Legal Commentary

Kennedy v Louisiana was the latest SCOTUS decision to survey state legislation as a basis for inferring American constitutional norms. Aside from the Eighth Amendment cases that use state legislation as the basis for inferring a national ?consensus? supporting or condemning a practice, there are several important Due Process cases that survey state laws to infer whether some particular state?s law offends some evolving norm of decency, including Glucksberg, Lawrence v Texas, and Troxel.

As a certified federalism nut, I'm inclined to support this method of filling in vague constitutional provisions -- ?cruel and unusual punishment,? ?due process,? etc. It is easy to see how such a state survey can be an ersatz substitute for the Article V amendment process, thereby legitimizing what would otherwise be pure judicial ipse dixit. But Kennedy suggests to me that the practice presents two, perhaps insurmountable difficulties. First, by effectively nationalizing and constitutionalizing the legislative outcome in some critical mass of states, the SCOTUS raises the stakes of individual state?s legislation enormously, inducing national interest groups to exert enormous pressure on what would otherwise be purely state concerns. Second, it is a difficult business trying to interpret the sound of state legislative silence -- states' failure to enact some challenged law -- and I am doubtful that SCOTUS is equal to the task.

I?ll say a bit more about both of these two difficulties after the jump. But I should declare up front that I find myself in the unusual state of having no opinion on this issue -- yet I have promised to produce an essay on the topic by next Wednesday. Any thoughts, citations, or advice on this topic, therefore, would be even more appreciated than usual.

First, is it a good idea to nationalize state legislative debates? By counting up states to resolve federal constitutional controversies, SCOTUS raises the stakes of individual state?s legislation enormously. A proposal in the South Dakota legislature to, say, impose the death penalty for child rape or expand grandparents? visitation now has federal constitutional consequences. The likely result is that national interest groups, Right and Left, will descend on the state house to exert pressure on the state legislative outcome wildly out of proportion to the immediate legislative stakes. I am not sure that this is a desirable outcome: When national mass-mail outfits (NARAL, the NRA, etc) battle it out in a state, the states are arguably transformed into echo chambers for D.C.-based groups, not independent assessors of local opinion. Compare the effect of giving state legislatures the power to choose federal Senators. This practice often caused state legislative elections to turn on the state legislative candidates? pledges to support one of the state?s candidates for U.S. Senate and the national issues on which those candidates run. By the time that the Seventeenth Amendment was ratified, numerous state legislatures were effectively selected on the basis of a state-wide Senate election ? destroying the ability of any state legislator to campaign on a local platform. Rather than provide state influence over Congress, state legislative selection nationalized the state legislatures.

Second, when state legislatures fail to enact some measure, this failure might be due to circumstances having nothing to do with public opinion regarding the measure ? for instance, the press of more urgent business or the belief that existing SCOTUS precedent prohibits the measure. (Justice Alito plausibly complained that the latter motive ? belief that Coker prohibited child rape statutes -- explained why states had not enacted such laws. If Alito was correct, then, by inferring a consensus against child rape death penalty from state inaction, the Court was simply looking in a mirror and finding its own opinions reflected back). One might usefully compare the problem of interpreting state legislative inaction with the problem of inferring whether congressional inaction suggests acquiescence in administrative agencies? decisions not to regulate. The efforts by Massachusetts v. EPA (on pages 8-9 of the slip opinion) to distinguish FDA v. Brown & Williamson indicate how evaluating such inferences can be a colossal headache. I doubt that SCOTUS could make such inferences about legislative silence for fifty state legislatures with any degree of plausibility.

As I noted above, I really do not have any firm opinion on this topic, and I need to get one soon. So your comments are, even more than usual, very welcome.