. 510
(1925), we held that it included a parent’s right to send a child
to private school; in Meyer v. Nebraska, 262 U. S. 390 (1923),
we held that it included a right to teach a foreign language in
a parochial school. Building on these cases, we have held that
the term “liberty” includes a right to marry, Loving v. Virginia,
388 U. S. 1 (1967); a right to procreate, Skinner v. Oklahoma ex
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rel. Williamson, 316 U. S. 535 (1942); and a right to use
contraceptives, Griswold v. Connecticut, 381 U. S. 479 (1965);
Eisenstadt v. Baird, 405 U. S. 438 (1972). But a reading of these
opinions makes clear that they do not endorse any allencompassing “right of privacy.”
In Roe v. Wade, the Court recognized a “guarantee of
personal privacy” which “is broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.”
410 U. S., at 152-153. We are now of the view that, in terming
this right fundamental, the Court in Roe read the earlier
opinions upon which it based its decision much too broadly.
Unlike marriage, procreation, and contraception, abortion
involves the purposeful termination of a potential life. The
abortion decision must therefore “be recognized as sui generis,
different in kind from the others that the Court has protected
under the rubric of personal or family privacy and autonomy.”
Thornburgh v. American College of Obstetricians and Gynecologists,
supra, at 792 (White, J., dissenting). One cannot ignore the
fact that a woman is not isolated in her pregnancy, and that
the decision to abort necessarily involves the destruction of a
fetus. See Michael H. v. Gerald D., supra, at 124, n. 4 (To look
“at the act which is assertedly the subject of a liberty interest
in isolation from its effect upon other people [is] like
inquiring whether there is a liberty interest in firing a gun
where the case at hand happens to involve its discharge into
another person’s body”).
Nor do the historical traditions of the American people
support the view that the right to terminate one’s pregnancy is
“fundamental.” The common law which we inherited from
England made abortion after “quickening” an offense. At the
time of the adoption of the Fourteenth Amendment, statutory
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prohibitions or restrictions on abortion were commonplace; in
1868, at least 28 of the then-37 States and 8 Territories had
statutes banning or limiting abortion. J. Mohr, Abortion in
America 200 (1978). By the turn of the century virtually every
State had a law prohibiting or restricting abortion on its
books. By the middle of the present century, a liberalization
trend had set in. But 21 of the restrictive abortion laws in
effect in 1868 were still in effect in 1973 when Roe was
decided, and an overwhelming majority of the States
prohibited abortion unless necessary to preserve the life or
health of the mother. On this record, it can scarcely be said
that any deeply rooted tradition of relatively unrestricted
abortion in our history supported the classification of the
right to abortion as “fundamental” under the Due Process
Clause of the Fourteenth Amendment.
We think, therefore, both in view of this history and of our
decided cases dealing with substantive liberty under the Due
Process Clause, that the Court was mistaken in Roe when it
classified a woman’s decision to terminate her pregnancy as a
“fundamental right” that could be abridged only in a manner
which withstood “strict scrutiny.” In so concluding, we repeat
the observation made in Bowers v. Hardwick, 478 U. S. 186
(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
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cognizable roots in the language or design of the
Constitution.
Id., at 194.
We believe that the sort of constitutionally imposed
abortion code of the type illustrated by our decisions
following Roe is inconsistent “with the notion of a Constitution
cast in general terms, as ours is, and usually speaking in
general principles, as ours does.” Webster v. Reproductive Health
Services, 492 U. S., at 518 (plurality opinion). The Court in Roe
reached too far when it analogized the right to abort a fetus to
the rights involved in Pierce, Meyer, Loving, and Griswold, and
thereby deemed the right to abortion fundamental.
....
Justice SCALIA, with whom THE CHIEF JUSTICE,
Justice WHITE, and Justice THOMAS join, concurring in
the judgment in part and dissenting in part.
The States may, if they wish, permit abortion on demand,
but the Constitution does not require them to do so. The
permissibility of abortion, and the limitations upon it, are to
be resolved like most important questions in our democracy:
by citizens trying to persuade one another and then voting. As
the Court acknowledges, “where reasonable people disagree
the government can adopt one position or the other.” The
Court is correct in adding the qualification that this “assumes
a state of affairs in which the choice does not intrude upon a
protected liberty,” —but the crucial part of that qualification
is the penultimate word. A State’s choice between two
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positions on which reasonable people can disagree is
constitutional even when (as is often the case) it intrudes
upon a “liberty” in the absolute sense. Laws against bigamy,
for example—with which entire societies of reasonable people
disagree—intrude upon men and women’s liberty to marry
and live with one another. But bigamy happens not to be a
liberty specially “protected” by the Constitution.
That is, quite simply, the issue in these cases: not whether
the power of a woman to abort her unborn child is a “liberty”
in the absolute sense; or even whether it is a liberty of great
importance to many women. Of course it is both. The issue is
whether it is a liberty protected by the Constitution of the
United States. I am sure it is not. I reach that conclusion not
because of anything so exalted as my views concerning the
“concept of existence, of meaning, of the universe, and of the
mystery of human life.” Rather, I reach it for the same reason
I reach the conclusion that bigamy is not constitutionally
protected—because of two simple facts: (1) the Constitution
says absolutely nothing about it, and (2) the longstanding
traditions of American society have permitted it to be legally
proscribed.
....
The joint opinion frankly concedes that the amorphous
concept of “undue burden” has been inconsistently applied by
the Members of this Court in the few brief years since that
“test” was first explicitly propounded by Justice O'Connor in
her dissent in Akron I, 462 U. S. 416 (1983). . . . .
Any regulation of abortion that is intended to advance what
the joint opinion concedes is the State's “substantial” interest
in protecting unborn life will be “calculated [to] hinder” a
decision to have an abortion. It thus seems more accurate to
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say that the joint opinion would uphold abortion regulations
only if they do not unduly hinder the woman's decision. That,
of course, brings us right back to square one: Defining an
“undue burden” as an “undue hindrance” (or a “substantial
obstacle”) hardly “clarifies” the test. Consciously or not, the
joint opinion’s verbal shell game will conceal raw judicial
policy choices concerning what is “appropriate” abortion
legislation. . . . .
Because the portion of the joint opinion adopting and
describing the undue burden test provides no more useful
guidance than the empty phrases discussed above, one must
turn to the 23 pages applying that standard to the present
facts for further guidance. . . . .
[W]hat is remarkable about the joint opinion’s factintensive analysis is that it does not result in any measurable
clarification of the “undue burden” standard. Rather, the
approach of the joint opinion is, for the most part, simply to
highlight certain facts in the record that apparently strike the
three Justices as particularly significant in establishing (or
refuting) the existence of an undue burden; after describing
these facts, the opinion then simply announces that the
provision either does or does not impose a “substantial
obstacle” or an “undue burden.” . . . .
. . . . Reason finds no refuge in this jurisprudence of
confusion.
....
[As] THE CHIEF JUSTICE points out, we have been
subjected to what the Court calls “ ‘political pressure’ ” by
both sides of this issue. Maybe today’s decision not to overrule
Roe will be seen as buckling to pressure from that direction.
Instead of engaging in the hopeless task of predicting public
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perception—a job not for lawyers but for political campaign
managers—the Justices should do what is legally right by
asking two questions: (1) Was Roe correctly decided? (2) Has
Roe succeeded in producing a settled body of law? If the
answer to both questions is no, Roe should undoubtedly be
overruled.
In truth, I am as distressed as the Court is—and expressed
my distress several years ago . . .—about the “political
pressure” directed to the Court: the marches, the mail, the
protests aimed at inducing us to change our opinions. How
upsetting it is, that so many of our citizens (good people, not
lawless ones, on both sides of this abortion issue, and on
various sides of other issues as well) think that we Justices
should properly take into account their views, as though we
were engaged not in ascertaining an objective law but in
determining some kind of social consensus. The Court would
profit, I think, from giving less attention to the fact of this
distressing phenomenon, and more attention to the cause of it.
That cause permeates today’s opinion: a new mode of
constitutional adjudication that relies not upon text and
traditional practice to determine the law, but upon what the
Court calls “reasoned judgment,” . . . which turns out to be
nothing but philosophical predilection and moral intuition. All
manner of “liberties,” the Court tells us, inhere in the
Constitution and are enforceable by this Court—not just
those mentioned in the text or established in the traditions of
our society. . . . Why even the Ninth Amendment—which
says only that “[t]he enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage
others retained by the people”—is, despite our contrary
understanding for almost 200 years, a literally boundless
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source of additional, unnamed, unhinted—at “rights,”
definable and enforceable by us, through “reasoned
judgment.”
What makes all this relevant to the bothersome application
of “political pressure” against the Court are the twin facts that
the American people love democracy and the American
people are not fools. As long as this Court thought (and the
people thought) that we Justices were doing essentially
lawyers’ work up here—reading text and discerning our
society’s traditional understanding of that text—the public
pretty much left us alone. Texts and traditions are facts to
study, not convictions to demonstrate about. But if in reality
our process of constitutional adjudication consists primarily of
making value judgments; if we can ignore a long and clear
tradition clarifying an ambiguous text, as we did, for example,
five days ago in declaring unconstitutional invocations and
benedictions at public high school graduation ceremonies . . .;
if, as I say, our pronouncement of constitutional law rests
primarily on value judgments, then a free and intelligent
people’s attitude towards us can be expected to be (ought to
be) quite different. The people know that their value
judgments are quite as good as those taught in any law school
—maybe better. If, indeed, the “liberties” protected by the
Constitution are, as the Court says, undefined and
unbounded, then the people should demonstrate, to protest
that we do not implement their values instead of ours. Not only
that, but confirmation hearings for new Justices should
deteriorate into question-and-answer sessions in which
Senators go through a list of their constituents’ most favored
and most disfavored alleged constitutional rights, and seek the
nominee’s commitment to support or oppose them. Value
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judgments, after all, should be voted on, not dictated; and if
our Constitution has somehow accidently committed them to
the Supreme Court, at least we can have a sort of plebiscite
each time a new nominee to that body is put forward. Justice
BLACKMUN not only regards this prospect with
equanimity, he solicits it.
***
There is a poignant aspect to today’s opinion. Its length,
and what might be called its epic tone, suggest that its authors
believe they are bringing to an end a troublesome era in the
history of our Nation and of our Court. “It is the dimension”
of authority, they say, to “cal[l] the contending sides of
national controversy to end their national division by
accepting a common mandate rooted in the Constitution.”
There comes vividly to mind a portrait by Emanuel Leutze
that hangs in the Harvard Law School: Roger Brooke Taney,
painted in 1859, the 82d year of his life, the 24th of his Chief
Justiceship, the second after his opinion in Dred Scott. He is all
in black, sitting in a shadowed red armchair, left hand resting
upon a pad of paper in his lap, right hand hanging limply,
almost lifelessly, beside the inner arm of the chair. He sits
facing the viewer and staring straight out. There seems to be
on his face, and in his deep-set eyes, an expression of
profound sadness and disillusionment. Perhaps he always
looked that way, even when dwelling upon the happiest of
thoughts. But those of us who know how the lustre of his
great Chief Justiceship came to be eclipsed by Dred Scott
cannot help believing that he had that case—its already
apparent consequences for the Court and its soon-to-beplayed-out consequences for the Nation—burning on his
mind. I expect that two years earlier he, too, had thought
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himself “call[ing] the contending sides of national controversy
to end their national division by accepting a common mandate
rooted in the Constitution.”
It is no more realistic for us in this litigation, than it was for
him in that, to think that an issue of the sort they both
involved—an issue involving life and death, freedom and
subjugation—can be “speedily and finally settled” by the
Supreme Court, as President James Buchanan in his
inaugural address said the issue of slavery in the territories
would be. Quite to the contrary, by foreclosing all democratic
outlet for the deep passions this issue arouses, by banishing
the issue from the political forum that gives all participants,
even the losers, the satisfaction of a fair hearing and an honest
fight, by continuing the imposition of a rigid national rule
instead of allowing for regional differences, the Court merely
prolongs and intensifies the anguish.
We should get out of this area, where we have no right to
be, and where we do neither ourselves nor the country any
good by remaining.
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Meeting 9: The Administrative
State
Review Topics and Questions
– Distinguish the elements of the “administrative state,”
that is, be able to define what an administrative agency
is and how it differs (in form, agenda, and methods)
from the President himself, the legislature, and courts.
– What is informal rulemaking? What gives agencies the
power to make rules? What is the process (at a general
level)?
– Do the analyses undertaken by agencies tend to accord
with any of the theories of justice we studied?
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– Review and think again about the “controversies” I
summarize on pages 7 and 8.
– Chevron deference is the phrase for the federal courts’
practice of deferring to an agency’s interpretation of a
statute it administers. What does it mean to defer?
– Understand the analysis a court performs in a Chevron
deference case — what does it do in step 1, and what
does it do in step 2?
– What is the outline of the Gorsuch critique of Chevron,
and what are some counter-arguments?
The Administrative State
We have so far studied the decisionmaking principles and
structure of courts and learned a little about legislative
dynamics. Indeed, the basic, grade-school civics model depicts
the familiar interplay of the legislative, executive, and judicial
branches of government we learned about at the beginning of
the course. But this simple picture is not enough to
understand, even at a broad level, how the federal
government works – or how state governments work.
While Congress indeed passes statutes that the Executive
Branch is charged with enforcing, the Executive acts through
a large number of agencies, offices, and commissions
employing about two million people. (Note that this includes
the military and postal service.) Within the White House, the
president has assistants and advisors, but there are also a
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number of agencies or White House offices. Some of these
advisors and agency heads are Senate-confirmed positions.
They all generally report to the president’s chief of staff and
work in the West Wing, the adjacent Eisenhower Executive
Office Building, or in nearby offices.1
The vast majority of federal employees, obviously, do not
work within the White House. There are fifteen executive
branch departments (the heads of which are members of the
president’s cabinet).2 Often these will be called federal
agencies. But there are other Executive Branch agencies that
are not “executive departments” or White House offices.
Some of these “independent agencies” function just like the
executive departments (and heads of some, like the
Environmental Protection Agency and Central Intelligence
Agency, even attend presidential cabinet meetings). Others,
like the Social Security Administration, are “independent” in
the sense that their top officials can only be removed by the
president for cause, providing both policy independence and
some potential disunity within the “unitary executive.” Some
1
Among the agencies within the White House are the National
Security Council, the Council on Environmental Quality, the
Office of Management and Budget, and the Office of the Vice
President. Other White House offices include the Office of the
First Lady, the Office of Legislative Affairs, the White House
Counsel, and others.
2 They are: the Departments of Agriculture, Commerce, Defense,
Education, Energy, Health and Human Services, Homeland
Security, Housing and Urban Development, the Interior,
Justice, Labor, State, Transportation, Treasury, and Veterans
Affairs.
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such agencies, like the Federal Communications Commission
and the Federal Labor Relations Administration, are headed
by commissions of several people who are appointed on a
staggered basis. Some of these are even required to maintain a
partisan balance, further insulating them from presidential
control. While the Department of Justice has primary
authority to represent the United States in litigation, some
agencies have independent authority to bring suit.
Importantly, ”there is no single feature–not even a for–
cause removal provision-that every agency commonly thought
of as independent shares.”3 Instead, we have a large federal
bureaucracy, composed of agencies created by very different
statutes, with different missions, structures, and authority.
This heterogeneity reflects a staggered history of federal
power, crises, and opportunities. For an overview, the chart
available here (http://www.bu.edu/lawlibrary/graphics/
gov_chart.png) is very helpful.
Agencies as Institutions
Agencies are a distinctive type of governmental institution not
only in structure and mission but also in function. Consider
for a moment some observations we have made about
legislatures and courts.
On the positive side of the ledger, legislatures tend to be
representative, democratically accountable, able to conduct
hearings and to engage in wide-ranging fact-finding, and are
3
Kirti Datla and Richard L. Revesz, Deconstructing Independent
Agencies, 98 Cornell L. Rev. 769, 772 (2013).
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likely to be perceived as legitimate sources of law. On the
negative side, they can be vehicles of majoritarian oppression,
can be captured by interest groups, have very limited time to
address ongoing social problems, and may operate in ways
that conceal the effects of their actions (through, for example,
conference committee negotiations and ambiguous and
voluminous legislation).
Courts tend to be far more independent of political
influence, able to engage in deep (but narrow) fact-finding,
have agendas that are constrained by the need for concrete
disputes, have expertise in fit and justification (and treating
like cases alike), may be more likely to protect minority
interests, and are able to take a longer view than typical
election cycles. Some of these very advantages are also the
sources of disadvantage. Courts are often democratically
unaccountable, can use rhetorical subterfuge to hide raw
policy preferences in legal reasoning, lack agenda control, and
possess only blunt remedies (like injunctions and damages,
rather than the more fine-tuned machinery of regulatory
institutions).
Administrative agencies share some of these advantages and
disadvantages. But they are in many ways unlike typical
courts and unlike typical legislators.
For one, they tend to pair personnel with particular social
issues: review of the safety of particular classes of drugs, the
measurement and analysis of certain types of air pollution, the
evaluation of the safety of consumer products intended for
use by infants, for example. Courts and legislators both tend
to be generalist institutions, and legislators and judges are
expected to address themselves to the full range of issues.
Agencies, with their narrow range of responsibilities, can be
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loci of true expertise and experience and may be staffed by
scientists, economists, or otherwise by workers who
repeatedly deal with a narrow set of issues.
