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.

11 comments:

  1. I'm not sure I understand what you're looking for, so maybe this doesn't answer your question. In Guinn v. Legislature, 119 Nev. 277 (2003), the constitutional issue was how two clauses in the state constitution interacted. The "constitutional" effect of the case, however, easily transcends those boundaries.

    The Nevada constitution has a clause that requires the legislature to fund public schools. A few years ago, Nevada passed by ballot initiative a constitutional measure that requires a super-majority vote to increase taxes.

    The legislature hit a deadlock that year. Proponents of a tax increase argued that they could not fund the schools unless they raised taxes, because state revenues had already been apportioned for the biennium. Opponents argued that the whole budget should be revisited to cut down other spending and make provision for schools. The legislative session expired without a budget. The governor twice called special sessions, both of which ended in deadlock.

    The governor sued the legislature and its members individually, seeking a writ of mandamus to get a budget passed. The Court issued the writ. In order to do so, it created a distiction between "procedural" and "substantive" constitutional clauses, deemed the latter controlling when two came in conflict, and therefore temporarily abrogated the supermajority requirement for a tax increase.

    Here's where the example starts to answer your question a little better. Although the Court (explicitly, anyway) viewed its role as resolving a conflict between two clauses, the people of Nevada viewed it as simnply favoring tax increases regardless of the means. Governor Guinn's approval numbers went into the tank and never recovered. In 2006, Justice Nancy Becker, an otherwise popular and respected judge (and the first who signed the decision to come up for re-election) was overwhelmingly voted out of office.

    The effect of the case in the popular mind was to tar the Supreme Court as pro-tax activists who needed to be punished. During the 2006 election cycle, the Supreme Court was forced to expressly overrule that portion of the Guinn decision which distinguished between procedure and substance.

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  2. Thanks for this, but this is a little different from what I'm looking for. As I'm reading it, this is a constitutional case that had popular political ramification that did not touch on popular perception of the constitutional per se. I'm looking for non-constitutional cases that do change popular perception about the nature of their constitution.

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  3. It altered popular perception in the sense that Nevadans lost a little more faith in their ability to change anything, even by ballot initiatives, when the initiatives were so easily ignored by a results-oriented judiciary.

    Okay, back to the drawing board. Incidentally, I'd get a real kick out of you trying to attribute some random internet guy who pretends to be an ancient Egyptian crocodile god.

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  4. Are you kidding, in (legal) academics, a citation to an ancient Egyptian crocodile god would be golden -- simply golden. And I'd actually be able to do a quote!

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  5. Really? 'Cause I just checked the Bluebook, and it wasn't helpful at all.

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  6. Eugene Volokh had an interesting column in today's LA Times -- titled "A gag order on parents?" -- that may fit the bill. It is regarding a case that deals with family law, with possible 1st Amendment implications.

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