Monday, February 05, 2007

Constitutional Law without Constitutional Judgments

Over the past couple of months, I’ve been looking at how courts can promote constitutional development outside of the formal realm of constitutional law. Perhaps the paradigmatic example of this are the courtmartial trails of Alfred Dreyfus in late 1890s. As is well know, these trials ultimately gave birth to the aggressive secularism that is even today characteristic of French constitutionalism. But these trials themselves did not revolve around a question of constitutional law. They were for the most part all criminal trials, in which the issue was generally whether or not Dreyfus passed secret information to the Germans.

What happened was that the procedures that underlie these trails were flawed. And in popular discussions of the flaws of these trials, people began to attribute these flaws to French anti-Semitism. The flaws were themselves never corrected – Dreyfus was pardoned, but never acquitted. So the constitutional transformation that these trials provoked lie outside its formal ‘doctrinal effect’.

In fact, once one starts looking, it is not hard to find cases like this – they are ubiquitous, even appearing in places like one-party China. But curiously, I am finding it difficult to find examples from the United States. The two that come readily to mind are the Scopes Monkey Trial, which ultimately completed the secularization of American political discourse (up until recently) and the Leopold & Loeb trial, which some have argued was the first trial to make people question whether capital punishment might itself be cruel and unusual (and more broadly introduced the idea that compassion was a valid factor in criminal sentencing). (Another example would be Zunger, but I’m interested in more recent cases)

But maybe I’m not looking hard enough. Therefore, I would like to ask readers to suggest additional American cases that might fit this bill. Cases affecting state constitutions would also be most welcome. If I use your example in my book, I’ll make sure to give you credit.