Consistent with narrow focus, agencies may devote
attention to the details of social problems and policy that
legislators have no time for – let alone the expertise to
appreciate. Congress will not spend time studying and
separately legislating the permissible concentrations of all the
potentially harmful chemicals and microorganisms in drinking
water. But it can direct the EPA to develop regulations that
establish maximum contaminant levels for contaminants that
“have an adverse effect on [human] health” and where the
regulations would “present[] a meaningful opportunity for
health risk reduction.” The Safe Drinking Water Act does just
this. It is a lengthy act (see https://www.epw.senate.gov/
sdwa.pdf), but it gives general directions and sets policy
goals, while leaving many technical and scientific details to
the employees at EPA who have the time, expertise, and
mandate to do such work.
Agencies also possess flexibility, at least to the extent
statutes give it to them, to address problems with finely
crafted solutions: whether through informal discussions, fines,
labeling, provision of information to Congress, or otherwise.
Finally, agencies are distinguished by the kind of public
participation they usually provide. It is true that the only
formal electoral accountability over agencies the public has is
through presidential election. But the opportunity directly to
comment, to receive notice of proposed rules, and to challenge
agency actions both within the agency and in court, all these
combine in an alternative form of democratic legitimacy.
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Whether it is enough – or perhaps even a greater measure of
real accountability than Congress is subject to – is debatable.
How they work
Federal agencies administer statutes passed by Congress. But
administration necessarily involves interpreting statutes and
elaborating their meaning. In doing so, agencies are subject to
reporting to and perhaps taking direction from the White
House, to the budgetary authority of Congress and the
regular review by Congress of agency actions (both through
documents and in hearings), to the comments of interested
parties, and to judicial review in litigation brought by private
citizens or other governmental units.
The general blueprint for agencies, in a way the
constitution of the regulatory state, is contained in the
Administrative Procedure Act. Enacted in 1946, the APA sets
out the standards by which courts will review agency actions,
these standards depending on which of four kinds of agency
action is challenged. Agency actions subject to judicial review
are either adjudication or rulemaking. And each of those
comes in formal or informal varieties. Formal actions of either
type involve trial-like procedures, with a hearing at which
evidence is presented and those subject to the action are
afforded an opportunity to appear and be heard. An agency is
required to resort to formal rule making or adjudication only
when Congress requires it, usually through the use of
language stating that the agency must reach a decision on the
record after an opportunity for a hearing.
All of these types of action can be important, but we will
focus on the most common type of federal agency action you
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might already be familiar with: informal rulemaking. Spoiler:
it’s not all that informal.
Informal rulemaking
Informal rulemaking is the primary method through which
administrative agencies make the rules that are the functional
equivalent of laws. The process is detailed but not very
complicated in concept once the general process is
understood. To appreciate this detail, take a look at this chart
of the regulatory process (https://www.reginfo.gov/public/
reginfo/Regmap/index.jsp) provided by the White House.
Informal rulemaking proceeds according to the
requirements of section 533 of the Administrative Procedure
Act. Here it is:
(a) This section applies, according to the provisions
thereof, except to the extent that there is involved–
(1) a military or foreign affairs function
of the United States; or
(2) a matter relating to agency
management or personnel or to public
property, loans, grants, benefits, or
contracts.
(b) General notice of proposed rule making shall be
published in the Federal Register, unless persons subject
thereto are named and either personally served or
otherwise have actual notice thereof in accordance with
law. The notice shall include–
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(1) a statement of the time, place, and
nature of public rule making proceedings;
(2) reference to the legal authority under
which the rule is proposed; and
(3) either the terms or substance of the
proposed rule or a description of the
subjects and issues involved. Except when
notice or hearing is required by statute,
this subsection does not apply–
(A) to interpretative rules,
general statements of policy,
or rules of agency
organization, procedure, or
practice; or
(B) when the agency for
good cause finds (and
incorporates the finding and
a brief statement of reasons
therefor in the rules issued)
that notice and public
procedure thereon are
impracticable, unnecessary,
or contrary to the public
interest.
(c) After notice required by this section, the agency shall
give interested persons an opportunity to participate in
the rule making through submission of written data,
views, or arguments with or without opportunity for oral
presentation. After consideration of the relevant matter
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presented, the agency shall incorporate in the rules
adopted a concise general statement of their basis and
purpose. When rules are required by statute to be made
on the record after opportunity for an agency hearing,
sections 556 and 557 of this title [governing formal
rulemaking] apply instead of this subsection.
(d) The required publication or service of a substantive
rule shall be made not less than 30 days before its
effective date, except–
(1) a substantive rule which grants or
recognizes an exemption or relieves a
restriction;
(2) interpretative rules and statements of
policy; or
(3) as otherwise provided by the agency for
good cause found and published with the
rule.
(e) Each agency shall give an interested person the right
to petition for the issuance, amendment, or repeal of a
rule.
The procedure here is also sometimes called “notice and
comment rulemaking.” The upshot is that the agency, acting
under statutory authority, publishes a notice of proposed rule
making, in which it discusses the proposed rule and solicits
comments from the public. It analyzes those comments and
ultimately, if it chooses to proceed, publishes a final rule.
As you will see in the notice of proposed rulemaking
included below, agencies not only publish a proposed rule’s
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text, they also engage in analysis of costs of benefits and of
other effects. Some of these analyses are statutorily mandated,
including, for example, those of environmental impacts,
paperwork that will be required, impacts on small businesses,
and effects on federalism.
Presidents have issued executive orders telling the agencies
what steps to take before publishing a notice of proposed
rulemaking and under what conditions it should do so.
Executive Order 12,866 still provides the general framework.
Agencies other than truly independent agencies may be
required to get White House approval before issuing an NPR.
If a proposed rule is “significant,” then it must be submitted to
the Office of Information and Regulatory Affairs (OIRA), a
White House office within the Office of Management and
Budget, along with an analysis of costs, benefits, and, usually,
the other statutorily required analyses.
OIRA reviews and may approve or “return” the regulation
to the agency for further work. Disputes between an agency
and OIRA are ultimately resolved by the president or vicepresident. If approved or exempt from review, the notice of
proposed rulemaking is published in the Federal Register and
on the web, and a sixty day comment period begins.
Comments may be submitted in writing or electronically.
After this period, a final rule is drafted. Again, if the rule is
significant, OIRA reviews it. If approved, the final rule is
published. Rules are usually required to be sent to Congress
and the General Accounting Office before taking effect, with
a sixty-day period for economically significant regulations.
Under the Congressional Review Act, Congress may, during
this period, vote to disapprove the rule by simple majority of
both houses and signature of the president.
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Together, Executive Orders 12,866 and 13,563, the Obama
administration modification to 12,866, also require agencies to
prepare semi-annual agendas containing all planned
regulations expected to have significant economic effects and
requires the periodic audit of regulations. The order generally
requires agencies to endeavor to minimize regulatory burden
and to engage in evidence-based cost-benefit analyses,
consider alternatives to regulation, and maximize net benefits,
including distributive benefits.
These are some of the nuts and bolts of executive
regulation. But the disagreements about how regulation
should occur and what it should it include can be quite
fundamental. Let us consider some of the typical arguments
about the administrative state now.
Controversies
The administrative state is fundamentally the result of two
structural transformations of federal power. The first was in
response to the Civil War, and the second, most relevant to
the growth and power of regulatory agencies, arose from the
New Deal’s response to the Great Depression. We will
discuss some of the points of controversy that have raged
since the New Deal in class. But here is a list of some of these
topics:
– What is the proper scope of federal legislative authority
under the clause of the Constitution giving Congress
the power to regulate interstate commerce and the clause
giving it the power to pass laws “necessary and proper”
to accomplish such regulation? The New Deal ushered
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in a dramatic expansion of this power, with the
Supreme Court’s concluding that this power includes
the ability to regulate purely intrastate activities that, in
the aggregate, have an effect on interstate commerce.
In any increasingly connected and complex economy,
just about everything has an effect on everything else.
In the past two decades, the Supreme Court has begun
to enforce some limits on this power, but it is unclear
whether these are effective or warranted. The upshot is
that the power of the regulatory state is derivative of
the power of Congress to regulate the economy.
– To what extent can Congress delegate policymaking
authority to agencies? The so-called non-delegation
doctrine requires Congress to provide agencies with an
“intelligible principle” to guide their decisionmaking.
But this constraint is not very meaningful in practice.
Congress often grants broad policymaking authority to
agencies.
– To what extent must agencies be under the ultimate
decisionmaking authority of the president? That is, to
what extent must we adhere to the unitary executive
theory? Congress has created numerous agencies that
are insulated from direct control by the president, and
these have generally been upheld as consistent with
Article II and the separation of powers.
– Are the accountability problems of agencies
unconstitutionally multiplied by their simultaneous
exercise of policymaking, adjudication, and
enforcement authorities?
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– To what degree is agency capture by regulated entities a
problem, and how insulated from politics and lobbying
should agencies be while at the same time responsive to
public comment?
– And, finally, the topic of the cases that follow: When
agencies implement statutes, they must interpret them.
Should those interpretations be granted deference by
courts, or should courts always be the ones who
declare what the law is and thus what statutes mean?
Next Up
Before we turn to Chevron, the most famous case in
administrative law, take a look at this Notice of Proposed
Rulemaking (at https://www.federalregister.gov/documents/
2016/03/02/2016-04609/removal-of-mandatory-country-oforigin-labeling-requirements-for-beef-and-pork-muscle-cutsground). You shouldn’t read this to master the details of this
particular rule. Rather, I want you to skim it and to observe
its structure and features. Note its summary, solicitation of
comments, explanation of the rule being proposed, and the
checklist of analyses it discusses, including its cost-benefit
analysis, its evaluation of the impact on small businesses, and
other reviews, and the actual rule language on the last couple
of pages.
Note in particular that the agency finds the benefits of
consumer labeling in this context difficult to quantify. Think
about the value you might personally place on labelling like
this. The costs of labeling, though, are relatively easier to
quantify, but doing so requires some estimation, including
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identifying the costs of keeping data about country of origin,
making new labels either in packing plants or at retail,
thinking about whether this would be a cost that sellers would
incur eventually anyway as packaging is redesigned, etc. As
you can see, it’s a tough job that requires statistical and
modeling expertise and familiarity with the industry.
Welcome to the world of administrative law.
Chevron, U.S.A. v. Natural
Resource Defense Council, Inc.,
467 U.S. 837
Justice STEVENS delivered the opinion of the
Court.
In the Clean Air Act Amendments of 1977, Congress enacted
certain requirements applicable to States that had not
achieved the national air quality standards established by the
Environmental Protection Agency (EPA) pursuant to earlier
legislation. The amended Clean Air Act required these
“nonattainment” States to establish a permit program
regulating “new or modified major stationary sources” of air
pollution. Generally, a permit may not be issued for a new or
modified major stationary source unless several stringent
conditions are met. The EPA regulation promulgated to
implement this permit requirement allows a State to adopt a
plantwide definition of the term “stationary source.” Under
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this definition, an existing plant that contains several
pollution-emitting devices may install or modify one piece of
equipment without meeting the permit conditions if the
alteration will not increase the total emissions from the plant.
The question presented by these cases is whether EPA’s
decision to allow States to treat all of the pollution-emitting
devices within the same industrial grouping as though they
were encased within a single “bubble” is based on a
reasonable construction of the statutory term “stationary
source.”
I
The EPA regulations containing the plantwide definition of
the term stationary source were promulgated on October 14,
1981. Respondents filed a timely petition for review in the
United States Court of Appeals for the District of Columbia
Circuit pursuant to 42 U. S. C. § 7607(b)(1). The Court of
Appeals set aside the regulations.
The court observed that the relevant part of the amended
Clean Air Act “does not explicitly define what Congress
envisioned as a ‘stationary source, to which the permit
program. . . should apply,” and further stated that the precise
issue was not “squarely addressed in the legislative history.”
In light of its conclusion that the legislative history bearing on
the question was “at best contradictory,” it reasoned that “the
purposes of the nonattainment program should guide our
decision here.” Based on two of its precedents concerning the
applicability of the bubble concept to certain Clean Air Act
programs, the court stated that the bubble concept was
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“mandatory” in programs designed merely to maintain
existing air quality, but held that it was “inappropriate” in
programs enacted to improve air quality. Since the purpose of
the permit program – its “raison d’etre,” in the court’s view –
was to improve air quality, the court held that the bubble
concept was inapplicable in these cases under its prior
precedents. It therefore set aside the regulations embodying
the bubble concept as contrary to law. We granted certiorari
to review that judgment, . . . and we now reverse.
The basic legal error of the Court of Appeals was to adopt a
static judicial definition of the term “stationary source” when
it had decided that Congress itself had not commanded that
definition. Respondents do not defend the legal reasoning of
the Court of Appeals. Nevertheless, since this Court reviews
judgments, not opinions, we must determine whether the
Court of Appeals’ legal error resulted in an erroneous
judgment on the validity of the regulations.
II
When a court reviews an agency’s construction of the statute
which it administers, it is confronted with two questions.
First, always, is the question whether Congress has directly
spoken to the precise question at issue. If the intent of
Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress. If, however, the court
determines Congress has not directly addressed the precise
question at issue, the court does not simply impose its own
construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if the
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statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the statute.
“The power of an administrative agency to administer a
congressionally created . . . program necessarily requires the
formulation of policy and the making of rules to fill any gap
left, implicitly or explicitly, by Congress.” If Congress has
explicitly left a gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a specific
provision of the statute by regulation. Such legislative
regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.
Sometimes the legislative delegation to an agency on a
particular question is implicit rather than explicit. In such a
case, a court may not substitute its own construction of a
statutory provision for a reasonable interpretation made by
the administrator of an agency.
We have long recognized that considerable weight should
be accorded to an executive department’s construction of a
statutory scheme it is entrusted to administer, and the
principle of deference to administrative interpretations
"has been consistently followed by this Court whenever
decision as to the meaning or reach of a statute has
involved reconciling conflicting policies, and a full
understanding of the force of the statutory policy in the
given situation has depended upon more than ordinary
knowledge respecting the matters subjected to agency
regulations.
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". . . If this choice represents a reasonable
accommodation of conflicting policies that were
committed to the agency’s care by the statute, we should
not disturb it unless it appears from the statute or its
legislative history that the accommodation is not one
that Congress would have sanctioned."
In light of these well-settled principles it is clear that the
Court of Appeals misconceived the nature of its role in
reviewing the regulations at issue. Once it determined, after
its own examination of the legislation, that Congress did not
actually have an intent regarding the applicability of the
bubble concept to the permit program, the question before it
was not whether in its view the concept is “inappropriate” in
the general context of a program designed to improve air
quality, but whether the Administrator’s view that it is
appropriate in the context of this particular program is a
reasonable one. Based on the examination of the legislation
and its history which follows, we agree with the Court of
Appeals that Congress did not have a specific intention on the
applicability of the bubble concept in these cases, and
conclude that the EPA’s use of that concept here is a
reasonable policy choice for the agency to make.
....
VII
In this Court respondents expressly reject the basic rationale
of the Court of Appeals’ decision. That court viewed the
statutory definition of the term “source” as sufficiently flexible
to cover either a plantwide definition, a narrower definition
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covering each unit within a plant, or a dual definition that
could apply to both the entire “bubble” and its components. It
interpreted the policies of the statute, however, to mandate
the plantwide definition in programs designed to maintain
clean air and to forbid it in programs designed to improve air
quality. Respondents place a fundamentally different
construction on the statute. They contend that the text of the
Act requires the EPA to use a dual definition – if either a
component of a plant, or the plant as a whole, emits over 100
tons of pollutant, it is a major stationary source. They thus
contend that the EPA rules adopted in 1980, insofar as they
apply to the maintenance of the quality of clean air, as well as
the 1981 rules which apply to nonattainment areas, violate the
statute.
Statutory Language
The definition of the term “stationary source” in § 111(a)(3)
refers to “any building, structure, facility, or installation”
which emits air pollution. This definition is applicable only to
the NSPS program by the express terms of the statute; the
text of the statute does not make this definition applicable to
the permit program. Petitioners therefore maintain that there
is no statutory language even relevant to ascertaining the
meaning of stationary source in the permit program aside
from § 302(j), which defines the term “major stationary
source.” We disagree with petitioners on this point.
The definition in § 302(j) tells us what the word “major”
means – a source must emit at least 100 tons of pollution to
qualify – but it sheds virtually no light on the meaning of the
term “stationary source.” It does equate a source with a
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facility – a “major emitting facility” and a “major stationary
source” are synonymous under § 302(j). The ordinary
meaning of the term “facility” is some collection of integrated
elements which has been designed and constructed to achieve
some purpose. Moreover, it is certainly no affront to common
English usage to take a reference to a major facility or a major
source to connote an entire plant as opposed to its constituent
parts. Basically, however, the language of § 302(j) simply does
not compel any given interpretation of the term “source.”
Respondents recognize that, and hence point to § 111(a)
(3). Although the definition in that section is not literally
applicable to the permit program, it sheds as much light on
the meaning of the word “source” as anything in the statute.
As respondents point out, use of the words “building,
structure, facility, or installation,” as the definition of source,
could be read to impose the permit conditions on an
individual building that is a part of a plant. A “word may have
a character of its own not to be submerged by its association.”
On the other hand, the meaning of a word must be
ascertained in the context of achieving particular objectives,
and the words associated with it may indicate that the true
meaning of the series is to convey a common idea. The
language may reasonably be interpreted to impose the
requirement on any discrete, but integrated, operation which
pollutes. This gives meaning to all of the terms – a single
building, not part of a larger operation, would be covered if it
emits more than 100 tons of pollution, as would any facility,
structure, or installation. Indeed, the language itself implies a
“bubble concept” of sorts: each enumerated item would seem
to be treated as if it were encased in a bubble. While
respondents insist that each of these terms must be given a
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discrete meaning, they also argue that § 111(a)(3) defines
“source” as that term is used in § 302(j). The latter section,
however, equates a source with a facility, whereas the former
defines “source” as a facility, among other items.
We are not persuaded that parsing of general terms in the
text of the statute will reveal an actual intent of Congress. We
know full well that this language is not dispositive; the terms
are overlapping and the language is not precisely directed to
the question of the applicability of a given term in the context
of a larger operation. To the extent any congressional “intent”
can be discerned from this language, it would appear that the
listing of overlapping, illustrative terms was intended to
enlarge, rather than to confine, the scope of the agency’s
power to regulate particular sources in order to effectuate the
policies of the Act.
Legislative History
In addition, respondents argue that the legislative history and
policies of the
Act foreclose the plantwide definition, and that the EPA’s
interpretation is not entitled to deference because it
represents a sharp break with prior interpretations of the Act.
Based on our examination of the legislative history, we
agree with the Court of Appeals that it is unilluminating. The
general remarks pointed to by respondents “were obviously
not made with this narrow issue in mind and they cannot be
said to demonstrate a Congressional desire . . . .”
Respondents’ argument based on the legislative history relies
heavily on Senator Muskie’s observation that a new source is
subject to the LAER requirement. But the full statement is
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ambiguous and like the text of § 173 itself, this comment does
not tell us what a new source is, much less that it is to have an
inflexible definition. We find that the legislative history as a
whole is silent on the precise issue before us. It is, however,
consistent with the view that the EPA should have broad
discretion in implementing the policies of the 1977
Amendments.
More importantly, that history plainly identifies the policy
concerns that motivated the enactment; the plantwide
definition is fully consistent with one of those concerns – the
allowance of reasonable economic growth – and, whether or
not we believe it most effectively implements the other, we
must recognize that the EPA has advanced a reasonable
explanation for its conclusion that the regulations serve the
environmental objectives as well. Indeed, its reasoning is
supported by the public record developed in the rulemaking
process, private studies.
Our review of the EPA’s varying interpretations of the
word “source” – both before and after the 1977 Amendments
– convinces us that the agency primarily responsible for
administering this important legislation has consistently
interpreted it flexibly – not in a sterile textual vacuum, but in
the context of implementing policy decisions in a technical
and complex arena. The fact that the agency has from time to
time changed its interpretation of the term “source” does not,
as respondents argue, lead us to conclude that no deference
should be accorded the agency’s interpretation of the statute.
An initial agency interpretation is not instantly carved in
stone. On the contrary, the agency, to engage in informed
rulemaking, must consider varying interpretations and the
wisdom of its policy on a continuing basis. Moreover, the fact
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that the agency has adopted different definitions in different
contexts adds force to the argument that the definition itself is
flexible, particularly since Congress has never indicated any
disapproval of a flexible reading of the statute.
Significantly, it was not the agency in 1980, but rather the
Court of Appeals that read the statute inflexibly to command
a plantwide definition for programs designed to maintain
clean air and to forbid such a definition for programs
designed to improve air quality. The distinction the court
drew may well be a sensible one, but our labored review of
the problem has surely disclosed that it is not a distinction
that Congress ever articulated itself, or one that the EPA
found in the statute before the courts began to review the
legislative work product. We conclude that it was the Court
of Appeals, rather than Congress or any of the
decisionmakers who are authorized by Congress to administer
this legislation, that was primarily responsible for the 1980
position taken by the agency.
Policy
The arguments over policy that are advanced in the parties’
briefs create the impression that respondents are now waging
in a judicial forum a specific policy battle which they
ultimately lost in the agency and in the 32 jurisdictions opting
for the “bubble concept,” but one which was never waged in
the Congress. Such policy arguments are more properly
addressed to legislators or administrators, not to judges.
In these cases the Administrator’s interpretation represents
a reasonable accommodation of manifestly competing
interests and is entitled to deference: the regulatory scheme is
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technical and complex, the agency considered the matter in a
detailed and reasoned fashion, and the decision involves
reconciling conflicting policies. Congress intended to
accommodate both interests, but did not do so itself on the
level of specificity presented by these cases. Perhaps that
body consciously desired the Administrator to strike the
balance at this level, thinking that those with great expertise
and charged with responsibility for administering the
provision would be in a better position to do so; perhaps it
simply did not consider the question at this level; and perhaps
Congress was unable to forge a coalition on either side of the
question, and those on each side decided to take their chances
with the scheme devised by the agency. For judicial purposes,
it matters not which of these things occurred.
Judges are not experts in the field, and are not part of
either political branch of the Government. Courts must, in
some cases, reconcile competing political interests, but not on
the basis of the judges’ personal policy preferences. In
contrast, an agency to which Congress has delegated
policymaking responsibilities may, within the limits of that
delegation, properly rely upon the incumbent administration’s
views of wise policy to inform its judgments. While agencies
are not directly accountable to the people, the Chief
Executive is, and it is entirely appropriate for this political
branch of the Government to make such policy choices –
resolving the competing interests which Congress itself either
inadvertently did not resolve, or intentionally left to be
resolved by the agency charged with the administration of the
statute in light of everyday realities.
When a challenge to an agency construction of a statutory
provision, fairly conceptualized, really centers on the wisdom
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of the agency’s policy, rather than whether it is a reasonable
choice within a gap left open by Congress, the challenge must
fail. In such a case, federal judges – who have no constituency
– have a duty to respect legitimate policy choices made by
those who do. The responsibilities for assessing the wisdom of
such policy choices and resolving the struggle between
competing views of the public interest are not judicial ones:
“Our Constitution vests such responsibilities in the political
branches.”
We hold that the EPA’s definition of the term “source” is a
permissible construction of the statute which seeks to
accommodate progress in reducing air pollution with
economic growth. “The Regulations which the Administrator
has adopted provide what the agency could allowably view
as . . . [an] effective reconciliation of these twofold ends . . . .”
The judgment of the Court of Appeals is reversed.
Gutierrez-Brizuela v. Lynch, 834
F.3d 1142
GORSUCH, Circuit Judge.
We recently confronted the thorny problem what to do when
an executive agency, exercising delegated legislative authority,
seeks to overrule a judicial precedent interpreting a
congressional statute. In our constitutional history, after all,
judicial declarations of what the law is haven’t often been
thought subject to revision by the executive, let alone by an
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executive endowed with delegated legislative authority. Still,
in recent years the Supreme Court has instructed us that,
when a statute is ambiguous and an executive agency’s
interpretation is reasonable, the agency may indeed exercise
delegated legislative authority to overrule a judicial precedent
in favor of the agency’s preferred interpretation. And that
development required us to confront this question: accepting
that an agency may overrule a court, may it do so not only
prospectively but also retroactively, applying its new rule to
completed conduct that transpired at a time when the
contrary judicial precedent appeared to control? Now that
curious question has returned, this time with a twist.
[As you just read, the Supreme Court held in Chevron that
an agency’s interpretation of a statute should control in a case
where the language of the statute is ambiguous and the
agency’s interpretation is reasonable. In National Cable and
Telecommunications Ass’n v. Brand X Internet Services, the
Supreme Court held that an agency’s interpretation should
trump a court’s previous, incompatible interpretation, when
the agency’s interpretation has satisfied the two-step Chevron
analysis. Here, the question before the Tenth Circuit Court of
Appeal is whether an agency’s interpretation only trumps a
court’s interpretation when applied to cases challenging
agency actions that occurred after the agency interpretation,
or whether the agency’s interpretation can be applied to
actions that took place when the court’s interpretation was the
governing interpretation. That is, should the agency’s
rejection of the court’s interpretation be given retroactive
effect? Writing for the Tenth Circuit, then-Judge, now
Justice Gorsuch concluded that nothing in Brand X or Chevron
necessitates the conclusion that an agency’s interpretation
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should be presumed to apply retroactively “to conduct
completed before [the agency’s interpretations] take legal
effect.” The case was then remanded back to the agency, here
the Board of Immigration Appeals, for further proceedings. In
a somewhat surprising turn, Judge Gorsuch then wrote the
following concurrence to his own majority opinion and raised
a much broader and more consequential issue.]
GORSUCH, Circuit Judge, concurring.
There’s an elephant in the room with us today. We have
studiously attempted to work our way around it and even left
it unremarked. But the fact is Chevron and Brand X permit
executive bureaucracies to swallow huge amounts of core
judicial and legislative power and concentrate federal power
in a way that seems more than a little difficult to square with
the Constitution of the framers’ design. Maybe the time has
come to face the behemoth.
In enlightenment theory and hard won experience under a
tyrannical king the founders found proof of the wisdom of a
government of separated powers. In the avowedly political
legislature, the framers endowed the people’s representatives
with the authority to prescribe new rules of general
applicability prospectively. In the executive, they placed the
task of ensuring the legislature’s rules are faithfully executed
in the hands of a single person also responsive to the people.
And in the judiciary, they charged individuals insulated from
political pressures with the job of interpreting the law and
applying it retroactively to resolve past disputes. This
allocation of different sorts of power to different sorts of
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decisionmakers was no accident. To adapt the law to changing
circumstances, the founders thought, the collective wisdom of
the people’s representatives is needed. To faithfully execute
the laws often demands the sort of vigor hard to find in
management-by-committee. And to resolve cases and
controversies over past events calls for neutral
decisionmakers who will apply the law as it is, not as they
wish it to be.
Even more importantly, the founders considered the
separation of powers a vital guard against governmental
encroachment on the people’s liberties, including all those
later enumerated in the Bill of Rights. What would happen,
for example, if the political majorities who run the legislative
and executive branches could decide cases and controversies
over past facts? They might be tempted to bend existing laws,
to reinterpret and apply them retroactively in novel ways and
without advance notice. Effectively leaving parties who
cannot alter their past conduct to the mercy of majoritarian
politics and risking the possibility that unpopular groups
might be singled out for this sort of mistreatment — and
raising along the way, too, grave due process (fair notice) and
equal protection problems. Conversely, what would happen if
politically unresponsive and life-tenured judges were
permitted to decide policy questions for the future or try to
execute those policies? The very idea of self-government
would soon be at risk of withering to the point of
pointlessness. It was to avoid dangers like these, dangers the
founders had studied and seen realized in their own time, that
they pursued the separation of powers. A government of
diffused powers, they knew, is a government less capable of
invading the liberties of the people.
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Founders meet Brand X. Precisely to avoid the possibility of
allowing politicized decisionmakers to decide cases and
controversies about the meaning of existing laws, the framers
sought to ensure that judicial judgments “may not lawfully be
revised, overturned or refused faith and credit by” the elected
branches of government. Yet this deliberate design, this
separation of functions aimed to ensure a neutral
decisionmaker for the people’s disputes, faces more than a
little pressure from Brand X. Under Brand X’s terms, after all,
courts are required to overrule their own declarations about
the meaning of existing law in favor of interpretations
dictated by executive agencies. By Brand X’s own telling, this
means a judicial declaration of the law’s meaning in a case or
controversy before it is not “authoritative,” . . . but is instead
subject to revision by a politically accountable branch of
government.
That’s exactly what happened to Mr. Padilla-Caldera. First
this court read the relevant immigration statutes to permit an
alien who has entered the country illegally to seek a
discretionary adjustment of status from the Attorney General.
Then we remanded the case to allow the Attorney General to
make that discretionary decision in Mr. Padilla-Caldera’s
case. But instead of undertaking that task, the BIA
interpreted the statutory scheme to reach the opposite
conclusion we had, applied its new statutory interpretation to
Mr. Padilla-Caldera, and held him categorically forbidden
from receiving a discretionary adjustment of status. When the
case returned to this court, we conceded that the relevant
statutes were indeed ambiguous and acknowledged that Brand
X required us to defer to the BIA’s new interpretation, in the
end holding that Mr. Padilla-Caldera was, as the agency said,
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categorically prohibited from applying for a discretionary
adjustment of status. Quite literally then, after this court
declared the statutes’ meaning and issued a final decision, an
executive agency was permitted to (and did) tell us to reverse
our decision like some sort of super court of appeals. If that
doesn’t qualify as an unconstitutional revision of a judicial
declaration of the law by a political branch, I confess I begin
to wonder whether we’ve forgotten what might.
Of course, since Padilla–Caldera we have reentered the field
and sought to tame some of Brand X’s more exuberant
consequences. So, for example, in De Niz Robles and now again
today we have held that an agency’s revision of a judicial
decision of what the law is may bear only prospective effect,
governing only future cases and controversies. As a result, an
executive agency may no longer revise a judicial decision
about the law’s meaning with retroactive effect, like the BIA
managed to do in the case of Mr. Padilla-Caldera. No doubt
that addresses some of the due process and equal protection
problems that follow from allowing politicized decisionmakers
to decide cases and controversies about the meaning of
existing law.
But even this doesn’t fully resolve the problem. When the
political branches disagree with a judicial interpretation of
existing law, the Constitution prescribes the appropriate
remedial process. It’s called legislation. Admittedly, the
legislative process can be an arduous one. But that’s no bug in
the constitutional design: it is the very point of the design.
The framers sought to ensure that the people may rely on
judicial precedent about the meaning of existing law until and
unless that precedent is overruled or the purposefully painful
process of bicameralism and presentment can be cleared.
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Indeed, the principle of stare decisis was one “entrenched and
revered by the framers” precisely because they knew its
importance “as a weapon against . . . tyranny.” Yet even as
now semi-tamed (at least in this circuit), Brand X still risks
trampling the constitutional design by affording executive
agencies license to overrule a judicial declaration of the law’s
meaning prospectively, just as legislation might — and all
without the inconvenience of having to engage the legislative
processes the Constitution prescribes. A form of Lawmaking
Made Easy, one that permits all too easy intrusions on the
liberty of the people.
Of course, Brand X asserts that its rule about judicial
deference to executive revisions follows logically “from
Chevron itself.” And that assessment seems fair enough as far
as it goes. If you accept Chevron’s claim that legislative
ambiguity represents a license to executive agencies to render
authoritative judgments about what a statute means, Brand X’s
rule requiring courts to overturn their own contrary
judgments does seem to follow pretty naturally.
But acknowledging this much only brings the colossus now
fully into view. In the Administrative Procedure Act (APA),
Congress vested the courts with the power to “interpret . . .
statutory provisions” and overturn agency action inconsistent
with those interpretations. Congress assigned the courts much
the same job in the immigration field where we happen to find
ourselves today. And there’s good reason to think that
legislative assignments like these are often constitutionally
compelled. After all, the question whether Congress has or
hasn’t vested a private legal right in an individual “is, in its
nature, judicial, and must be tried by the judicial authority.”
Yet, rather than completing the task expressly assigned to us,
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rather than “interpret[ing] . . . statutory provisions,” declaring
what the law is, and overturning inconsistent agency action,
Chevron step two tells us we must allow an executive agency to
resolve the meaning of any ambiguous statutory provision. In
this way, Chevron seems no less than a judge-made doctrine for
the abdication of the judicial duty. Of course, some role
remains for judges even under Chevron. At Chevron step one,
judges decide whether the statute is “ambiguous,” and at step
two they decide whether the agency’s view is “reasonable.”
But where in all this does a court interpret the law and say
what it is? When does a court independently decide what the
statute means and whether it has or has not vested a legal
right in a person? Where Chevron applies that job seems to
have gone extinct.
Transferring the job of saying what the law is from the
judiciary to the executive unsurprisingly invites the very sort
of due process (fair notice) and equal protection concerns the
framers knew would arise if the political branches intruded on
judicial functions. Under Chevron the people aren’t just
charged with awareness of and the duty to conform their
conduct to the fairest reading of the law that a detached
magistrate can muster. Instead, they are charged with an
awareness of Chevron; required to guess whether the statute
will be declared “ambiguous” (courts often disagree on what
qualifies); and required to guess (again) whether an agency’s
interpretation will be deemed “reasonable.” Who can even
attempt all that, at least without an army of perfumed lawyers
and lobbyists? And, of course, that’s not the end of it. Even if
the people somehow manage to make it through this far
unscathed, they must always remain alert to the possibility
that the agency will reverse its current view 180 degrees
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anytime based merely on the shift of political winds and still
prevail. Neither, too, will agencies always deign to announce
their views in advance; often enough they seek to impose their
“reasonable” new interpretations only retroactively in
administrative adjudications. Perhaps allowing agencies
rather than courts to declare the law’s meaning bears some
advantages, but it also bears its costs. And the founders were
wary of those costs, knowing that, when unchecked by
independent courts exercising the job of declaring the law’s
meaning, executives throughout history had sought to exploit
ambiguous laws as license for their own prerogative.
Some claim to see a way out of our apparent predicament.
They suggest that Chevron isn’t so much about permitting
agencies to assume the judicial function of interpreting the law
as it is about permitting agencies to make the law, to effect
their own preferences about optimal public policy when a
statute is ambiguous. On this account, Chevron’s rule of
deference isn’t about trying to make judges out of agencies or
letting them usurp the judicial function. Rather, it’s about
letting agencies fill legislative voids. When Congress passes
ambiguous legislation, Chevron means we should read that as
signaling a legislative “intention” to “delegate” to the
executive the job of making any reasonable “legislative” policy
choices it thinks wise. And, to be sure, Chevron itself espouses
just this view. In both De Niz Robles and again today we
expressly acknowledge as much.
But however that may be, none of it rescues us from our
riddle. For whatever the agency may be doing under Chevron,
the problem remains that courts are not fulfilling their duty to
interpret the law and declare invalid agency actions
inconsistent with those interpretations in the cases and
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controversies that come before them. A duty expressly
assigned to them by the APA and one often likely compelled
by the Constitution itself. That’s a problem for the judiciary.
And it is a problem for the people whose liberties may now be
impaired not by an independent decisionmaker seeking to
declare the law’s meaning as fairly as possible — the
decisionmaker promised to them by law — but by an
avowedly politicized administrative agent seeking to pursue
whatever policy whim may rule the day. Those problems
remain uncured by this line of reply.
Maybe as troubling, this line of reply invites a nest of
questions even taken on its own terms. Chevron says that we
should infer from any statutory ambiguity Congress’s “intent”
to “delegate” its “legislative authority” to the executive to
make “reasonable” policy choices. But where exactly has
Congress expressed this intent? Trying to infer the intentions
of an institution composed of 535 members is a notoriously
doubtful business under the best of circumstances. And these
are not exactly the best of circumstances. Chevron suggests we
should infer an intent to delegate not because Congress has
anywhere expressed any such wish, not because anyone
anywhere in any legislative history even hinted at that
possibility, but because the legislation in question is silent
(ambiguous) on the subject. Usually we’re told that “an
agency literally has no power to act . . . unless and until
Congress confers power upon it.” Yet Chevron seems to stand
this ancient and venerable principle nearly on its head.
Maybe worse still, Chevron’s inference about hidden
congressional intentions seems belied by the intentions
Congress has made textually manifest. After all and again, in
the APA Congress expressly vested the courts with the
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responsibility to “interpret . . . statutory provisions” and
overturn agency action inconsistent with those
interpretations. Meanwhile not a word can be found here
about delegating legislative authority to agencies. On this
record, how can anyone fairly say that Congress “intended”
for courts to abdicate their statutory duty under § 706 and
instead “intended” to delegate away its legislative power to
executive agencies? The fact is, Chevron’s claim about
legislative intentions is no more than a fiction — and one that
requires a pretty hefty suspension of disbelief at that.
Even supposing, too, that we could overlook this problem
— even supposing we somehow had something resembling an
authentic congressional delegation of legislative authority —
you still might wonder: can Congress really delegate its
legislative authority — its power to write new rules of general
applicability — to executive agencies? The Supreme Court
has long recognized that under the Constitution “congress
cannot delegate legislative power to the president” and that
this “principle [is] universally recognized as vital to the
integrity and maintenance of the system of government
ordained by the constitution.” Yet on this account of Chevron
we’re examining, its whole point and purpose seems to be
exactly that—to delegate legislative power to the executive
branch.
Not only is Chevron’s purpose seemingly at odds with the
separation of legislative and executive functions, its effect
appears to be as well. While the line between legislative and
executive functions may sometimes be murky, history does
teach us a couple of things about that line. First, we know
that, consistent with the separation of powers, Congress may
condition the application of a new rule of general applicability
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on factual findings to be made by the executive (so, for
example, forfeiture of assets might be required if the
executive finds a foreign country behaved in a specified
manner). Second, we know Congress may allow the executive
to resolve “details” (like, say, the design of an appropriate tax
stamp). Yet Chevron pretty clearly involves neither of these
kinds of executive functions and, in this way and as a
historical matter, appears instead to qualify as a violation of
the separation of powers.
Of course, in relatively recent times the Court has relaxed
its approach to claims of unlawful legislative delegation. It has
suggested (at least in the civil arena) that Congress may allow
the executive to make new rules of general applicability that
look a great deal like legislation, so long as the controlling
legislation contains an “intelligible principle” that “clearly
delineates the general policy” the agency is to apply and “the
boundaries of [its] delegated authority.” This means Congress
must at least “provide substantial guidance on setting . . .
standards that affect the entire national economy.” Some
thoughtful judges and scholars have questioned whether
standards like these serve as much as a protection against the
delegation of legislative authority as a license for it,
undermining the separation between the legislative and
executive powers that the founders thought essential.
But even taking the forgiving intelligible principle test as a
given, it’s no small question whether Chevron can clear it. For
if an agency can enact a new rule of general applicability
affecting huge swaths of the national economy one day and
reverse itself the next (and that is exactly what Chevron
permits, . . . you might be forgiven for asking: where’s the
“substantial guidance” in that? And if an agency can interpret
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the scope of its statutory jurisdiction one way one day and
reverse itself the next . . . , you might well wonder: where are
the promised “clearly delineated boundaries” of agency
authority? The Supreme Court once unanimously declared
that a statute affording the executive the power to write an
industrial code of competition for the poultry industry
violated the separation of powers. And if that’s the case, you
might ask how is it that Chevron — a rule that invests agencies
with pretty unfettered power to regulate a lot more than
chicken — can evade the chopping block.
Even under the most relaxed or functionalist view of our
separated powers some concern has to arise, too, when so
much power is concentrated in the hands of a single branch of
government. After all, Chevron invests the power to decide the
meaning of the law, and to do so with legislative policy goals
in mind, in the very entity charged with enforcing the law.
Under its terms, an administrative agency may set and revise
policy (legislative), override adverse judicial determinations
(judicial), and exercise enforcement discretion (executive).
Add to this the fact that today many administrative agencies
“wield[] vast power” and are overseen by political appointees
(but often receive little effective oversight from the chief
executive to whom they nominally report), and you have a
pretty potent mix. Under any conception of our separation of
powers, I would have thought powerful and centralized
authorities like today’s administrative agencies would have
warranted less deference from other branches, not more.
None of this is to suggest that Chevron is “the very definition of
tyranny.” But on any account it certainly seems to have added
prodigious new powers to an already titanic administrative
state — and spawned along the way more than a few due
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process and equal protection problems of the sort documented
in the court’s opinion today and in De Niz Robles. It’s an
arrangement, too, that seems pretty hard to square with the
Constitution of the founders’ design and, as Justice
Frankfurter once observed, “[t]he accretion of dangerous
power does not come in a day. It does come, however slowly,
from the generative force of unchecked disregard of the
restrictions” imposed by the Constitution.
What I suspect about Chevron’s compatibility with the
separation of powers finds confirmation in what I know. The
Supreme Court has expressly instructed us not to apply
Chevron deference when an agency seeks to interpret a
criminal statute. Why? Because, we are seemingly told, doing
so would violate the Constitution by forcing the judiciary to
abdicate the job of saying what the law is and preventing
courts from exercising independent judgment in the
interpretation of statutes. An admirable colleague has noted
that the same rationale would appear to preclude affording
Chevron deference to agency interpretations of statutes that
bear both civil and criminal applications. A category that
covers a great many (most?) federal statutes today. And try as
I might, I have a hard time identifying a principled reason
why the same rationale doesn’t also apply to statutes with
purely civil application. After all, the APA doesn’t distinguish
between purely civil and other kinds of statutes when
describing the interpretive duties of courts. Neither did the
founders reserve their concerns about political
decisionmakers deciding the meaning of existing law to
criminal cases; Article III doesn’t say judges should say what
the law is or decide whether legal rights have or haven’t
vested and been violated only when a crime is alleged. And
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certainly Marbury did not speak so meekly: it affirmed the
judiciary’s duty to say what the law is in a case that involved
the interpretation of, yes, a civil statute affecting individual
rights.
Some have suggested that criminal statutes should be
treated differently when it comes to Chevron because they are
not “administered” by an agency. I take this as a roundabout
way of suggesting that Congress hasn’t “delegated” its
legislative authority in the criminal context like it has in the
civil. But as we’ve seen, the claim that Congress has delegated
legislative authority even in the civil context is no more than a
fiction. And for that matter it’s hard to see why the Justice
Department doesn’t “administer” criminal statutes in much
the same way other agencies “administer” various civil
statutes. Of course, criminal law enforcement takes place in
the courts, not before administrative agencies. But often
enough civil administrative actions also depend on court
approval for their effectiveness, and as we’ve seen this may be
a matter not merely of statutory but sometimes constitutional
imperative.
Other arguments for rejecting Chevron deference (only) in
criminal matters seem equally shaky. Some suggest that
principles of due process and equal protection demand that
the criminal law be clear and clearly given by judges. Others
suggest that prosecutorial agencies have too many incentives
to interpret criminal statutes expansively. But while concerns
about due process and fair notice surely reach their apex in
the criminal context, I am uncertain why we would view that
as a license to neglect attending to them in the civil context.
Especially given the power our modern administrative state
already enjoys, even without Chevron, to penalize persons in
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ways that can destroy their livelihoods and intrude on their
liberty even when exercising only purely civil powers. And
given that the line between “criminal” and “civil” statutes has
often proven tricky enough to administer. Neither, too, are
prosecutorial agencies known to be alone in their capacity and
willingness to interpret statutes aggressively.
Beyond all that, Chevron has presented its fair share of
practical problems in its administration. By way of
illustration, consider just two examples. First, we once
thought Chevron’s presumption of delegation for ambiguous
statutes applied uniformly to Congress’s work. Then we
learned it doesn’t apply to criminal statutes. Now we know it
doesn’t always apply even when it comes to purely civil
statutes. In United States v. Mead Corp., . . . the Court added a
“step zero” to the Chevron sequence, one that requires courts
to employ a multi-factor balancing test to decide whether to
proceed to apply Chevron to a civil statute. So today courts will
only sometimes apply Chevron deference to ambiguous civil
statutes. Neither, respectfully, does looking to the Supreme
Court’s case law supply a great deal of guidance on how to
apply Mead’s balancing test. In recent years, the Court has
declined to apply Chevron deference to arguably ambiguous
civil statutes but it has only sometimes cited the Mead
balancing test as the reason, leaving more than a few litigants
and lower courts to wonder how they are supposed to
proceed.
Second, long lingering questions linger still about just how
rigorous Chevron step one is supposed to be. In deciding
whether Congress has “directly spoken” to a question or left it
“ambiguous,” what materials are we to consult? The narrow
language of the statute alone? Its structure and history?
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Canons of interpretation? Committee reports? Every scrap of
legislative history we can dig up? Some claim to have
identified at least three potential variants of Chevron
jurisprudence governing the line between step one and step
two in the Supreme Court’s case law.
Of course, we often retain even mistaken judicial decisions
because reliance interests have arisen around them. But
Chevron is a procedural rule, and procedural rules generally
receive little precedential consideration when experience
proves them problematic in their administration. No doubt
this is because parties form reliance interests primarily around
substantive rules of law that allocate property and define the
limits of permitted behavior, while procedural rules merely
govern how courts will go about their own business when
deciding disputes many years later that parties often cannot
foresee when arranging their affairs. And it is particularly
hard to see how Chevron might have engendered serious
reliance interests by individuals (if not agencies). Not only
because of the uncertainties associated with its administration.
But because even when clearly and properly implemented,
Chevron’s very point is to permit agencies to upset the settled
expectations of the people by changing policy direction
depending on the agency’s mood at the moment. So if reliance
interests count, they would seem to count against retaining
Chevron.
All of which raises this question: what would happen in a
world without Chevron? If this goliath of modern
administrative law were to fall? Surely Congress could and
would continue to pass statutes for executive agencies to
enforce. And just as surely agencies could and would continue
to offer guidance on how they intend to enforce those
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statutes. The only difference would be that courts would then
fulfill their duty to exercise their independent judgment about
what the law is. Of course, courts could and would consult
agency views and apply the agency’s interpretation when it
accords with the best reading of a statute. But de novo judicial
review of the law’s meaning would limit the ability of an
agency to alter and amend existing law. It would avoid the
due process and equal protection problems of the kind
documented in our decisions. It would promote reliance
interests by allowing citizens to organize their affairs with
some assurance that the rug will not be pulled from under
them tomorrow, the next day, or after the next election. And
an agency’s recourse for a judicial declaration of the law’s
meaning that it dislikes would be precisely the recourse the
Constitution prescribes — an appeal to higher judicial
authority or a new law enacted consistent with bicameralism
and presentment. We managed to live with the administrative
state before Chevron. We could do it again. Put simply, it
seems to me that in a world without Chevron very little would
change — except perhaps the most important things.
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Meeting 10: Interpretation
For this class, read Justice Scalia’s defense of textualism and
of a certain kind of originalism and then a series of exchanges
between Judge Posner and Bryan Garner:
– Antonin Scalia, Common-Law Courts in a Civil-Law
System: The Role of United States Federal Courts in
Interpreting the Constitutionand Laws, at http://
tannerlectures.utah.edu/_documents/a-to-z/s/
scalia97.pdf (pages 79-100),
– Richard Posner, The Incoherence of Antonin Scalia, at
https://newrepublic.com/article/106441/scalia-garnerreading-the-law-textual-originalism,
– Bryan Garner and Richard Posner, How Nuanced is
Justice Scalia’s Judicial Philosophy? An Exchange, at https://
newrepublic.com/article/107001/how-nuanced-justicescalias-judicial-philosophy-exchange.
Then read Cass Sunstein, There Is Nothing that Interpretation
Just Is, at https://conservancy.umn.edu/bitstream/handle/
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11299/183132/1%20-%20Sunstein.pdf?
sequence=1&isAllowed=y.
Review Questions
– Can you identify whether an interpretive argument
(whether statutory or constitutional) is textualist,
intentionalist, and purposivist? What do those terms
mean, and can you make an argument of each type?
(Think of our “no vehicles in the park” example.)
– What is Scalia’s justification for objective interpretation
of text rather than attempting to interpret what was
meant or to attempt to serve a legislature’s broader
purposes?
– Do you understand Posner’s main critiques of
“textualism”: Conservative bias, bad results, judicial
incompetence as historians, break with tradition,
impossibility? Can you argue in support and against
him?
– There’s a lot going on in Sunstein’s article, but the main
idea is that all methods of interpretation have
problems. And none seems compelled by any
authoritative document. Do you have a preferred
method of interpretation? Is it the same for
constitutions, statutes, and contracts - or is it different
for each of these kinds of legal texts? Is your method
susceptible to any of Sunstein’s critiques?
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– Generally, be able to identify weaknesses in any
particular interpretive method. (Originalists have to
grapple with what original thing should be privileged
and with potentially unsavory results in important
cases. Textualists have to deal with ambiguity.
Pragmatists and other non-originalists may have to deal
with allegations of political manipulation or lack of
legitimacy. Intentionalists have to deal with the lack of
complete intentions in any human action. Think of the
shopping list examples.)
– Is a burrito a sandwich?
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Meeting 11: Deference and
Scrutiny
Review Questions
– Why is Lochner criticized as judicial overreach? What
kind of analysis does the majority engage in, and what
does Justice Holmes say about it?
– Can you distinguish rational basis and strict scrutiny?
What are they, and why and when must we choose
between them?
– According to Carolene Products what should trigger strict
scrutiny, and when should courts engage only in
rational basis review? How does this differ from
Lochner?
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– Do you see how these cases — and Obergefell — are
about (a) the standard of review a court should apply
to the judgment made by another institution and (b)
what policymaking should be left for legislatures and
what areas of policymaking should be governed by
courts?
– How does Obergefell suggest we should identify the
rights that are fundamental and therefore protected by
strict scrutiny?
– What is C.J. Roberts’ argument that the majority has
engaged in Lochner-ism?
Deference and Scrutiny
The cases that follow illustrate how courts have understood
their interpretive and regulatory role in legal systems – how
they have debated and continue to debate the “which
institution should decide what” question.
Lochner v. New York, 198 U.S. 45
(1905)
MR. JUSTICE PECKHAM.
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The indictment, it will be seen, charges that the plaintiff in
error violated the one hundred and tenth section of article 8,
chapter 415, of the Laws of 1897, known as the labor law of
the State of New York, in that he wrongfully and unlawfully
required and permitted an employe working for him to work
more than sixty hours in one week. . . . . The mandate of the
statute that “no employe shall be required or permitted to
work,” is the substantial equivalent of an enactment that “no
employe shall contract or agree to work,” more than ten hours
per day, and as there is no provision for special emergencies
the statute is mandatory in all cases. . . . .
The statute necessarily interferes with the right of contract
between the employer and employes, concerning the number
of hours in which the latter may labor in the bakery of the
employer. The general right to make a contract in relation to
his business is part of the liberty of the individual protected
by the Fourteenth Amendment of the Federal Constitution.
Under that provision no State can deprive any person of life,
liberty or property without due process of law. The right to
purchase or to sell labor is part of the liberty protected by this
amendment, unless there are circumstances which exclude the
right. There are, however, certain powers, existing in the
sovereignty of each State in the Union, somewhat vaguely
termed police powers, the exact description and limitation of
which have not been attempted by the courts. Those
powers . . . relate to the safety, health, morals and general
welfare of the public. Both property and liberty are held on
such reasonable conditions as may be imposed by the
governing power of the State in the exercise of those powers,
and with such conditions the Fourteenth Amendment was not
designed to interfere.
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The State, therefore, has power to prevent the individual
from making certain kinds of contracts, and in regard to them
the Federal Constitution offers no protection. If the contract
be one which the State, in the legitimate exercise of its police
power, has the right to prohibit, it is not prevented from
prohibiting it by the Fourteenth Amendment. . . . . Therefore,
when the State, by its legislature, in the assumed exercise of
its police powers, has passed an act which seriously limits the
right to labor or the right of contract . . . , it becomes of great
importance to determine which shall prevail — the right of
the individual to labor for such time as he may choose, or the
right of the State to prevent the individual from laboring or
from entering into any contract to labor, beyond a certain
time prescribed by the State.
This court has recognized the existence and upheld the
exercise of the police powers of the States in many cases
which might fairly be considered as border ones . . . . [A Utah
statute was upheld that] limit[ed] the employment of
workmen in all underground mines or workings, to eight
hours per day, “except in cases of emergency, where life or
property is in imminent danger.” It also limited the hours of
labor in smelting and other institutions for the reduction or
refining of ores or metals to eight hours per day, except in like
cases of emergency. . . . . It was held that the kind of
employment, mining, smelting, etc., and the character of the
employes in such kinds of labor, were such as to make it
reasonable and proper for the State to interfere to prevent the
employes from being constrained by the rules laid down by
the proprietors in regard to labor. . . . .
. . . . The latest case decided by this court, involving the
police power, is that of Jacobson v. Massachusetts. It related to
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compulsory vaccination, and the law was held valid as a
proper exercise of the police powers with reference to the
public health. It was stated in the opinion that it was a case
“of an adult who, for aught that appears, was himself in
perfect health and a fit subject for vaccination, and yet, while
remaining in the community, refused to obey the statute and
the regulation adopted in execution of its provisions for the
protection of the public health and the public safety,
confessedly endangered by the presence of a dangerous
disease.” That case is also far from covering the one now
before the court.
Petit v. Minnesota , was upheld as a proper exercise of the
police power relating to the observance of Sunday, and the
case held that the legislature had the right to declare that, as
matter of law, keeping barber shops open on Sunday was not
a work of necessity or charity.
It must, of course, be conceded that there is a limit to the
valid exercise of the police power by the State. There is no
dispute concerning this general proposition. Otherwise the
Fourteenth Amendment would have no efficacy and the
legislatures of the States would have unbounded power, and it
would be enough to say that any piece of legislation was
enacted to conserve the morals, the health or the safety of the
people; such legislation would be valid, no matter how
absolutely without foundation the claim might be. The claim
of the police power would be a mere pretext — become
another and delusive name for the supreme sovereignty of the
State to be exercised free from constitutional restraint. This is
not contended for. In every case that comes before this court,
therefore, where legislation of this character is concerned and
where the protection of the Federal Constitution is sought,
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the question necessarily arises: Is this a fair, reasonable and
appropriate exercise of the police power of the State, or is it
an unreasonable, unnecessary and arbitrary interference with
the right of the individual to his personal liberty or to enter
into those contracts in relation to labor which may seem to
him appropriate or necessary for the support of himself and
his family? Of course the liberty of contract relating to labor
includes both parties to it. The one has as much right to
purchase as the other to sell labor.
This is not a question of substituting the judgment of
the court for that of the legislature. If the act be within the
power of the State it is valid, although the judgment of the
court might be totally opposed to the enactment of such a law.
But the question would still remain: Is it within the police
power of the State? and that question must be answered by
the court.
The question whether this act is valid as a labor law, pure
and simple, may be dismissed in a few words. There is no
reasonable ground for interfering with the liberty of person or
the right of free contract, by determining the hours of labor,
in the occupation of a baker. There is no contention that
bakers as a class are not equal in intelligence and capacity to
men in other trades or manual occupations, or that they are
not able to assert their rights and care for themselves without
the protecting arm of the State, interfering with their
independence of judgment and of action. They are in no sense
wards of the State. Viewed in the light of a purely labor law,
with no reference whatever to the question of health, we think
that a law like the one before us involves neither the safety,
the morals nor the welfare of the public, and that the interest
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of the public is not in the slightest degree affected by such an
act. . . . .
. . . . The mere assertion that the subject relates though but
in a remote degree to the public health does not necessarily
render the enactment valid. The act must have a more direct
relation, as a means to an end, and the end itself must be
appropriate and legitimate, before an act can be held to be
valid which interferes with the general right of an individual
to be free in his person and in his power to contract in
relation to his own labor.
....
We think that there can be no fair doubt that the trade of a
baker, in and of itself, is not an unhealthy one to that degree
which would authorize the legislature to interfere with the
right to labor, and with the right of free contract on the part
of the individual, either as employer or employe. In looking
through statistics regarding all trades and occupations, it may
be true that the trade of a baker does not appear to be as
healthy as some other trades, and is also vastly more healthy
than still others. . . . . It is unfortunately true that labor, even
in any department, may possibly carry with it the seeds of
unhealthiness. But are we all, on that account, at the mercy of
legislative majorities? A printer, a tinsmith, a locksmith, a
carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a
lawyer’s or a physician’s clerk, or a clerk in almost any kind of
business, would all come under the power of the legislature,
on this assumption. No trade, no occupation, no mode of
earning one’s living, could escape this all-pervading power,
and the acts of the legislature in limiting the hours of labor in
all employments would be valid, although such limitation
might seriously cripple the ability of the laborer to support
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himself and his family. In our large cities there are many
buildings into which the sun penetrates for but a short time in
each day, and these buildings are occupied by people carrying
on the business of bankers, brokers, lawyers, real estate, and
many other kinds of business, aided by many clerks,
messengers, and other employes. Upon the assumption of the
validity of this act under review, it is not possible to say that
an act, prohibiting lawyers’ or bank clerks, or others, from
contracting to labor for their employers more than eight hours
a day, would be invalid. It might be said that it is unhealthy to
work more than that number of hours in an apartment lighted
by artificial light during the working hours of the day; that the
occupation of the bank clerk, the lawyer’s clerk, the real
estate clerk, or the broker’s clerk in such offices is therefore
unhealthy, and the legislature in its paternal wisdom must,
therefore, have the right to legislate on the subject of and to
limit the hours for such labor, and if it exercises that power
and its validity be questioned, it is sufficient to say, it has
reference to the public health; it has reference to the health of
the employes condemned to labor day after day in buildings
where the sun never shines; it is a health law, and therefore it
is valid, and cannot be questioned by the courts.
It is also urged . . . that it is to the interest of the State that
its population should be strong and robust, and therefore any
legislation which may be said to tend to make people healthy
must be valid as health laws, enacted under the police power. .
. . . Scarcely any law but might find shelter under such
assumptions, and conduct . . . as well as contract, would come
under the restrictive sway of the legislature. Not only the
hours of employes, but the hours of employers, could be
regulated, and doctors, lawyers, scientists, all professional
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men, as well as athletes and artisans, could be forbidden to
fatigue their brains and bodies by prolonged hours of
exercise, lest the fighting strength of the State be impaired.
We mention these extreme cases because the contention is
extreme. We do not believe in the soundness of the views
which uphold this law. On the contrary, we think that such a
law as this, although passed in the assumed exercise of the
police power, and as relating to the public health, or the
health of the employes named, is not within that power, and is
invalid. The act is not, within any fair meaning of the term, a
health law, but is an illegal interference with the rights of
individuals, both employers and employes, to make contracts
regarding labor upon such terms as they may think best, or
which they may agree upon with the other parties to such
contracts. Statutes of the nature of that under review, limiting
the hours in which grown and intelligent men may labor to
earn their living, are mere meddlesome interferences with the
rights of the individual, and they are not saved from
condemnation by the claim that they are passed in the
exercise of the police power and upon the subject of the
health of the individual whose rights are interfered with,
unless there be some fair ground, reasonable in and of itself,
to say that there is material danger to the public health or to
the health of the employes, if the hours of labor are not
curtailed. If this be not clearly the case the individuals, whose
rights are thus made the subject of legislative interference, are
under the protection of the Federal Constitution regarding
their liberty of contract as well as of person; and the
legislature of the State has no power to limit their right as
proposed in this statute. . . . .
....
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It is impossible for us to shut our eyes to the fact that many
of the laws of this character, while passed under what is
claimed to be the police power for the purpose of protecting
the public health or welfare, are, in reality, passed from other
motives. We are justified in saying so when, from the
character of the law and the subject upon which it legislates, it
is apparent that the public health or welfare bears but the
most remote relation to the law. The purpose of a statute must
be determined from the natural and legal effect of the
language employed; and whether it is or is not repugnant to
the Constitution of the United States must be determined
from the natural effect of such statutes when put into
operation, and not from their proclaimed purpose. The court
looks beyond the mere letter of the law in such cases.
It is manifest to us that the limitation of the hours of labor
as provided for in this section of the statute under which the
indictment was found, and the plaintiff in error convicted, has
no such direct relation to and no such substantial effect upon
the health of the employe, as to justify us in regarding the
section as really a health law. It seems to us that the real
object and purpose were simply to regulate the hours of labor
between the master and his employes (all being men, sui juris),
in a private business, not dangerous in any degree to morals
or in any real and substantial degree, to the health of the
employes. Under such circumstances the freedom of master
and employe to contract with each other in relation to their
employment, and in defining the same, cannot be prohibited
or interfered with, without violating the Federal Constitution.
The judgment of the Court of Appeals of New York as well
as that of the Supreme Court and of the County Court of
Oneida County must be reversed and the case remanded to
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the County Court for further proceedings not inconsistent
with this opinion.
MR. JUSTICE HARLAN, with whom MR.
JUSTICE WHITE and MR. JUSTICE DAY
concurred, dissenting.
While this court has not attempted to mark the precise
boundaries of what is called the police power of the State, the
existence of the power has been uniformly recognized, both
by the Federal and state courts.
All the cases agree that this power extends at least to the
protection of the lives, the health and the safety of the public
against the injurious exercise by any citizen of his own rights.
....
Granting then that there is a liberty of contract which
cannot be violated even under the sanction of direct legislative
enactment, but assuming, as according to settled law we may
assume, that such liberty of contract is subject to such
regulations as the State may reasonably prescribe for the
common good and the well-being of society, what are the
conditions under which the judiciary may declare such
regulations to be in excess of legislative authority and void?
Upon this point there is no room for dispute; for, the rule is
universal that a legislative enactment, Federal or state, is
never to be disregarded or held invalid unless it be, beyond
question, plainly and palpably in excess of legislative
power. . . . . If there be doubt as to the validity of the statute,
that doubt must therefore be resolved in favor of its validity,
and the courts must keep their hands off, leaving the
legislature to meet the responsibility for unwise legislation. If
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the end which the legislature seeks to accomplish be one to
which its power extends, and if the means employed to that
end, although not the wisest or best, are yet not plainly and
palpably unauthorized by law, then the court cannot interfere.
In other words, when the validity of a statute is questioned,
the burden of proof, so to speak, is upon those who assert it to
be unconstitutional.
Let these principles be applied to the present case. [Justice
Harlan goes on to emphasize the need for deferring to
legislative judgments and to survey the evidence about bakery
workers.]
I do not stop to consider whether any particular view of this
economic question presents the sounder theory. What the
precise facts are it may be difficult to say. It is enough for the
determination of this case, and it is enough for this court to
know, that the question is one about which there is room for
debate and for an honest difference of opinion. There are
many reasons of a weighty, substantial character, based upon
the experience of mankind, in support of the theory that, all
things considered, more than ten hours’ steady work each
day, from week to week, in a bakery or confectionery
establishment, may endanger the health, and shorten the lives
of the workmen, thereby diminishing their physical and
mental capacity to serve the State, and to provide for those
dependent upon them.
If such reasons exist that ought to be the end of this case,
for the State is not amenable to the judiciary, in respect of its
legislative enactments, unless such enactments are plainly,
palpably, beyond all question, inconsistent with the
Constitution of the United States. We are not to presume that
the State of New York has acted in bad faith. . . . .
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When this court had before it the question of the
constitutionality of a statute of Kansas making it a criminal
offense for a contractor for public work to permit or require
his employes to perform labor upon such work in excess of
eight hours each day, it was contended that the statute was in
derogation of the liberty both of employes and employer. It
was further contended that the Kansas statute was
mischievous in its tendencies. This court, while disposing of
the question only as it affected public work, held that the
Kansas statute was not void under the Fourteenth
Amendment. But it took occasion to say what may well be
here repeated: “The responsibility therefor rests upon
legislators, not upon the courts. No evils arising from such
legislation could be more farreaching than those that might
come to our system of government if the judiciary,
abandoning the sphere assigned to it by the fundamental law,
should enter the domain of legislation, and upon grounds
merely of justice or reason or wisdom annul statutes that had
received the sanction of the people’s representatives. We are
reminded by counsel that it is the solemn duty of the courts in
cases before them to guard the constitutional rights of the
citizen against merely arbitrary power. That is unquestionably
true. But it is equally true — indeed, the public interests
imperatively demand — that legislative enactments should be
recognized and enforced by the courts as embodying the will
of the people, unless they are plainly and palpably, beyond all
question, in violation of the fundamental law of the
Constitution.” Atkin v. Kansas.
The judgment in my opinion should be affirmed.
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MR. JUSTICE HOLMES dissenting.
I regret sincerely that I am unable to agree with the
judgment in this case, and that I think it my duty to express
my dissent.
This case is decided upon an economic theory which a large
part of the country does not entertain. If it were a question
whether I agreed with that theory, I should desire to study it
further and long before making up my mind. But I do not
conceive that to be my duty, because I strongly believe that
my agreement or disagreement has nothing to do with the
right of a majority to embody their opinions in law. It is
settled by various decisions of this court that state
constitutions and state laws may regulate life in many ways
which we as legislators might think as injudicious or if you
like as tyrannical as this, and which equally with this interfere
with the liberty to contract. Sunday laws and usury laws are
ancient examples. A more modern one is the prohibition of
lotteries. The liberty of the citizen to do as he likes so long as
he does not interfere with the liberty of others to do the same,
which has been a shibboleth for some well-known writers, is
interfered with by school laws, by the Post Office, by every
state or municipal institution which takes his money for
purposes thought desirable, whether he likes it or not. The
Fourteenth Amendment does not enact Mr. Herbert Spencer’s
Social Statics. The other day we sustained the Massachusetts
vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United
States and state statutes and decisions cutting down the
liberty to contract by way of combination are familiar to this
court. Northern Securities Co. v. United States,193 U.S. 197. Two
years ago we upheld the prohibition of sales of stock on
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margins or for future delivery in the constitution of
California. Otis v. Parker, 187 U.S. 606. The decision
sustaining an eight hour law for miners is still
recent. Holden v. Hardy, 169 U.S. 366. Some of these laws
embody convictions or prejudices which judges are likely to
share. Some may not. But a constitution is not intended to
embody a particular economic theory, whether of paternalism
and the organic relation of the citizen to the State or of laissez
faire. It is made for people of fundamentally differing views,
and the accident of our finding certain opinions natural and
familiar or novel and even shocking ought not to conclude our
judgment upon the question whether statutes embodying
them conflict with the Constitution of the United States.
General propositions do not decide concrete cases. The
decision will depend on a judgment or intuition more subtle
than any articulate major premise. But I think that the
proposition just stated, if it is accepted, will carry us far
toward the end. Every opinion tends to become a law. I think
that the word liberty in the Fourteenth Amendment is
perverted when it is held to prevent the natural outcome of a
dominant opinion, unless it can be said that a rational and fair
man necessarily would admit that the statute proposed would
infringe fundamental principles as they have been understood
by the traditions of our people and our law. It does not need
research to show that no such sweeping condemnation can be
passed upon the statute before us. A reasonable man might
think it a proper measure on the score of health. Men whom I
certainly could not pronounce unreasonable would uphold it
as a first installment of a general regulation of the hours of
work. Whether in the latter aspect it would be open to the
charge of inequality I think it unnecessary to discuss.
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United States v. Carolene
Products Co., 304 U.S. 144
(1938)
MR. JUSTICE STONE delivered the opinion of the
Court.
The question for decision is whether the “Filled Milk Act” of
Congress of March 4, 1923 . . . which prohibits the shipment
in interstate commerce of skimmed milk compounded with
any fat or oil other than milk fat, so as to resemble milk or
cream, transcends the power of Congress to regulate
interstate commerce or infringes the Fifth Amendment.
Appellee was indicted in the district court for southern
Illinois for violation of the Act by the shipment in interstate
commerce of certain packages of “Milnut,” a compound of
condensed skimmed milk and coconut oil made in imitation or
semblance of condensed milk or cream. The indictment states,
in the words of the statute, that Milnut “is an adulterated
article of food, injurious to the public health,” and that it is
not a prepared food product of the type excepted from the
prohibition of the Act. [Justice Stone describes the
procedural history of the case.]
Appellee assails the statute as beyond the power of
Congress over interstate commerce, and hence an invasion of
a field of action said to be reserved to the states by the Tenth
Amendment. Appellee also complains that the statute denies
to it equal protection of the laws and, in violation of the Fifth
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Amendment, deprives it of its property without due process of
law, particularly in that the statute purports to make binding
and conclusive upon appellee the legislative declaration that
appellee’s product “is an adulterated article of food injurious
to the public health and its sale constitutes a fraud on the
public.”
First. The power to regulate commerce is the power “to
prescribe the rule by which commerce is to be governed,” . . .
and extends to the prohibition of shipments in such
commerce. The power “is complete in itself, may be exercised
to its utmost extent and acknowledges no limitations other
than are prescribed by the Constitution.” Hence Congress is
free to exclude from interstate commerce articles whose use in
the states for which they are destined it may reasonably
conceive to be injurious to the public health, morals or
welfare, . . . or which contravene the policy of the state of
their destination. Such regulation is not a forbidden invasion
of state power either because its motive or its consequence is
to restrict the use of articles of commerce within the states of
destination, and is not prohibited unless by the due process
clause of the Fifth Amendment. And it is no objection to the
exertion of the power to regulate interstate commerce that its
exercise is attended by the same incidents which attend the
exercise of the police power of the states. The prohibition of
the shipment of filled milk in interstate commerce is a
permissible regulation of commerce, subject only to the
restrictions of the Fifth Amendment.
Second. The prohibition of shipment of appellee’s product
in interstate commerce does not infringe the Fifth
Amendment. Twenty years ago this Court, in Hebe Co. v.
Shaw, . . . held that a state law which forbids the manufacture
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and sale of a product assumed to be wholesome and nutritive,
made of condensed skimmed milk, compounded with coconut
oil, is not forbidden by the Fourteenth Amendment. The
power of the legislature to secure a minimum of particular
nutritive elements in a widely used article of food and to
protect the public from fraudulent substitutions, was not
doubted; and the Court thought that there was ample scope
for the legislative judgment that prohibition of the offending
article was an appropriate means of preventing injury to the
public.
We see no persuasive reason for departing from that ruling
here, where the Fifth Amendment is concerned; and since
none is suggested, we might rest decision wholly on the
presumption of constitutionality. But affirmative evidence also
sustains the statute. In twenty years evidence has steadily
accumulated of the danger to the public health from the
general consumption of foods which have been stripped of
elements essential to the maintenance of health. The Filled
Milk Act was adopted by Congress after committee hearings,
in the course of which eminent scientists and health experts
testified. An extensive investigation was made of the
commerce in milk compounds in which vegetable oils have
been substituted for natural milk fat, and of the effect upon
the public health of the use of such compounds as a food
substitute for milk. The conclusions drawn from evidence
presented at the hearings were embodied in reports of the
House Committee on Agriculture, . . . and the Senate
Committee on Agriculture and Forestry . . . . Both committees
concluded, as the statute itself declares, that the use of filled
milk as a substitute for pure milk is generally injurious to
health and facilitates fraud on the public.
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There is nothing in the Constitution which compels a
legislature, either national or state, to ignore such evidence,
nor need it disregard the other evidence which amply
supports the conclusions of the Congressional committees that
the danger is greatly enhanced where an inferior product, like
appellee’s, is indistinguishable from a valuable food of almost
universal use, thus making fraudulent distribution easy and
protection of the consumer difficult.
Here the prohibition of the statute is inoperative unless the
product is “in imitation or semblance of milk, cream, or
skimmed milk, whether or not condensed.” Whether in such
circumstances the public would be adequately protected by
the prohibition of false labels and false branding imposed by
the Pure Food and Drugs Act, or whether it was necessary to
go farther and prohibit a substitute food product thought to
be injurious to health if used as a substitute when the two are
not distinguishable, was a matter for the legislative judgment
and not that of courts. It was upon this ground that the
prohibition of the sale of oleomargarine made in imitation of
butter was held not to infringe the Fourteenth Amendment in
Powell v. Pennsylvania . . . .
Appellee raises no valid objection to the present statute by
arguing that its prohibition has not been extended to
oleomargarine or other butter substitutes in which vegetable
fats or oils are substituted for butter fat. The Fifth
Amendment has no equal protection clause, and even that of
the Fourteenth, applicable only to the states, does not compel
their legislatures to prohibit all like evils, or none. A
legislature may hit at an abuse which it has found, even
though it has failed to strike at another.
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Third. We may assume for present purposes that no
pronouncement of a legislature can forestall attack upon the
constitutionality of the prohibition which it enacts by
applying opprobrious epithets to the prohibited act, and that a
statute would deny due process which precluded the disproof
in judicial proceedings of all facts which would show or tend
to show that a statute depriving the suitor of life, liberty or
property had a rational basis.
But such we think is not the purpose or construction of the
statutory characterization of filled milk as injurious to health
and as a fraud upon the public. There is no need to consider it
here as more than a declaration of the legislative findings
deemed to support and justify the action taken as a
constitutional exertion of the legislative power, aiding
informed judicial review, as do the reports of legislative
committees, by revealing the rationale of the legislation. Even
in the absence of such aids the existence of facts supporting
the legislative judgment is to be presumed, for regulatory
legislation affecting ordinary commercial transactions is not to
be pronounced unconstitutional unless in the light of the facts
made known or generally assumed it is of such a character as
to preclude the assumption that it rests upon some rational
basis within the knowledge and experience of the legislators.1
1
There may be narrower scope for operation of the presumption
of constitutionality when legislation appears on its face to be
within a specific prohibition of the Constitution, such as those
of the first ten amendments, which are deemed equally specific
when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which
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The present statutory findings affect appellee no more than
the reports of the Congressional committees; and since in the
absence of the statutory findings they would be presumed,
their incorporation in the statute is no more prejudicial than
surplusage.
Where the existence of a rational basis for legislation whose
constitutionality is attacked depends upon facts beyond the
sphere of judicial notice, such facts may properly be made the
subject of judicial inquiry, . . . and the constitutionality of a
statute predicated upon the existence of a particular state of
facts may be challenged by showing to the court that those
facts have ceased to exist. Similarly we recognize that the
constitutionality of a statute, valid on its face, may be assailed
by proof of facts tending to show that the statute as applied to
a particular article is without support in reason because the
article, although within the prohibited class, is so different
from others of the class as to be without the reason for the
restricts those political processes which can ordinarily be
expected to bring about repeal of undesirable legislation, is to be
subjected to more exacting judicial scrutiny under the general
prohibitions of the Fourteenth Amendment than are most other
types of legislation. [Citations omitted.]
Nor need we enquire whether similar considerations enter into
the review of statutes directed at particular religious, . . . or
national, . . . or racial minorities . . . : whether prejudice against
discrete and insular minorities may be a special condition,
which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and
which may call for a correspondingly more searching judicial
inquiry.
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prohibition, . . . though the effect of such proof depends on
the relevant circumstances of each case, as for example the
administrative difficulty of excluding the article from the
regulated class. But by their very nature such inquiries, where
the legislative judgment is drawn in question, must be
restricted to the issue whether any state of facts either known
or which could reasonably be assumed affords support for it.
Here the demurrer challenges the validity of the statute on its
face and it is evident from all the considerations presented to
Congress, and those of which we may take judicial notice,
that the question is at least debatable whether commerce in
filled milk should be left unregulated, or in some measure
restricted, or wholly prohibited. As that decision was for
Congress, neither the finding of a court arrived at by
weighing the evidence, nor the verdict of a jury can be
substituted for it.
The prohibition of shipment in interstate commerce of
appellee’s product, as described in the indictment, is a
constitutional exercise of the power to regulate interstate
commerce. As the statute is not unconstitutional on its face
the demurrer should have been overruled and the judgment
will be
Reversed.
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Obergefell v. Hodges, 135 S.Ct.
2584 (2015)
Justice KENNEDY delivered the opinion of the
Court.
The Constitution promises liberty to all within its reach, a
liberty that includes certain specific rights that allow persons,
within a lawful realm, to define and express their identity. The
petitioners in these cases seek to find that liberty by marrying
someone of the same sex and having their marriages deemed
lawful on the same terms and conditions as marriages
between persons of the opposite sex.
I
These cases come from Michigan, Kentucky, Ohio, and
Tennessee, States that define marriage as a union between one
man and one woman. The petitioners are 14 same-sex couples
and two men whose same-sex partners are deceased. The
respondents are state officials responsible for enforcing the
laws in question. The petitioners claim the respondents violate
the Fourteenth Amendment by denying them the right to
marry or to have their marriages, lawfully performed in
another State, given full recognition.
....
From their beginning to their most recent page, the annals
of human history reveal the transcendent importance of
marriage. The lifelong union of a man and a woman always
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has promised nobility and dignity to all persons, without
regard to their station in life. Marriage is sacred to those who
live by their religions and offers unique fulfillment to those
who find meaning in the secular realm. Its dynamic allows
two people to find a life that could not be found alone, for a
marriage becomes greater than just the two persons. Rising
from the most basic human needs, marriage is essential to our
most profound hopes and aspirations.
The centrality of marriage to the human condition makes it
unsurprising that the institution has existed for millennia and
across civilizations. Since the dawn of history, marriage has
transformed strangers into relatives, binding families and
societies together. Confucius taught that marriage lies at the
foundation of government. This wisdom was echoed centuries
later and half a world away by Cicero, who wrote, “The first
bond of society is marriage; next, children; and then the
family.” There are untold references to the beauty of marriage
in religious and philosophical texts spanning time, cultures,
and faiths, as well as in art and literature in all their forms. It
is fair and necessary to say these references were based on the
understanding that marriage is a union between two persons
of the opposite sex.
That history is the beginning of these cases. The
respondents say it should be the end as well. To them, it
would demean a timeless institution if the concept and lawful
status of marriage were extended to two persons of the same
sex. Marriage, in their view, is by its nature a genderdifferentiated union of man and woman. This view long has
been held—and continues to be held—in good faith by
reasonable and sincere people here and throughout the world.
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The petitioners acknowledge this history but contend that
these cases cannot end there. Were their intent to demean the
revered idea and reality of marriage, the petitioners’ claims
would be of a different order. But that is neither their purpose
nor their submission. To the contrary, it is the enduring
importance of marriage that underlies the petitioners’
contentions. This, they say, is their whole point. Far from
seeking to devalue marriage, the petitioners seek it for
themselves because of their respect—and need—for its
privileges and responsibilities. And their immutable nature
dictates that same-sex marriage is their only real path to this
profound commitment.
Recounting the circumstances of three of these cases
illustrates the urgency of the petitioners’ cause from their
perspective. Petitioner James Obergefell, a plaintiff in the
Ohio case, met John Arthur over two decades ago. They fell
in love and started a life together, establishing a lasting,
committed relation. In 2011, however, Arthur was diagnosed
with amyotrophic lateral sclerosis, or ALS. This debilitating
disease is progressive, with no known cure. Two years ago,
Obergefell and Arthur decided to commit to one another,
resolving to marry before Arthur died. To fulfill their mutual
promise, they traveled from Ohio to Maryland, where samesex marriage was legal. It was difficult for Arthur to move,
and so the couple were wed inside a medical transport plane
as it remained on the tarmac in Baltimore. Three months later,
Arthur died. Ohio law does not permit Obergefell to be listed
as the surviving spouse on Arthur’s death certificate. By
statute, they must remain strangers even in death, a stateimposed separation Obergefell deems “hurtful for the rest of
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time.” He brought suit to be shown as the surviving spouse on
Arthur’s death certificate.
....
The cases now before the Court involve other petitioners as
well, each with their own experiences. Their stories reveal
that they seek not to denigrate marriage but rather to live
their lives, or honor their spouses’ memory, joined by its
bond.
B
The ancient origins of marriage confirm its centrality, but it
has not stood in isolation from developments in law and
society. The history of marriage is one of both continuity and
change. That institution—even as confined to opposite-sex
relations—has evolved over time.
For example, marriage was once viewed as an arrangement
by the couple’s parents based on political, religious, and
financial concerns; but by the time of the Nation’s founding it
was understood to be a voluntary contract between a man and
a woman. As the role and status of women changed, the
institution further evolved. Under the centuries-old doctrine
of coverture, a married man and woman were treated by the
State as a single, male-dominated legal entity. As women
gained legal, political, and property rights, and as society
began to understand that women have their own equal
dignity, the law of coverture was abandoned. These and other
developments in the institution of marriage over the past
centuries were not mere superficial changes. Rather, they
worked deep transformations in its structure, affecting
aspects of marriage long viewed by many as essential.
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These new insights have strengthened, not weakened, the
institution of marriage. Indeed, changed understandings of
marriage are characteristic of a Nation where new dimensions
of freedom become apparent to new generations, often
through perspectives that begin in pleas or protests and then
are considered in the political sphere and the judicial process.
This dynamic can be seen in the Nation’s experiences with
the rights of gays and lesbians. Until the mid–20th century,
same-sex intimacy long had been condemned as immoral by
the state itself in most Western nations, a belief often
embodied in the criminal law. For this reason, among others,
many persons did not deem homosexuals to have dignity in
their own distinct identity. A truthful declaration by same-sex
couples of what was in their hearts had to remain unspoken.
Even when a greater awareness of the humanity and integrity
of homosexual persons came in the period after World War
II, the argument that gays and lesbians had a just claim to
dignity was in conflict with both law and widespread social
conventions. Same-sex intimacy remained a crime in many
States. Gays and lesbians were prohibited from most
government employment, barred from military service,
excluded under immigration laws, targeted by police, and
burdened in their rights to associate. See Brief for
Organization of American Historians as Amicus Curiae 5–28.
For much of the 20th century, moreover, homosexuality
was treated as an illness. When the American Psychiatric
Association published the first Diagnostic and Statistical
Manual of Mental Disorders in 1952, homosexuality was
classified as a mental disorder, a position adhered to until
1973. Only in more recent years have psychiatrists and others
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recognized that sexual orientation is both a normal expression
of human sexuality and immutable.
In the late 20th century, following substantial cultural and
political developments, same-sex couples began to lead more
open and public lives and to establish families. This
development was followed by a quite extensive discussion of
the issue in both governmental and private sectors and by a
shift in public attitudes toward greater tolerance. As a result,
questions about the rights of gays and lesbians soon reached
the courts, where the issue could be discussed in the formal
discourse of the law.
This Court first gave detailed consideration to the legal
status of homosexuals in Bowers v. Hardwick . . . . There it
upheld the constitutionality of a Georgia law deemed to
criminalize certain homosexual acts. Ten years later, in Romer
v. Evans, . . . the Court invalidated an amendment to
Colorado’s Constitution that sought to foreclose any branch
or political subdivision of the State from protecting persons
against discrimination based on sexual orientation. Then, in
2003, the Court overruled Bowers, holding that laws making
same-sex intimacy a crime “demea [n] the lives of homosexual
persons.”
....
III
Under the Due Process Clause of the Fourteenth
Amendment, no State shall “deprive any person of life, liberty,
or property, without due process of law.” The fundamental
liberties protected by this Clause include most of the rights
enumerated in the Bill of Rights. In addition these liberties
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extend to certain personal choices central to individual dignity
and autonomy, including intimate choices that define personal
identity and beliefs.
The identification and protection of fundamental rights is
an enduring part of the judicial duty to interpret the
Constitution. That responsibility, however, “has not been
reduced to any formula.” Rather, it requires courts to exercise
reasoned judgment in identifying interests of the person so
fundamental that the State must accord them its respect. See
ibid. That process is guided by many of the same
considerations relevant to analysis of other constitutional
provisions that set forth broad principles rather than specific
requirements. History and tradition guide and discipline this
inquiry but do not set its outer boundaries. That method
respects our history and learns from it without allowing the
past alone to rule the present.
The nature of injustice is that we may not always see it in
our own times. The generations that wrote and ratified the
Bill of Rights and the Fourteenth Amendment did not
presume to know the extent of freedom in all of its
dimensions, and so they entrusted to future generations a
charter protecting the right of all persons to enjoy liberty as
we learn its meaning. When new insight reveals discord
between the Constitution’s central protections and a received
legal stricture, a claim to liberty must be addressed.
Applying these established tenets, the Court has long held
the right to marry is protected by the Constitution. In Loving v.
Virginia, . . . which invalidated bans on interracial unions, a
unanimous Court held marriage is “one of the vital personal
rights essential to the orderly pursuit of happiness by free
men.” The Court reaffirmed that holding in Zablocki v.
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Redhail, . . . which held the right to marry was burdened by a
law prohibiting fathers who were behind on child support
from marrying. The Court again applied this principle in
Turner v. Safley, . . . which held the right to marry was
abridged by regulations limiting the privilege of prison
inmates to marry. Over time and in other contexts, the Court
has reiterated that the right to marry is fundamental under the
Due Process Clause.
It cannot be denied that this Court’s cases describing the
right to marry presumed a relationship involving opposite-sex
partners. The Court, like many institutions, has made
assumptions defined by the world and time of which it is a
part. This was evident in Baker v. Nelson, . . . a one-line
summary decision issued in 1972, holding the exclusion of
same-sex couples from marriage did not present a substantial
federal question.
Still, there are other, more instructive precedents. This
Court’s cases have expressed constitutional principles of
broader reach. In defining the right to marry these cases have
identified essential attributes of that right based in history,
tradition, and other constitutional liberties inherent in this
intimate bond. And in assessing whether the force and
rationale of its cases apply to same-sex couples, the Court
must respect the basic reasons why the right to marry has
been long protected.
This analysis compels the conclusion that same-sex couples
may exercise the right to marry. The four principles and
traditions to be discussed demonstrate that the reasons
marriage is fundamental under the Constitution apply with
equal force to same-sex couples.
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A first premise of the Court’s relevant precedents is that the
right to personal choice regarding marriage is inherent in the
concept of individual autonomy. This abiding connection
between marriage and liberty is why Loving invalidated
interracial marriage bans under the Due Process Clause. Like
choices concerning contraception, family relationships,
procreation, and childrearing, all of which are protected by
the Constitution, decisions concerning marriage are among
the most intimate that an individual can make. Indeed, the
Court has noted it would be contradictory “to recognize a
right of privacy with respect to other matters of family life
and not with respect to the decision to enter the relationship
that is the foundation of the family in our society.”
Choices about marriage shape an individual’s destiny. As
the Supreme Judicial Court of Massachusetts has explained,
because “it fulfils yearnings for security, safe haven, and
connection that express our common humanity, civil marriage
is an esteemed institution, and the decision whether and
whom to marry is among life’s momentous acts of selfdefinition.”
The nature of marriage is that, through its enduring bond,
two persons together can find other freedoms, such as
expression, intimacy, and spirituality. This is true for all
persons, whatever their sexual orientation. There is dignity in
the bond between two men or two women who seek to marry
and in their autonomy to make such profound choices.
A second principle in this Court’s jurisprudence is that the
right to marry is fundamental because it supports a twoperson union unlike any other in its importance to the
committed individuals. This point was central to Griswold v.
Connecticut, which held the Constitution protects the right of
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married couples to use contraception. Suggesting that
marriage is a right “older than the Bill of Rights,” Griswold
described marriage this way:
Marriage is a coming together for better or for worse,
hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life,
not causes; a harmony in living, not political faiths; a
bilateral loyalty, not commercial or social projects. Yet it
is an association for as noble a purpose as any involved
in our prior decisions.
And in Turner, the Court again acknowledged the intimate
association protected by this right, holding prisoners could
not be denied the right to marry because their committed
relationships satisfied the basic reasons why marriage is a
fundamental right. The right to marry thus dignifies couples
who “wish to define themselves by their commitment to each
other.” Marriage responds to the universal fear that a lonely
person might call out only to find no one there. It offers the
hope of companionship and understanding and assurance that
while both still live there will be someone to care for the other.
As this Court held in Lawrence, same-sex couples have the
same right as opposite-sex couples to enjoy intimate
association. Lawrence invalidated laws that made same-sex
intimacy a criminal act. And it acknowledged that “[w]hen
sexuality finds overt expression in intimate conduct with
another person, the conduct can be but one element in a
personal bond that is more enduring.” But while Lawrence
confirmed a dimension of freedom that allows individuals to
engage in intimate association without criminal liability, it
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does not follow that freedom stops there. Outlaw to outcast
may be a step forward, but it does not achieve the full promise
of liberty.
A third basis for protecting the right to marry is that it
safeguards children and families and thus draws meaning
from related rights of childrearing, procreation, and
education. The Court has recognized these connections by
describing the varied rights as a unified whole: “[T]he right to
‘marry, establish a home and bring up children’ is a central
part of the liberty protected by the Due Process Clause.”
Under the laws of the several States, some of marriage’s
protections for children and families are material. But
marriage also confers more profound benefits. By giving
recognition and legal structure to their parents’ relationship,
marriage allows children “to understand the integrity and
closeness of their own family and its concord with other
families in their community and in their daily lives.” Marriage
also affords the permanency and stability important to
children’s best interests.
As all parties agree, many same-sex couples provide loving
and nurturing homes to their children, whether biological or
adopted. And hundreds of thousands of children are presently
being raised by such couples. Most States have allowed gays
and lesbians to adopt, either as individuals or as couples, and
many adopted and foster children have same-sex parents . . . .
This provides powerful confirmation from the law itself that
gays and lesbians can create loving, supportive families.
Excluding same-sex couples from marriage thus conflicts
with a central premise of the right to marry. Without the
recognition, stability, and predictability marriage offers, their
children suffer the stigma of knowing their families are
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somehow lesser. They also suffer the significant material costs
of being raised by unmarried parents, relegated through no
fault of their own to a more difficult and uncertain family life.
The marriage laws at issue here thus harm and humiliate the
children of same-sex couples.
That is not to say the right to marry is less meaningful for
those who do not or cannot have children. An ability, desire,
or promise to procreate is not and has not been a prerequisite
for a valid marriage in any State. In light of precedent
protecting the right of a married couple not to procreate, it
cannot be said the Court or the States have conditioned the
right to marry on the capacity or commitment to procreate.
The constitutional marriage right has many aspects, of which
childbearing is only one.
Fourth and finally, this Court’s cases and the Nation’s
traditions make clear that marriage is a keystone of our social
order. Alexis de Tocqueville recognized this truth on his
travels through the United States almost two centuries ago:
There is certainly no country in the world where the tie of
marriage is so much respected as in America ... [W]hen
the American retires from the turmoil of public life to the
bosom of his family, he finds in it the image of order and
of peace.... [H]e afterwards carries [that image] with
him into public affairs.
In Maynard v. Hill, . . . the Court echoed de Tocqueville,
explaining that marriage is “the foundation of the family and
of society, without which there would be neither civilization
nor progress.” Marriage, the Maynard Court said, has long
been “ ‘a great public institution, giving character to our
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whole civil polity.’ ” This idea has been reiterated even as the
institution has evolved in substantial ways over time,
superseding rules related to parental consent, gender, and
race once thought by many to be essential. Marriage remains
a building block of our national community.
For that reason, just as a couple vows to support each other,
so does society pledge to support the couple, offering
symbolic recognition and material benefits to protect and
nourish the union. Indeed, while the States are in general free
to vary the benefits they confer on all married couples, they
have throughout our history made marriage the basis for an
expanding list of governmental rights, benefits, and
responsibilities. These aspects of marital status include:
taxation; inheritance and property rights; rules of intestate
succession; spousal privilege in the law of evidence; hospital
access; medical decisionmaking authority; adoption rights; the
rights and benefits of survivors; birth and death certificates;
professional ethics rules; campaign finance restrictions;
workers’ compensation benefits; health insurance; and child
custody, support, and visitation rules. Valid marriage under
state law is also a significant status for over a thousand
provisions of federal law. The States have contributed to the
fundamental character of the marriage right by placing that
institution at the center of so many facets of the legal and
social order.
There is no difference between same- and opposite-sex
couples with respect to this principle. Yet by virtue of their
exclusion from that institution, same-sex couples are denied
the constellation of benefits that the States have linked to
marriage. This harm results in more than just material
burdens. Same-sex couples are consigned to an instability
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many opposite-sex couples would deem intolerable in their
own lives. As the State itself makes marriage all the more
precious by the significance it attaches to it, exclusion from
that status has the effect of teaching that gays and lesbians are
unequal in important respects. It demeans gays and lesbians
for the State to lock them out of a central institution of the
Nation’s society. Same-sex couples, too, may aspire to the
transcendent purposes of marriage and seek fulfillment in its
highest meaning.
The limitation of marriage to opposite-sex couples may long
have seemed natural and just, but its inconsistency with the
central meaning of the fundamental right to marry is now
manifest. With that knowledge must come the recognition
that laws excluding same-sex couples from the marriage right
impose stigma and injury of the kind prohibited by our basic
charter.
Objecting that this does not reflect an appropriate framing
of the issue, the respondents refer to Washington v. Glucksberg, .
. . which called for a “careful description” of fundamental
rights. They assert the petitioners do not seek to exercise the
right to marry but rather a new and nonexistent “right to
same-sex marriage.” Glucksberg did insist that liberty under
the Due Process Clause must be defined in a most
circumscribed manner, with central reference to specific
historical practices. Yet while that approach may have been
appropriate for the asserted right there involved (physicianassisted suicide), it is inconsistent with the approach this
Court has used in discussing other fundamental rights,
including marriage and intimacy. Loving did not ask about a
“right to interracial marriage”; Turner did not ask about a
“right of inmates to marry”; and Zablocki did not ask about a
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“right of fathers with unpaid child support duties to marry.”
Rather, each case inquired about the right to marry in its
comprehensive sense, asking if there was a sufficient
justification for excluding the relevant class from the right.
That principle applies here. If rights were defined by who
exercised them in the past, then received practices could serve
as their own continued justification and new groups could not
invoke rights once denied. This Court has rejected that
approach, both with respect to the right to marry and the
rights of gays and lesbians.
The right to marry is fundamental as a matter of history and
tradition, but rights come not from ancient sources alone.
They rise, too, from a better informed understanding of how
constitutional imperatives define a liberty that remains urgent
in our own era. Many who deem same-sex marriage to be
wrong reach that conclusion based on decent and honorable
religious or philosophical premises, and neither they nor their
beliefs are disparaged here. But when that sincere, personal
opposition becomes enacted law and public policy, the
necessary consequence is to put the imprimatur of the State
itself on an exclusion that soon demeans or stigmatizes those
whose own liberty is then denied. Under the Constitution,
same-sex couples seek in marriage the same legal treatment as
opposite-sex couples, and it would disparage their choices and
diminish their personhood to deny them this right.
The right of same-sex couples to marry that is part of the
liberty promised by the Fourteenth Amendment is derived,
too, from that Amendment’s guarantee of the equal protection
of the laws. The Due Process Clause and the Equal
Protection Clause are connected in a profound way, though
they set forth independent principles. Rights implicit in
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liberty and rights secured by equal protection may rest on
different precepts and are not always co-extensive, yet in
some instances each may be instructive as to the meaning and
reach of the other. In any particular case one Clause may be
thought to capture the essence of the right in a more accurate
and comprehensive way, even as the two Clauses may
converge in the identification and definition of the right. This
interrelation of the two principles furthers our understanding
of what freedom is and must become.
The Court’s cases touching upon the right to marry reflect
this dynamic. In Loving the Court invalidated a prohibition on
interracial marriage under both the Equal Protection Clause
and the Due Process Clause. The Court first declared the
prohibition invalid because of its unequal treatment of
interracial couples. It stated: “There can be no doubt that
restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal
Protection Clause.” With this link to equal protection the
Court proceeded to hold the prohibition offended central
precepts of liberty: “To deny this fundamental freedom on so
unsupportable a basis as the racial classifications embodied in
these statutes, classifications so directly subversive of the
principle of equality at the heart of the Fourteenth
Amendment, is surely to deprive all the State’s citizens of
liberty without due process of law.” The reasons why
marriage is a fundamental right became more clear and
compelling from a full awareness and understanding of the
hurt that resulted from laws barring interracial unions.
The synergy between the two protections is illustrated
further in Zablocki. There the Court invoked the Equal
Protection Clause as its basis for invalidating the challenged
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law, which, as already noted, barred fathers who were behind
on child-support payments from marrying without judicial
approval. The equal protection analysis depended in central
part on the Court’s holding that the law burdened a right “of
fundamental importance.” It was the essential nature of the
marriage right, discussed at length in Zablocki, . . . that made
apparent the law’s incompatibility with requirements of
equality. Each concept—liberty and equal protection—leads
to a stronger understanding of the other.
....
In Lawrence the Court acknowledged the interlocking nature
of these constitutional safeguards in the context of the legal
treatment of gays and lesbians. Although Lawrence elaborated
its holding under the Due Process Clause, it acknowledged,
and sought to remedy, the continuing inequality that resulted
from laws making intimacy in the lives of gays and lesbians a
crime against the State. Lawrence therefore drew upon
principles of liberty and equality to define and protect the
rights of gays and lesbians, holding the State “cannot demean
their existence or control their destiny by making their private
sexual conduct a crime.”
This dynamic also applies to same-sex marriage. It is now
clear that the challenged laws burden the liberty of same-sex
couples, and it must be further acknowledged that they
abridge central precepts of equality. Here the marriage laws
enforced by the respondents are in essence unequal: same-sex
couples are denied all the benefits afforded to opposite-sex
couples and are barred from exercising a fundamental right.
Especially against a long history of disapproval of their
relationships, this denial to same-sex couples of the right to
marry works a grave and continuing harm. The imposition of
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this disability on gays and lesbians serves to disrespect and
subordinate them. And the Equal Protection Clause, like the
Due Process Clause, prohibits this unjustified infringement of
the fundamental right to marry.
These considerations lead to the conclusion that the right to
marry is a fundamental right inherent in the liberty of the
person, and under the Due Process and Equal Protection
Clauses of the Fourteenth Amendment couples of the samesex may not be deprived of that right and that liberty. The
Court now holds that same-sex couples may exercise the
fundamental right to marry. No longer may this liberty be
denied to them. Baker v. Nelson must be and now is overruled,
and the State laws challenged by Petitioners in these cases are
now held invalid to the extent they exclude same-sex couples
from civil marriage on the same terms and conditions as
opposite-sex couples.
....
***
No union is more profound than marriage, for it embodies
the highest ideals of love, fidelity, devotion, sacrifice, and
family. In forming a marital union, two people become
something greater than once they were. As some of the
petitioners in these cases demonstrate, marriage embodies a
love that may endure even past death. It would
misunderstand these men and women to say they disrespect
the idea of marriage. Their plea is that they do respect it,
respect it so deeply that they seek to find its fulfillment for
themselves. Their hope is not to be condemned to live in
loneliness, excluded from one of civilization’s oldest
institutions. They ask for equal dignity in the eyes of the law.
The Constitution grants them that right.
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The judgment of the Court of Appeals for the Sixth Circuit
is reversed.
Chief Justice ROBERTS, dissenting.**
Petitioners make strong arguments rooted in social policy and
considerations of fairness. They contend that same-sex
couples should be allowed to affirm their love and
commitment through marriage, just like opposite-sex couples.
That position has undeniable appeal; over the past six years,
voters and legislators in eleven States and the District of
Columbia have revised their laws to allow marriage between
two people of the same sex.
But this Court is not a legislature. Whether same-sex
marriage is a good idea should be of no concern to us. Under
the Constitution, judges have power to say what the law is,
not what it should be. The people who ratified the
Constitution authorized courts to exercise “neither force nor
will but merely judgment.” The Federalist No. 78, p. 465 (C.
Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
Today, however, the Court takes the extraordinary step of
ordering every State to license and recognize same-sex
marriage. Many people will rejoice at this decision, and I
begrudge none their celebration. But for those who believe in
a government of laws, not of men, the majority’s approach is
deeply disheartening. Supporters of same-sex marriage have
achieved considerable success persuading their fellow citizens
—through the democratic process—to adopt their view. That
ends today. Five lawyers have closed the debate and enacted
their own vision of marriage as a matter of constitutional law.
Stealing this issue from the people will for many cast a cloud
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over same-sex marriage, making a dramatic social change that
much more difficult to accept.
The majority’s decision is an act of will, not legal judgment.
The right it announces has no basis in the Constitution or this
Court’s precedent. The majority expressly disclaims judicial
“caution” and omits even a pretense of humility, openly
relying on its desire to remake society according to its own
“new insight” into the “nature of injustice.” Ante, at 11, 23. As
a result, the Court invalidates the marriage laws of more than
half the States and orders the transformation of a social
institution that has formed the basis of human society for
millennia, for the Kalahari Bushmen and the Han Chinese,
the Carthaginians and the Aztecs. Just who do we think we
are?
It can be tempting for judges to confuse our own
preferences with the requirements of the law. But as this
Court has been reminded throughout our history, the
Constitution “is made for people of fundamentally differing
views.” Lochner v. New York, 198 U. S. 45, 76 (1905) (Holmes,
J., dissenting). Accordingly, “courts are not concerned with
the wisdom or policy of legislation.” Id., at 69 (Harlan, J.,
dissenting). The majority today neglects that restrained
conception of the judicial role. It seizes for itself a question
the Constitution leaves to the people, at a time when the
people are engaged in a vibrant debate on that question. And
it answers that question based not on neutral principles of
constitutional law, but on its own “understanding of what
freedom is and must become.” Ante, at 19. I have no choice
but to dissent.
....
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The need for restraint in administering the strong medicine
of substantive due process is a lesson this Court has learned
the hard way. The Court first applied substantive due process
to strike down a statute in Dred Scott v. Sandford, 19 How. 393
(1857). There the Court invalidated the Missouri
Compromise on the ground that legislation restricting the
institution of slavery violated the implied rights of
slaveholders. The Court relied on its own conception of
liberty and property in doing so. It asserted that “an act of
Congress which deprives a citizen of the United States of his
liberty or property, merely because he came himself or
brought his property into a particular Territory of the United
States . . . could hardly be dignified with the name of due
process of law.” Id., at 450. In a dissent that has outlasted the
majority opinion, Justice Curtis explained that when the
“fixed rules which govern the interpretation of laws [are]
abandoned, and the theoretical opinions of individuals are
allowed to control” the Constitution’s meaning, “we have no
longer a Constitution; we are under the government of
individual men, who for the time being have power to declare
what the Constitution is, according to their own views of
what it ought to mean.” Id., at 621.
Dred Scott’s holding was overruled on the battlefields of the
Civil War and by constitutional amendment after
Appomattox, but its approach to the Due Process Clause
reappeared. In a series of early 20th-century cases, most
prominently Lochner v. New York, this Court invalidated state
statutes that presented “meddlesome interferences with the
rights of the individual,” and “undue interference with liberty
of person and freedom of contract.” 198 U. S., at 60, 61. In
Lochner itself, the Court struck down a New York law setting
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maximum hours for bakery employees, because there was “in
our judgment, no reasonable foundation for holding this to be
necessary or appropriate as a health law.” Id., at 58.
The dissenting Justices in Lochner explained that the New
York law could be viewed as a reasonable response to
legislative concern about the health of bakery employees, an
issue on which there was at least “room for debate and for an
honest difference of opinion.” Id., at 72 (opinion of Harlan,
J.). The majority’s contrary conclusion required adopting as
constitutional law “an economic theory which a large part of
the country does not entertain.” Id., at 75 (opinion of Holmes,
J.). As Justice Holmes memorably put it, “The Fourteenth
Amendment does not enact Mr. Herbert Spencer’s Social
Statics,” a leading work on the philosophy of Social
Darwinism. The Constitution “is not intended to embody a
particular economic theory . . . . It is made for people of
fundamentally differing views, and the accident of our finding
certain opinions natural and familiar or novel and even
shocking ought not to conclude our judgment upon the
question whether statutes embodying them conflict with the
Constitution.” Id., at 75–76.
In the decades after Lochner, the Court struck down nearly
200 laws as violations of individual liberty, often over strong
dissents contending that “[t]he criterion of constitutionality is
not whether we believe the law to be for the public good.”
Adkins v. Children’s Hospital of D. C., 261 U. S. 525, 570 (1923)
(opinion of Holmes, J.). By empowering judges to elevate
their own policy judgments to the status of constitutionally
protected “liberty,” the Lochner line of cases left “no alternative
to regarding the court as a . . . legislative chamber.” L. Hand,
The Bill of Rights 42 (1958).
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Eventually, the Court recognized its error and vowed not to
repeat it. “The doctrine that . . . due process authorizes courts
to hold laws unconstitutional when they believe the legislature
has acted unwisely,” we later explained, “has long since been
discarded. We have returned to the original constitutional
proposition that courts do not substitute their social and
economic beliefs for the judgment of legislative bodies, who
are elected to pass laws.” Ferguson v. Skrupa, 372 U. S. 726,
730 (1963) ; see Day-Brite Lighting, Inc. v. Missouri, 342 U. S.
421, 423 (1952) (“we do not sit as a super-legislature to weigh
the wisdom of legislation”). Thus, it has become an accepted
rule that the Court will not hold laws unconstitutional simply
because we find them “unwise, improvident, or out of
harmony with a particular school of thought.” Williamson v.
Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955).
Rejecting Lochner does not require disavowing the doctrine
of implied fundamental rights, and this Court has not done so.
But to avoid repeating Lochner’s error of converting personal
preferences into constitutional mandates, our modern
substantive due process cases have stressed the need for
judicial self-restraint. Our precedents have required that
implied fundamental rights be “objectively, deeply rooted in
this Nation’s history and tradition,” and “implicit in the
concept of ordered liberty, such that neither liberty nor justice
would exist if they were sacrificed.” Glucksberg, 521 U. S., at
720–721 (internal quotation marks omitted).
....
. . . . Expanding a right suddenly and dramatically is likely
to require tearing it up from its roots. Even a sincere
profession of “discipline” in identifying fundamental rights,
ante, at 10–11, does not provide a meaningful constraint on a
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judge, for “what he is really likely to be ‘discovering,’ whether
or not he is fully aware of it, are his own values,” J. Ely,
Democracy and Distrust 44 (1980). The only way to ensure
restraint in this delicate enterprise is “continual insistence
upon respect for the teachings of history, solid recognition of
the basic values that underlie our society, and wise
appreciation of the great roles [of] the doctrines of federalism
and separation of powers.” Griswold v. Connecticut, 381 U. S.
479, 501 (1965) (Harlan, J., concurring in judgment).
Justice SCALIA, with whom Justice THOMAS
joins, dissenting.
[...]
The substance of today’s decree is not of immense personal
importance to me. The law can recognize as marriage
whatever sexual attachments and living arrangements it
wishes, and can accord them favorable civil consequences,
from tax treatment to rights of inheritance. Those civil
consequences — and the public approval that conferring the
name of marriage evidences — can perhaps have adverse
social effects, but no more adverse than the effects of many
other controversial laws. So it is not of special importance to
me what the law says about marriage. It is of overwhelming
importance, however, who it is that rules me. Today’s decree
says that my Ruler, and the Ruler of 320 million Americans
coast-to-coast, is a majority of the nine lawyers on the
Supreme Court. The opinion in these cases is the furthest
extension in fact — and the furthest extension one can even
imagine — of the Court’s claimed power to create “liberties”
that the Constitution and its Amendments neglect to mention.
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This practice of constitutional revision by an unelected
committee of nine, always accompanied (as it is today) by
extravagant praise of liberty, robs the People of the most
important liberty they asserted in the Declaration of
Independence and won in the Revolution of 1776: the
freedom to govern themselves.
I
Until the courts put a stop to it, public debate over same-sex
marriage displayed American democracy at its best.
Individuals on both sides of the issue passionately, but
respectfully, attempted to persuade their fellow citizens to
accept their views. Americans considered the arguments and
put the question to a vote. The electorates of 11 States, either
directly or through their representatives, chose to expand the
traditional definition of marriage. Many more decided not to.
Win or lose, advocates for both sides continued pressing their
cases, secure in the knowledge that an electoral loss can be
negated by a later electoral win. That is exactly how our
system of government is supposed to work.
The Constitution places some constraints on self-rule—
constraints adopted by the People themselves when they
ratified the Constitution and its Amendments. Forbidden are
laws “impairing the Obligation of Contracts,” denying “Full
Faith and Credit” to the “public Acts” of other States,
prohibiting the free exercise of religion, abridging the
freedom of speech, infringing the right to keep and bear arms,
authorizing unreasonable searches and seizures, and so forth.
Aside from these limitations, those powers “reserved to the
States respectively, or to the people” can be exercised as the
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States or the People desire. These cases ask us to decide
whether the Fourteenth Amendment contains a limitation that
requires the States to license and recognize marriages
between two people of the same sex. Does it remove that issue
from the political process?
Of course not. It would be surprising to find a prescription
regarding marriage in the Federal Constitution since, as the
author of today’s opinion reminded us only two years ago (in
an opinion joined by the same Justices who join him today):
“[R]egulation of domestic relations is an area that has
long been regarded as a virtually exclusive province of the
States.”
“[T]he Federal Government, through our history, has
deferred to state-law policy decisions with respect to
domestic relations.”
But we need not speculate. When the Fourteenth Amendment
was ratified in 1868, every State limited marriage to one man
and one woman, and no one doubted the constitutionality of
doing so. That resolves these cases. When it comes to
determining the meaning of a vague constitutional provision
— such as “due process of law” or “equal protection of the
laws” — it is unquestionable that the People who ratified that
provision did not understand it to prohibit a practice that
remained both universal and uncontroversial in the years after
ratification. We have no basis for striking down a practice
that is not expressly prohibited by the Fourteenth
Amendment’s text, and that bears the endorsement of a long
tradition of open, widespread, and unchallenged use dating
back to the Amendment’s ratification. Since there is no doubt
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whatever that the People never decided to prohibit the
limitation of marriage to opposite-sex couples, the public
debate over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking even a
thin veneer of law. Buried beneath the mummeries and
straining-to-be-memorable passages of the opinion is a candid
and startling assertion: No matter what it was the People
ratified, the Fourteenth Amendment protects those rights that
the Judiciary, in its “reasoned judgment,” thinks the
Fourteenth Amendment ought to protect. That is so because
“[t]he generations that wrote and ratified the Bill of Rights
and the Fourteenth Amendment did not presume to know the
extent of freedom in all of its dimensions....” One would think
that sentence would continue: “... and therefore they provided
for a means by which the People could amend the
Constitution,” or perhaps “... and therefore they left the
creation of additional liberties, such as the freedom to marry
someone of the same sex, to the People, through the neverending process of legislation.” But no. What logically follows,
in the majority’s judge-empowering estimation, is: “and so
they entrusted to future generations a charter protecting the
right of all persons to enjoy liberty as we learn its meaning.”
The “we,” needless to say, is the nine of us. “History and
tradition guide and discipline [our] inquiry but do not set its
outer boundaries.” Thus, rather than focusing on the People’s
understanding of “liberty” — at the time of ratification or
even today — the majority focuses on four “principles and
traditions” that, in the majority’s view, prohibit States from
defining marriage as an institution consisting of one man and
one woman.
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This is a naked judicial claim to legislative — indeed, superlegislative — power; a claim fundamentally at odds with our
system of government. Except as limited by a constitutional
prohibition agreed to by the People, the States are free to
adopt whatever laws they like, even those that offend the
esteemed Justices’ “reasoned judgment.” A system of
government that makes the People subordinate to a
committee of nine unelected lawyers does not deserve to be
called a democracy.
Judges are selected precisely for their skill as lawyers;
whether they reflect the policy views of a particular
constituency is not (or should not be) relevant. Not
surprisingly then, the Federal Judiciary is hardly a crosssection of America. Take, for example, this Court, which
consists of only nine men and women, all of them successful
lawyers who studied at Harvard or Yale Law School. Four of
the nine are natives of New York City. Eight of them grew up
in east- and west-coast States. Only one hails from the vast
expanse in-between. Not a single Southwesterner or even, to
tell the truth, a genuine Westerner (California does not
count). Not a single evangelical Christian (a group that
comprises about one quarter of Americans), or even a
Protestant of any denomination. The strikingly
unrepresentative character of the body voting on today’s
social upheaval would be irrelevant if they were functioning
as judges, answering the legal question whether the American
people had ever ratified a constitutional provision that was
understood to proscribe the traditional definition of marriage.
But of course the Justices in today’s majority are not voting
on that basis; they say they are not. And to allow the policy
question of same-sex marriage to be considered and resolved
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by a select, patrician, highly unrepresentative panel of nine is
to violate a principle even more fundamental than no taxation
without representation: no social transformation without
representation.
II
But what really astounds is the hubris reflected in today’s
judicial Putsch. The five Justices who compose today’s
majority are entirely comfortable concluding that every State
violated the Constitution for all of the 135 years between the
Fourteenth Amendment’s ratification and Massachusetts’
permitting of same-sex marriages in 2003. They have
discovered in the Fourteenth Amendment a “fundamental
right” overlooked by every person alive at the time of
ratification, and almost everyone else in the time since. They
see what lesser legal minds — minds like Thomas Cooley,
John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned
Hand, Louis Brandeis, William Howard Taft, Benjamin
Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson,
and Henry Friendly — could not. They are certain that the
People ratified the Fourteenth Amendment to bestow on them
the power to remove questions from the democratic process
when that is called for by their “reasoned judgment.” These
Justices know that limiting marriage to one man and one
woman is contrary to reason; they know that an institution as
old as government itself, and accepted by every nation in
history until 15 years ago, cannot possibly be supported by
anything other than ignorance or bigotry. And they are
willing to say that any citizen who does not agree with that,
who adheres to what was, until 15 years ago, the unanimous
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judgment of all generations and all societies, stands against
the Constitution.
The opinion is couched in a style that is as pretentious as its
content is egotistic. It is one thing for separate concurring or
dissenting opinions to contain extravagances, even silly
extravagances, of thought and expression; it is something else
for the official opinion of the Court to do so.2 Of course the
opinion’s showy profundities are often profoundly incoherent.
“The nature of marriage is that, through its enduring bond,
two persons together can find other freedoms, such as
expression, intimacy, and spirituality.” (Really? Who ever
thought that intimacy and spirituality [whatever that means]
were freedoms? And if intimacy is, one would think Freedom
of Intimacy is abridged rather than expanded by marriage.
Ask the nearest hippie. Expression, sure enough, is a freedom,
but anyone in a long-lasting marriage will attest that that
happy state constricts, rather than expands, what one can
prudently say.) Rights, we are told, can “rise ... from a better
informed understanding of how constitutional imperatives
define a liberty that remains urgent in our own era.” (Huh?
How can a better informed understanding of how
constitutional imperatives [whatever that means] define
2
If, even as the price to be paid for a fifth vote, I ever joined an
opinion for the Court that began: “The Constitution promises
liberty to all within its reach, a liberty that includes certain
specific rights that allow persons, within a lawful realm, to
define and express their identity,” I would hide my head in a
bag. The Supreme Court of the United States has descended
from the disciplined legal reasoning of John Marshall and
Joseph Story to the mystical aphorisms of the fortune cookie.
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[whatever that means] an urgent liberty [never mind], give
birth to a right?) And we are told that, “[i]n any particular
case,” either the Equal Protection or Due Process Clause
“may be thought to capture the essence of [a] right in a more
accurate and comprehensive way,” than the other, “even as
the two Clauses may converge in the identification and
definition of the right.” (What say? What possible “essence”
does substantive due process “capture” in an “accurate and
comprehensive way”? It stands for nothing whatever, except
those freedoms and entitlements that this Court really likes.
And the Equal Protection Clause, as employed today,
identifies nothing except a difference in treatment that this
Court really dislikes. Hardly a distillation of essence. If the
opinion is correct that the two clauses “converge in the
identification and definition of [a] right,” that is only because
the majority’s likes and dislikes are predictably compatible.) I
could go on. The world does not expect logic and precision in
poetry or inspirational pop-philosophy; it demands them in
the law. The stuff contained in today’s opinion has to diminish
this Court’s reputation for clear thinking and sober analysis.
Hubris is sometimes defined as o’erweening pride; and
pride, we know, goeth before a fall. The Judiciary is the “least
dangerous” of the federal branches because it has “neither
Force nor Will, but merely judgment; and must ultimately
depend upon the aid of the executive arm” and the States,
“even for the efficacy of its judgments.” With each decision of
ours that takes from the People a question properly left to
them — with each decision that is unabashedly based not on
law, but on the “reasoned judgment” of a bare majority of this
Court — we move one step closer to being reminded of our
impotence.
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Meeting 14: Review and Final Test
Below are some problems representative of those that could
appear on the final test.
1. In Marbury v. Madison, how did Marbury’s case come
before the Supreme Court? Supposing you are the
lawyer for Marbury and that this case had arisen
today, what could you do after losing the case (could
you still sue and would you likely be successful?), and
how could your case come before the Supreme Court
again?
2. A state passes a law providing: “The official language
of the State is English. The English language is the
language to be used by all public agencies in all
government functions and actions. The English
language shall be used in the preparation of all official
public documents and records, including all
documents officially compiled, published or recorded
by the government. Nothing in this section shall be
construed to prevent any private citizen from using an
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interpreter to communicate with state officials.”
(a) Make a textualist argument that this statute
permits a state agency to accept employment
applications completed in Spanish from private
citizens.
(b) How would an intentionalist analyze the question
in (a)?
3. The law in the above problem is challenged as
violating the Constitution’s guarantee of Equal
Protection.
(a) Argue that the statute in the above problem
should, under Carolene Products, receive only rational
basis review. Why would this be a desirable result
even if you oppose the law on substance? Would it
survive rational basis review?
(b) Argue that the law should be subjected to strict
scrutiny. Why would this be a desirable result? Would
the law survive strict scrutiny?
4. Consider the following issue in tort law concerning the
liability of accountants. Assume that an accountant
supplied performed an audit on a financial company’s
balance sheet for a client but that the accountant’s
audit opinion was wrong and was performed
negligently (below the level of competency and care at
which accountants are expected to operate). Consider
four categories of potential plaintiffs, all of whom lost
money because of the audit: (1) the accountant’s
client, (2) non-clients whom the auditor knew would
rely on the accountant’s work (banks known to the
auditor to have been considering loans to the audited
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company, e.g.), (3) non-clients whom the accountant
should have known (but may not have known) would
rely on the audit, and (4) any entity that ultimately
relied on the negligently performed audit. The
question of which of these classes of people can sue is
a question of duty: to whom does the accountant owe
a duty of care. Using the rational actor model and law
and economics methodology, make an argument
concerning how far this duty should extend. (And
assume that these plaintiffs could otherwise show that
reliance on the audit caused them to lose money and
that the accountant has no other defenses.)
5. We discussed the doctrine of stare decisis (adhering to
precedent) in the context of Planned Parenthood v. Casey.
Legislatures, in contrast, will repeal laws if a new
majority disagrees with the decisions of past
legislatures. And new presidents routinely pursue
policies opposite those of past administrations. Why
are courts different, and how do the criteria for
departing from precedent given in Casey take account
of those differences?
6. Suppose a federal statute provides for penalties for
“the interstate distribution of any food product
containing food coloring additives that may have
negative impacts on human health.” The Food and
Drug Administration, the agency charged with
administering the statute, issues a Notice of Proposed
Regulations that, among other things, proposes to
require that any food coloring additive in a food
shipped in interstate commerce have been proved safe
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in a double-blind, longitudinal study of at least twenty
years’ duration. The upshot is that they’re requiring
the additive to have been studied over a very long
period in an expensive way. If you’re the lawyer for a
company that produces such additives, how would
you explain to your client what its options are for
stopping this - not only, ultimately, in court, but before
that point as well.
7. A libertarian group had fought the food-coloring
statute just discussed. They argued that it was a big
government move to deprive citizens a chance to
decide for themselves what foods they wanted to eat a most basic liberty.
(a) Would the law likely improve efficiency? (Think
about whether individual transactions without the law
are efficient, as we usually assume contracts are. What
could be going wrong?)
(b) Do you think Nozick’s theory would condemn this
law? What about other theories of distributive justice?
8. William Eskridge has argued that courts can be part of
the solution to the imbalance of interest groups in the
legislative process that leads to rent-seeking legislation
and not enough legislation in the broader public
interest. Courts, he argues, do not have similar
problems and can correct this imbalanced by
interpreting public interest provisions in statutes
broadly to protect the public and interpreting more
narrowly those provisions that advantage narrow
interests. Why aren’t courts subject to the same public
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choice dynamics as legislatures? (Think about interest
group formation and the judicial process.)
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